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6 February 2019

While effective in Rahaf Mohammed Alqunun’s case, public mobilisation and international condemnation could push the Thai government to reaffirm its sovereignty over its borders through stricter immigration laws, Sébastien Moretti writes.    

Events surrounding Saudi Arabian teenager Rahaf Mohammed Alqunun and Australia-based Bahraini refugee and footballer Hakeem al-Araibi have attracted significant global attention over the past weeks.

While Rahaf Alqunun claimed asylum and seems to have been denied access to Thai territory, Hakeem al-Araibi – who Australia has recognised as a refugee – was arrested upon arrival at Bangkok’s Suvarnabhumi Airport after Interpol mistakenly issued a red notice warrant.

Ms Alqunun has since been resettled in Canada, whereas Hakeem al-Araibi remains detained in Thailand and awaits his next hearing after formally refusing Bahrain’s extradition request in court last Monday.

The two cases have put Thailand’s immigration policy under the global spotlight and have attracted significant criticism to the Thai Kingdom over its alleged “harsh treatment” of refugees and asylum seekers.

Little effort, however, has been made to understand Thai authorities’ approach to refugees and asylum seekers.

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Much less attention has been given by media to the fact that Thailand formally committed to end the detention of refugee and asylum-seeking children – an initiative that followed the September 2016 Leaders’ Summit on Refugees and that the UN’s High Commission for Refugees (UNHCR) described as a “positive example of Thailand’s humanitarian approach to refugees and asylum seekers”.

Amongst other pledges made in 2016, Thailand declared that it would develop an effective screening mechanism to distinguish those who are in need of protection from others who are not, and “strengthen the implementation of the principle of non-refoulement”.

Despite the fact that it is not party to the 1951 Convention, Thai authorities have committed to respect the prohibition of non-refoulement on many occasions.

While details of what happened at the airport remain largely unclear, from the outset, Thai authorities have been accused of actively seeking to return both Rahaf Mohammed Alqunun and Hakeem al-Araibi to their countries of origin.

Media and NGOs were quick to denounce Thailand’s poor track record when it comes to refugee protection, the fact that it regularly sends back refugees to their country of origin, and the fact that it prioritises its economic interests with countries such as Bahrain or Saudi Arabia over the protection of refugees.

However, while Thailand maintains a strong rhetoric when it comes to immigration – partially as an attempt to dissuade potential asylum seekers – the severity of the law is often mitigated by informal practices that seek to satisfy international human rights norms by ensuring de facto protection to refugees and asylum seekers.

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Under Thai law, people cannot claim asylum upon arrival. Nevertheless, asylum seekers in Thailand are not necessarily returned systematically to their countries of origin. Rather, they are typically referred to the UNHCR.

In such cases, they are considered de jure as irregular migrants within the territory of Thailand, while their presence is de facto largely tolerated. Should they possess a UNHCR registration card, they are, in principle, protected against arrest, detention, and a forced return to their country of origin.

While this process is far from ideal and is certainly not implemented as regularly as it should be, their informal arrangement with the UNHCR seeks to reconcile Thailand’s concerns over sovereignty and border control with a guarantee to a certain degree of international protection to those who need it.

Thai authorities were taken aback by the level of media attention garnered in the case of Rahaf Alqunun. Media were quick to declare her a refugee while Western social media championed her as a new icon in Saudi Arabia’s fight for women’s rights. Some say that it is thanks to this sudden international outcry that Alqunun was not returned to Saudi Arabia.

While Alqunun’s referral to the UNHCR was nothing particularly noteworthy, the speed at which the UNHCR recognised her as a refugee and at which she was resettled was certainly exceptional.

This decision is likely to set a precedent. While the UNHCR’s refugee status determination process in Thailand typically takes several months and resettlement – for those deemed eligible – takes years, in this case, it took no longer than a few days.

From the viewpoint of Thailand, however, this pressure may have been perceived as a new challenge to its sovereignty as the country was urged by international public opinion to accept Alqunun or to release al-Araibi with a complete disregard for its own legislation and processes.

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While the Head of Immigration Police in Thailand tried to deflect criticism by saying that the country would take a new approach and “follow international norms”, he also made it clear that the Thai government would not cave in from pressure when it came to such issues.

Less exposed to media attention until now, Hakeem al-Araibi’s case has become an opportunity for Thailand to reaffirm its sovereignty over immigration issues and to make clear to the international community that the Kingdom will be dealing with migration issues on its own terms and in line with its domestic laws.

The fact that Thailand considered Barhain’s extradition request for al-Araib in the first place does not necessarily mean that he will be returned to Bahrain.

On one hand, the court may consider the actions of al-Araibi as an exception to what would normally count as a political offence under the Thai Extradition Act. Al-Araibi could then be returned to Australia with the appearances of sovereignty intact.

In another scenario, the court may find al-Araibi as extraditable. While this would strongly confirm the so-called draconian policies of the Thai government with regard to refugees, it is unlikely that the decision would be enforced.

Al-Araibi’s case has already caused significant embarrassment to Thailand and could be solved quickly and discretely by handing him over to Australian authorities.

Keeping up appearances in matters of sovereignty – especially with respect to immigration policies – is extremely important for Southeast Asian states. Recent research highlights the paradox between strong law enforcement rhetoric and actual practices in the region that are more moderate.

While public mobilisation around issues concerning refugees and asylum seekers is welcome, extreme media exposure of specific cases may backfire. It could spur Thai authorities to adopt a tougher stance to demonstrate full and unswerving control of their borders.

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