Summary

Laila arrived in Malaysia in June 2021. Her husband, Amin, had paid smugglers to bring her from Buthidaung, in Myanmar’s Rakhine State, to Penang, Malaysia, where he had fled earlier. The couple, both 22 at the time, were seeking to escape the Myanmar military’s persecution and oppression of Rohingya Muslims which they had endured for most of their lives.

After a grueling three-week journey, Laila arrived at the smugglers’ house in Kelantan in Malaysia’s northeast. Three days later, Malaysian authorities raided the building, arresting her and eight other women. She was held for two weeks at the police station before being sent to an immigration detention center. She remains detained today, more than two years since arriving in the country to seek asylum.

Laila has spent the years in squalid conditions, squeezed into blocks with over 100 women and girls, under the control of erratic and abusive officers. When scabies spread through the cell, officers denied her medical care and refused to pass along the medicine her husband brought. Guards have cut her hair and withheld food as punishment for being “noisy.”

While Amin previously was able to visit Laila, he has not been allowed to see or call her for more than five months.

Laila has no access to the United Nations refugee agency, UNHCR. “I ask the immigration officers when my wife will be released—they say I have to wait for UNHCR,” Amin said. “But UNHCR doesn’t visit the immigration detention center. When I ask UNHCR, they say it’s the Immigration Department that doesn’t allow them to visit the detention centers.”

Laila is in asylum-seeker’s limbo, facing persecution if returned to Myanmar and endless detention under Malaysia’s draconian immigration enforcement regime.

“They get yelled at often and sometimes beaten,” Amin said. “The officers scold them: ‘Who gave you permission to come to this country? This is not your country. We did not ask you to come here.’”

* * *

Laila is one of about 12,000 refugees, asylum seekers, and migrants being held in 20 immigration detention centers across Malaysia. Every year, the Malaysian government detains, often arbitrarily, thousands of irregular migrants, including refugees, asylum seekers, and children, in conditions that put them at great risk of physical abuse and psychological harm.

Malaysian law makes all irregular entry and stay in the country a criminal offense, with no distinction among refugees, asylum seekers, trafficking victims, and undocumented migrants. Anyone without valid documentation is considered an “illegal” or “prohibited” immigrant and subject to arrest, detention, and deportation. A conviction for irregular entry into the country carries a penalty of up to five years in prison and six strokes of the cane.

Malaysia places no legal limit on the length of immigration detention, leaving migrants at risk of being detained indefinitely. The Global Detention Project, which analyzes migration-related detention practices around the world, has called Malaysia’s immigration enforcement regime “one of the world’s more punitive, arbitrary, and harmful systems.”

Malaysia has not signed or ratified the 1951 UN Refugee Convention or its 1967 Protocol. The country lacks any legal framework or procedure for determining refugee status and providing recognition and protection to asylum seekers. More than 180,000 refugees and asylum seekers are registered with UNHCR—including at least 100,000 Rohingya. None have legal status. Unofficial tallies of undocumented migrants range from 1.2 to 3.5 million, many of them living in precarity, at constant risk of arrest.

Anti-migrant policies and practices as well as xenophobic rhetoric have risen in Malaysia in recent years. Two successive nationalist coalition governments that led the country from March 2020 to November 2022 tightened control over migrants, instrumentalizing the Covid-19 pandemic to carry out a widespread crackdown with regular raids that continue to the present. Police, immigration, and customs officers possess broad powers to search, arrest, and interrogate under Malaysian law. Authorities have taken into custody more than 45,000 irregular migrants since May 2020, according to government reports.

Migrants are held arbitrarily, without recourse to judicial review or mechanisms to appeal their detention. Malaysia’s use of prolonged, judicially unsupervised immigration detention violates international human rights law. Detention for immigration-related reasons is harmful when arbitrary—that is, not for the limited and necessary purpose of ascertaining a person’s identity or effectuating their lawful removal.

While many detainees are never convicted or sentenced for their immigration violations, all are treated punitively: handcuffed and searched, restricted to small spaces with rigid routines under constant surveillance, with severely limited access to the outside world.

Immigration detainees can spend months or years in overcrowded, unhygienic conditions, subject to degrading treatment and physical and psychological abuse by guards, without domestic or international monitoring. Detained refugees and asylum seekers are generally incarcerated for longer periods with less access to the outside world than other migrants.

