Localized Refugee Protection in Thailand and Hong Kong and their National Security Concerns 

Guest post by Prima Sukmanop. Prima has extensive academic background and client-facing experience in international human rights law with a focus on asylum and refugees. She provided legal representation to asylum seekers undergoing the refugee status determination (RSD) procedures with the UNHCR; counselled forcibly displaced individuals for the National Screening Mechanism (NSM) with Thailand’s Immigration Bureau; and interviewed refugee applicants in Asia Pacific for third country resettlement. She graduated with a Bachelor of Laws (LL.B.) from Chulalongkorn University and is licensed to practice law in Thailand. 

In September 2023, Thailand’s Immigration Bureau initiated the National Screening Mechanism (NSM), where non-citizens granted the “Protected Person” status are permitted temporary residence and receive protection against forcible return to their countries of origin where they may face persecution, alongside access to education and healthcare.  

Thailand remains a non-signatory to the 1951 Refugee Convention and still criminalises irregular migration. While the NSM is a commendable effort towards migrant protection, its implementation under existing legal landscape may open door to certain loopholes, including exemptions from protection for “national security” purposes. 

The NSM is not a novel initiative from Thailand, but mirrors a previous development in Hong Kong: the Unified Screening Mechanism (USM). Thailand and Hong Kong are both refugee-hosting territories that have not acceded to the Refugee Convention nor its Protocol, but have acceded to 7 and 15 human rights treaties respectively. UNHCR has also had operational presence in conducting refugee status determination (RSD) in both territories. In 2004, Hong Kong implemented a screening mechanism that provides non-refoulement protection against forcible return of non-citizens to torture, which later expanded to include cruel, inhuman or degrading treatment or punishment in 2012 and persecution in 2014.  

Thailand’s NSM and Hong Kong’s USM reflect a new trend within Asia’s migration sphere: jurisdictions which are non-signatory to the Refugee Convention are initiating “localized” mechanisms that intend to provide domestic legal protection for forcibly displaced individuals. Nonetheless, there are concerning challenges to the NSM’s implementation, which may be traced back to 1) its status as part of domestic immigration procedures, which render its objective towards refugee protection secondary to border control and national security; and 2) its unclear criteria which may undermine its effectiveness of protection. 

First, applicants under the NSM and USM are required to self-surrender to immigration authorities and be criminally prosecuted for irregular entry and/or stay before applying for protection. Afterwards, they are detained in state-run immigration detention facilities as their claims are considered. Detainees may request to be released on bail by providing monetary security, subject to discretionary approval of immigration authorities. 

In Thailand, bail requests of individuals considered politically sensitive, which have consistently included Asian political activists and individuals from countries with strong diplomatic ties, are often denied. Moreover, the requirement for applicants to be criminally prosecuted before claiming protection may impact public perception of migrants and undermine the safe space that any protection mechanism ought to provide.  

Second, several aspects of the NSM demonstrate heightened level of securitisation and encompass criteria apart from individual risk of persecution, potentially diverting from its original objective towards protection. Notably, the NSM presents three “gap-filling” features for rejection, revocation, and deportation under national security grounds, raising concerns on transnational repression.  

1. The Committee may decide not to grant the Protected Person status to an applicant who has met all prescribed criteria if they view that doing so “may affect national security.”  

2. A Protected Person may not be protected from forcible return if “national security is threatened.”  

3. The status can be revoked if there is “reason to believe” that the Protected Person presents circumstances deemed as a “threat to national security, contrary to national interest, or contrary to public order and good morals.” 

Despite multiple references, “national security” is not defined under relevant laws. Decision-makers therefore hold broad discretion in determining whether a particular circumstance triggers any of the three grounds. This raises concerns, as such broad room for interpretation may be used arbitrarily. 

Third, the NSM’s broad scope of protection creates uncertainty. Generally, in territories party to the Refugee Convention, screening mechanisms that provide non-refoulement protection often stem from international refugee law. As non-signatories, Thailand and Hong Kong rely on general human rights obligations as bases for their protection. These obligations include the right to life, liberty, and security; freedom from torture, enforced disappearance, enslavement, or forced labour; and the “non-refoulement” custom which prohibits the removal or transfer of persons where there are substantial grounds that they would be at risk of irreparable harm upon return.  

At first glance, the reliance upon general human rights obligations appears to generate a broader protection scheme: in addition to the “well-founded fear of persecution” element central to international refugee law, the NSM and USM explicitly include risk of enforced disappearance; torture; and cruel, inhumane, degrading treatment as grounds to claim protection. The NSM also borrows the concept of “generalized violence” from the Cartagena Declaration and the OAU Convention. In addition to the five Refugee Convention grounds (nationality, ethnicity, religion, social group, political opinion), an applicant may seek protection from “continuous patterns of serious, blatant, or widespread violation of human rights; foreign aggression; territorial occupation; foreign domination; and incidents that lead to serious unrest in whole or in part of the state.” 

Despite the seemingly inclusive ground for protection, it is difficult to predict whether decision-makers will be lenient in assessing NSM claims. For instance, although the USM has a relatively broad criteria for protection, the Hong Kong Immigration applied an extremely high threshold in its assessment, resulting in a recognition rate of less than 1%. As for Thailand, more than 100 applicants have applied to the NSM, but most cases are still pending adjudication. Therefore, legal representatives should assist decision-makers by submitting reports that substantiate country of origin information (COI) and individual risk of persecution. 

Finally, the long-term pathway for Protected Persons is unclear. In Hong Kong, the UNHCR ceased its RSD operations but still assists in resettlement. In Thailand, the RSD takes place concurrently and separately from the NSM. Most applicants are UNHCR-recognized refugees who wish to accord domestic legal protection. Nonetheless, because the Protected Person status is temporary, applicants still rely on resettlement and complementary pathways to other governments.  

Thailand’s NSM reflects commendable refugee protection initiatives in Asia. However, the approach presents significant gaps through its criminalization and securitization of migration.  For greater effectiveness of protection, relevant authorities should exempt NSM applicants from immigration-related offences, consider written submissions from legal representatives during adjudication, and ensure access to permanent legal pathways for Protected Persons. 

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