LW701 LEGAL RESEARCH METHODOLOGY

Alternative to Detention for Children in

Immigration Detention

Prepared by:

Shahizad Bin Sulaiman (Student No.:202035138)

Alani Zeyad Tareq Rashid (Student No.:2019479244)
Mohd Safuan Bin Muslim (Student No.:2020769679)
Muhammad Mujahid Bin Ahmad (Student No.:2020745827)
Background

Globalization has made the migration or movement of people from one country to another
becomes easier. There are various reasons for migration, among others, looking for job
opportunities, continuing studies, escaping from natural disasters, searching for protection
from sectarian wars and conflicts, and so on. However, each country has immigration laws to
ensure the sovereignty of their respective countries. The Malaysian Immigration Act 1959/63
provides the Immigration Department with the power to arrest and detain immigrants that
violated the immigration laws either by entering without proper document or overstaying of
permitted period. The arrested immigrants would be charged and subsequently sentenced prior
to being deported back to their country of origin.

As Malaysia is not yet a party to the 1959 Refugee Convention, the asylum seekers and refugees
are not spared from the enforcement of the law. Moreover, the Act does not exclude the
undocumented children from the arrest. It was reported that there were 1,763 children kept at
the Malaysian immigration depots in 20181. However, according to the Immigration
Department, the undocumented children were taken into their custody not on the basis of
violation of the immigration law, instead, the Immigration officers had to take the children
along for their safety as there were no adults to look after them when their parents or guardians
were arrested for immigration offences.2

The Human Rights Commission of Malaysia (SUHAKAM) has reported that almost all of the
Immigration depots are lacking adequate facilities especially for children, thus the detained
children suffer in the unconducive environment. The male children above the age of 12 are
placed in the cells with adult detainees. This practice by the Immigration department is clearly
a violation of the international standard on the separation of child detainee from the adult
detainee. This may affect the children development as it would have a long-term impact on
them.

1
https://www.malaysiakini.com/news/505276
2
https://www.malaymail.com/news/malaysia/2019/07/04/govt-mulls-alternative-care-for-children-of-detained-
illegal-immigrants/1768192

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As a state party to the Convention on the Rights of the Child (CRC), Malaysia is obliged to
comply with Article 37(b) of the Convention on the Rights of the Child (CRC), which states
that:
‘No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest,
detention or imprisonment of a child shall be in conformity with the law and shall be used
only as a measure of last resort and for the shortest appropriate period of time’.

With regard to the obligation under the above article, the CRC Committee recommended that
States should expeditiously cease the detention of children on the basis of their or their parents’
migration status and implement alternatives to detention. In this regard, the International
Detention Coalition (IDC) defines alternatives to detention as ‘any law, policy or practice by
which persons are not detained for reasons relating to their migration status.3 Alternatives to
detention for children and families include a range of options such as supported community
placement, including placement with host families, bail schemes to ensure compliance with
immigration proceedings or reporting requirements, or schemes whereby guarantors or
sponsors agree to support the care and supervision of a migrant family in the community4.

In South-East Asia, the Thailand Government has signed an intergovernmental Memorandum

of Understanding, to acknowledge that children should only be detained as a measure of last
resort and any detention period should be as brief as possible, and its priorities the best interests
of the child, affirming government responsibility to ensure children remain under their family’s
care. It stipulates that children should only be transferred into privately run shelters or
government custody as a measure of last resort.5 Whereas in Indonesia, the 2016 Presidential
Decree on the treatment of refugees and asylum seekers in Indonesia allows for the placement
of children into community housing facilities, instead of immigration detention.

The Human Rights Commission of Malaysia (SUHAKAM), together with Civil Society
Organisations (CSOs), have been advocating alternatives to detention for children (ATD) held
in immigration depots since 2014. Though there have been several discussions with the

3
https://idcoalition.org/wp-content/uploads/2015/10/There-Are-Alternatives-2015.pdf
4
Unicef Working Paper, Alternatives to Immigration Detention of Children, pg.1 , can be viewed at
https://www.unicef.org/media/58351/file/Alternatives%20to%20Immigration%20Detention%20of%20Children
%20(ENG).pdf
5
https://www.nationthailand.com/opinion/30363535

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Government and positive feedback was given during the talks, the ATD pilot project has yet to
be implemented.6

There are several researches on Alternative to Detention especially focusing on the best
practices in the implementation of ATD in several countries among others is ‘There Are
Alternatives: A Handbook for Preventing Unnecessary Immigration Detention’ by Robyn
Sampson and Grant Edward Mitchell. The UNHCR and UNICEF also produced report and
working paper on ATD highlighting the benefits of implementing ATD as well as some best
practises in certain countries.

Despite the clear direction to authorities to implement ATD and the best practises in other
countries, there is little clarity over how the ATD can be implemented in Malaysia. This study
is undertaken to address this gap. The aim is to identify and describe whether the existing
legislation, policy or practice in Malaysia are enough to implement ATD to enable
undocumented children to reside in the community with freedom of movement while their
migration status is being resolved or while awaiting deportation or removal from the country.

6
https://www.thestar.com.my/news/nation/2015/04/16/panel-to-look-into-alternatives-to-detention-of-children