Former detainees describe an existence regulated by strict and arbitrary rules and the ever-present threat of punishment. They report officers forcing them to hold stress positions, hang off the wall “like geckos,” or do hundreds of squats and pushups. Beatings for being noisy or making requests are common. “We would get beaten when we asked for more food, took an extra mug of water to shower, or asked for a blanket for the cold,” said Ali, a Rohingya refugee detained at Belantik Immigration Detention Center (IDC).

Detainees are required to present themselves for “muster calls,” or roll calls, several times a day. At some immigration detention centers, also known as depots, each muster could last hours, with detainees required to stay silent, heads down and not moving, even to use the bathroom. “If we made any noise, we would be punished, like hanging from the wall, pushups, squats, walking like ducks, or standing under the hot sun for hours,” said Kartini, an Indonesian woman held in Tawau Immigration Detention Center. Women detainees report facing degrading treatment and gender-based abuses, such as having to do squats while being strip searched and having their hair forcibly cut.

The Malaysian government has denied UNHCR access to immigration detention centers since 2019, leaving the agency unable to review asylum claims or protect detainees registered as refugees. Detained refugees report officers hitting and yelling at them for asking to meet with UNHCR. Some witnessed officers destroying UNHCR refugee cards.

“The officers got angry when I asked to meet UNHCR,” said Hussein, a Rohingya refugee. “When I asked, they would hit us on our hands and feet. They would threaten us: ‘Don’t ask questions. Just sit here. You can’t go back to your country.’” Hussein has been arrested multiple times despite having been registered with UNHCR since 2016, spending a total of seven years in various immigration detention centers.

Some refugees report officers using violence to coerce them to return to their countries of origin, in violation of the international principle of nonrefoulement, the right not to be returned to a country where one’s life or freedom would be threatened. The principle of nonrefoulement is recognized as customary international law and is binding on all countries.

Both ill-treatment and inadequate medical care have led to hundreds of deaths in immigration detention facilities in recent years. One migrant worker described officers torturing him and 13 others for days after they tried to escape, beating them with bricks and batons and standing on their chests. Two of the detainees ultimately died.

Medical care in immigration detention is inadequate, with unscheduled access to doctors restricted to emergencies. Interviewees witnessed 15 deaths due to illness or poor health care. The Home Ministry reported 247 deaths in immigration detention from 2021 to mid-2022, including four children, due to tuberculosis, pneumonia, heart disease, dengue, diabetes, and other causes. Scabies is rampant, spreading untreated amid the overcrowded, unsanitary cells.

Former detainees describe a bare and brutal existence inside the depots, with limited food, frequent water shortages, and a lack of blankets or hygiene supplies. Some report having to sleep on their sides in rows due to overcrowding, “squeezed in together like sardines.” Corruption and bribes among guards are commonplace.

Humanitarian staff and former detainees said that conditions in immigration detention facilities are worse than in Malaysia’s prisons. At least in prison, one migrant worker said, they gave him soap and a change of clothes, and he was allowed to leave his block.

Among the most victimized in Malaysia’s immigration detention system are children. More than 1,400 children are detained in depots, two-thirds of them unaccompanied or separated. Children are detained with unrelated adults, at times separated from their families and deported alone. Women have given birth at the depots and remained detained with their newborns, without postpartum care or necessities such as diapers and formula.

Children frequently face the same abuses as adult detainees, including denial of medical care, inadequate food, and ill-treatment. Malnutrition is widespread. The government reported that seven children died in immigration detention in 2022, with no details on the causes. Ali witnessed officers beating a 9-year-old boy who had asked for more bread. When he asked the officers to stop hitting the child, Ali was held in a water tank overnight and beaten if he tried to stand up.

The Malaysian government’s immigration detention of children contravenes the growing consensus that the practice is an outright violation of international law and stands in opposition to global efforts toward its full elimination. Although the government has discussed for years alternatives to detention for children—including in its pledges to the UN Human Rights Council—there has been little progress. Rather than developing non-custodial, community-based alternatives, the government launched the Baitul Mahabbah program in late 2023, moving a few dozen children to two new temporary centers, where they will remain under guard of immigration officials and a volunteer security corps until their deportation. The program will expand in 2024.

While many governments have taken steps toward more humane alternatives for managing migrants and asylum seekers with unsettled legal status, the Malaysian government has ramped up raids, detentions, and summary deportations. At least five new immigration detention centers have been established since 2018.

While international human rights law recognizes a state’s authority to control its borders, UN guidance has concluded that the criminalization of irregular entry or stay will always exceed the legitimate interest of governments to regulate migration and therefore lead to arbitrary detention. The UN Working Group on Arbitrary Detention has called for immigration detention to be gradually abolished, stating that “migrants must not be qualified or treated as criminals” and that immigration detention should only be used “as an exceptional measure of last resort, for the shortest period and only if justified by a legitimate purpose, such as documenting entry and recording claims or initial verification of identity if in doubt.”

The Malaysian government should adopt initiatives to reduce its reliance on immigration detention and move toward abolishing it entirely. Authorities should immediately cease detaining refugees, children, trafficking victims, and other vulnerable migrants for immigration-related reasons, and establish safe screening processes to identify and release such at-risk detainees. Immigration detainees should be provided with access to justice and redress, including legal aid resources and avenues to challenge the grounds of their detention.

The government should grant UNHCR, independent monitors, and humanitarian agencies unfettered access to immigration detention centers. It should enact legislation that establishes criteria and procedures for recognizing refugee status and providing asylum.

The Malaysian government should urgently improve conditions in immigration detention centers to meet international standards, including ensuring detainees are treated in a humane and dignified manner. Judicial authorities should thoroughly investigate all allegations of abuse and hold the perpetrators to account.

Resources should be shifted from immigration detention centers to community-based alternatives to detention, with access to public services, housing, legal services, education, and health care. Alternatives have proven to be healthier and less costly than detention, as well as being effective in achieving immigration enforcement objectives. The government should engage experts to help build out alternatives to detention that focus on facilitating the resolution of immigration and asylum claims within community settings, preserving migrants’ right to liberty.

Various alternatives to detention are available to Malaysia that would not only counteract abusive and unnecessary immigration detention, but also make the immigration system more cost-effective, efficient, and humane.

 

Recommendations

To the Government of Malaysia

• Enact legislation and implement policies to end the use of arbitrary and prolonged immigration detention, with an aim toward gradually abolishing immigration detention in full.
• Immediately cease detaining refugees, children, trafficking victims, and other vulnerable migrants for immigration-related reasons, and establish safe screening processes to identify and release such at-risk detainees.
• Establish a limit on the length of time individuals may be held in immigration detention, make all efforts to minimize the period of detention, and subject cases of continued detention to periodic review.
• Shift funding and resources from immigration detention centers to community-based alternatives to detention, with access to public services, housing, legal services, education, and health care.
• End the practice of judicially unsupervised detention. Ensure all migration-related cases are reviewed promptly and periodically by a judicial authority.
• Grant immigration detainees access to legal aid resources and avenues to challenge the grounds of their detention.
• Ensure that immigration officers are able to communicate with migrants and refugees in their own language, with interpreters as needed.
• Ensure that migrants in detention have the means to communicate with family members, UNHCR, and legal representatives.
• Regularly make public comprehensive, disaggregated data on immigration detention centers and detainees.
• Implement programs to legalize the status of undocumented migrant workers and address corruption and exploitation by employers of migrant workers.
• Amend the Immigration Act, Passport Act, and other relevant legislation to remove criminal penalties for irregular entry and stay.
• Amend legislation including the Immigration Act to abolish the use of judicial caning as punishment in all cases.
• Ratify the 1951 Refugee Convention, its 1967 Protocol, and the 1990 Migrant Workers Convention.
• Ratify the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and the International Convention on the Elimination of All Forms of Racial Discrimination.

Refugee Protection

• Immediately release from immigration detention all refugees and asylum seekers registered with UNHCR and ensure refugees’ access to protection and assistance in Malaysia.
• Grant UNHCR immediate and unfettered access to immigration detention centers to identify, assist, and protect asylum seekers and refugees.
• End summary deportations of asylum seekers and refugees and develop regulations to ensure that all future returns are carried out in full compliance with the principle of nonrefoulement and other standards of international law.
• Amend the Immigration Act to formally protect asylum seekers and refugees from penalties for irregular entry.
• Enact legislation that establishes criteria and procedures for recognizing refugee status, providing asylum, and other forms of protection, in line with international standards.
• Direct police and immigration officers not to arrest on immigration enforcement grounds refugees and asylum seekers who have been issued UNHCR cards.
• End forced returns of Rohingya and other refugees seeking asylum by land or sea and instead ensure they receive humanitarian aid and access to UNHCR.
• Provide opportunities in Malaysia to UNHCR-recognized refugees, including facilitating their access to employment, education, health care, and legal aid.
• Cooperate with UNHCR and other governments to facilitate resettlement of refugees to third countries.
• If voluntary repatriation or third country resettlement are not foreseeably possible for UNHCR-recognized refugees in Malaysia, progressively provide opportunities for their social integration and naturalization.

Detention Conditions

• Urgently improve conditions in immigration detention centers to meet international standards, including ensuring detainees are treated in a humane and dignified manner, with sufficient access to space, food, water, adequate medical treatment, and sanitation.
• Immediately end the use of beatings and other ill-treatment of immigration detainees, establish clear rules of conduct for immigration detention officers, and engage UNHCR in providing trainings on treatment of immigration detainees.
• Establish a confidential, secure mechanism for immigration detainees to report abuse.
• Thoroughly investigate any allegations of abuse by government officials and hold perpetrators to account.
• Allow the regular inspection of immigration detention conditions by an independent body and make public its findings. Grant the Human Rights Commission of Malaysia, SUHAKAM, and nongovernmental human rights organizations access to ensure compliance with international standards.
• Take steps to protect and meet the needs of women detainees, including establishing effective systems for preventing and reporting sexual and gender-based violence and providing adequate sexual and reproductive health care.
• Grant nongovernmental organizations regular access to provide legal, medical, and psychosocial assistance to immigration detainees.

Children in Detention

• Enact legislation and implement policies to abolish the immigration detention of children and families, regardless of nationality or citizenship status. Until family detention is ended, avoid separating family members.
• Adopt alternatives to detention that fulfill the best interests of the child and allow children to remain with their family members or guardians in noncustodial, community-based settings.
• Until children are no longer detained, ensure that their detention is neither arbitrary nor indefinite, and that they are able to challenge their detention in a timely manner.
• Ensure detained children are not commingled with unrelated adults.
• Provide appropriate, age-specific education to all children being held in detention facilities until alternatives to child detention are in place.
• Withdraw all reservations to the UN Convention on the Rights of the Child and amend national laws to conform with the treaty. Specifically, revoke reservations to articles 7, 28(1)(a), and 37, relating to birth registration, universal primary education, and detention of children.
• Ensure that all children born in Malaysia, regardless of nationality, are registered upon birth and provided with birth registration documents.

To UN Agencies, including UNHCR and the International Organization for Migration

• Advocate to Malaysian authorities to end arbitrary immigration detention, and publicly and regularly communicate concerns about immigration detention and the failure of current laws and practices to meet international standards.
• Publicly call on the Malaysian government to halt summary deportations of asylum seekers, to recognize UNHCR status determinations, and to end immigration detention of refugees, children, and other vulnerable migrants.
• Pressure Malaysian authorities to grant UNHCR unfettered and unscheduled access to immigration detention facilities to review asylum claims, provide assistance, and monitor the conditions of confinement, along with the International Organization for Migration (IOM).
• Adopt measures to speed up refugee status determination in Malaysia, especially for detainees.
• Engage judicial authorities upon the arrest of refugees and asylum seekers to promptly seek their immediate release.
• Urge the Immigration Department to improve conditions of detention and bring them into compliance with international human rights standards.
• Support the resettlement of refugees in third countries while pressing the government to fully integrate refugees into Malaysian society with access to services.
• Provide training, technical advice, and guidance to the Malaysian government on developing its own asylum procedures, including offering trainings to police officers, immigration officials, and judges.
• Provide the Malaysian government with guidance on best practices and international standards for developing alternatives to detention.

To the Association of Southeast Asian Nations (ASEAN)

• Uphold refugee and migrant rights in all immigration enforcement policies and practices across the region.
• Fulfill the ASEAN Declaration on the Rights of Children in the Context of Migration and its Regional Plan of Action by prioritizing migrant children’s best interests, including developing alternatives to immigration detention and urging fellow members to cease detaining children.
• Utilize regional forums to convene government and civil society actors for sharing lessons learned and best practices on alternatives to detention.
• Prioritize ending immigration detention of children in formal discussions at the Bali Process on People Smuggling, Trafficking in Persons, and Related Transnational Crime.
• Commit the Bali Process to improving the regional response to irregular migration through people-centered and rights-respecting collective responsibility.
• Respond urgently to refugee boats in distress, end pushbacks, and ensure refugees’ access to aid and protection via UNHCR.

To Governments in Migrant Countries of Origin

• Engage Malaysian authorities, IOM, and UNHCR to support the voluntary return of migrant workers in detention from Malaysia to their countries of origin and assist with the reintegration process, including providing health and psychosocial services.

• Provide migrant workers with information on their rights, how to effectively navigate Malaysia’s legal framework for migrant workers, and how to access crisis support and legal assistance in Malaysia.
• Report allegedly abusive employers and recruitment agencies to the Malaysian authorities for investigation and prosecution as appropriate.

To Donor and Resettlement Governments

• Urge the Malaysian government to end prolonged and arbitrary immigration detention of migrants, asylum seekers, and refugees and halt summary deportations of refugees and asylum seekers.
• Facilitate and provide support for community-based alternatives to detention.
• Encourage the development of refugee law and procedures in Malaysia according to international standards.
• Call on the Malaysian government to grant UNHCR unfettered and unscheduled access to immigration detention centers.
• Promote equitable responsibility sharing among the United States, United Kingdom, European Union member states, Australia, Canada, and other key countries, including through the resettlement of asylum seekers and refugees.

 

Methodology

This report is largely based on extensive interviews conducted between January and March 2023 with 43 people, including 23 men and women who had been held in immigration detention in Malaysia. A focus group discussion was also held with 36 former detainees. Interviews were carried out in six states in Malaysia and in Indonesia.

The former detainees were from Myanmar, Indonesia, Syria, and Palestine. Some had been held in immigration detention multiple times. Their most recent detention took place from 2019 to 2023, for periods ranging between three months and three years. Interviewees had been held in eight immigration detention centers: Tawau, Kuala Lumpur International Airport (KLIA), Millennium (temporary), Belantik, Tanah Merah, Pekan Nenas, Ajil, and Kemayan. At least six interviewees were UNHCR-registered refugees.

Interviews were also conducted with 20 lawyers, former Malaysian government immigration officials, family members, healthcare workers, representatives from oversight bodies, and staff from nongovernmental organizations with experience working in immigration detention centers and among migrant and refugee communities.

Most interviews were conducted in Bahasa Malaysia, with a small number held in Bahasa Indonesia, English, and, via an interpreter, Rohingya. The majority of interviews took place in-person, with a small number taking place via phone or video call.

Interviewees were informed of the purpose of the interview and the way in which the information would be used. No remuneration or incentives were promised or provided to people interviewed. All interviewees were asked to consent before the interview began and were told they could decline to answer questions and end the interview at any time.

Researchers also reviewed relevant documents, including parliamentary records, laws, policies, and other government publications; medical records; academic papers; and reports by nongovernmental organizations (NGOs), the UN, and media.

The names of former detainees and their family members have been replaced with pseudonyms for their protection. The names of other interviewees, including former government officials, service providers, and NGO staff members, have been withheld to protect them and their beneficiaries from reprisals by immigration authorities.

Human Rights Watch sent a letter to the Malaysian Ministry of Home Affairs requesting input regarding the report findings but did not receive a response at time of writing.

 

I. Paths to Immigration Detention

Unofficial tallies of undocumented or irregular migrants in Malaysia range from 1.2 to 3.5 million, on top of the 2.2 million documented migrant workers who alone make up an estimated 15 percent of the Malaysian workforce.[1] Malaysia is a major destination country for migrant workers seeking economic opportunities in agriculture, manufacturing, construction, domestic work, and other industries that have become reliant on foreign labor. Migrant workers’ countries of origin include Indonesia, Bangladesh, Nepal, Myanmar, India, and Cambodia, among others.

An estimated 181,560 refugees and asylum seekers are registered with the United Nations refugee agency, UNHCR, in Malaysia, but are not granted legal status.[2] The majority of UNHCR-registered refugees are from Myanmar—over 150,000, including over 100,000 Rohingya Muslims—while the remainder are from Pakistan, Afghanistan, Yemen, Somalia, Syria, and elsewhere. About 50,000 are children.[3]

Domestic Legal Framework

Malaysia’s Immigration Act 1959/63, the country’s primary immigration legislation, does not differentiate among refugees, asylum seekers, trafficking victims, and undocumented migrants, nor between adults and children. All those without valid entry permits or passes are considered “illegal immigrants,” or PATI (pendatang asing tanpa izin), and subject to arrest, detention, and deportation.[4] 

Irregular entry into the country carries a penalty of up to five years in prison, a fine of up to 10,000 RM (US$2,100), and up to six strokes of the cane.[5] Anyone entering or residing in Malaysia without proper documentation is subject to detention and deportation regardless of “whether or not any proceedings are taken against him in respect of the offence.”[6]

The Immigration Act provides no time limits for detention. Under section 34(1), a person who has been identified for deportation “may be detained in custody for such period as may be necessary for the purpose of making arrangements for his removal.”

The act also bars a broad range of “prohibited immigrants” from entering the country, including anyone unable to show they can support themselves or have employment waiting and anyone who lacks valid travel documents.[7] This applies to the majority of Rohingya, who have been denied access to passports and other identity documents by the Myanmar authorities as part of a decades-long effort to erode their citizenship and right to nationality.[8]

The Immigration Act grants police, immigration, and customs officers broad powers to search, interrogate, and arrest without a warrant “any person who he reasonably believes has committed an offence against this Act” or “any person reasonably believed to be a person liable to removal from Malaysia.”[9] Similar powers are enshrined in the Passports Act 1966.[10]

Officers are permitted, without a warrant, to “enter and search any premises,” to “stop and search any vessel, vehicle or person … whether in a public place or not,” and to require any person to produce documents or other evidence.[11] Failing to comply with an officer’s inquiries or produce requested documents carries a penalty of up to five years in prison.

The individual bears the burden of proving that they entered and remain in Malaysia lawfully and are not a “prohibited immigrant.” Anyone who fails to produce a valid permit, pass, or other document is presumed to have “entered or re-entered or remained in Malaysia unlawfully.”[12]

Two unpublished policies reportedly provide a modicum of ad hoc protection for UNHCR-registered refugees and asylum seekers.[13] The National Security Council (MKN) Directive No. 23, “Mechanism for the Management of Illegal Immigrants Holding UNHCR Cards,” issued in 2009, ostensibly allows registered refugees to stay in Malaysia temporarily on humanitarian grounds on a case-by-case basis. And a circular issued by the Attorney General’s Chambers in 2005 presumably provides a degree of immunity from prosecution for registered refugees.[14] Yet neither is implemented systematically or meaningfully.[15] The government has claimed to be revising MKN No. 23 since at least 2020, but no changes have materialized.[16]

Malaysia’s Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 criminalizes trafficking into forced labor and forced prostitution and the facilitation of irregular migration into or out of Malaysia.[17] Despite recent amendments expanding the definition of trafficking, authorities have continued to limit prosecutions under the law to cases involving physical restraint, often precluding other forms of coercion.[18] The government has failed to adequately implement the standard operating procedures for victim identification that were adopted in April 2020.[19]

Crackdowns on Refugees, Migrants

Recent years have seen a rise in anti-migrant policies and practices as well as xenophobic rhetoric across Malaysia. Lack of adequate protections for migrants and refugees leaves many exposed to situations of exploitation and abuse without redress. They are often reluctant to seek police protection given the constant threat of being detained for immigration violations.

Two successive nationalist coalition governments that led the country during a period of political instability from March 2020 to November 2022 took a hardline approach to refugees and migrants, instrumentalizing the Covid-19 pandemic to carry out a widespread crackdown.

Little has changed under the new government led by former political prisoner Anwar Ibrahim. As opposition leader, Anwar had criticized the government’s anti-migrant rhetoric and treatment, while his party had once pledged to ratify the Refugee Convention and formalize refugees’ right to work.[20] He tweeted in June 2021: “I am shocked and appalled by the arrogant and isolationist rhetoric used by the Home Minister with regards to the request to observe immigration detention depots by the United Nations High Commissioner for Refugees (UNHCR).”[21]

Since becoming prime minister in November 2022, however, Anwar has largely failed to uphold his reform pledges in service of maintaining his coalition.[22] Raids on migrant and refugee communities and the ban on UNHCR access to immigration detention centers continue to the present.[23]

Both documented and undocumented migrant workers in Malaysia face a range of entrenched abuses from employers, including deceptive recruitment practices, wage theft, passport confiscation, and unsafe living and working conditions, all indicators of forced labor.[24] High recruitment fees and other migration costs along with corruption among officials contribute to migrants’ vulnerability to debt-based coercion.[25]

In 2021 and 2022, the United States government ranked Malaysia at Tier 3, the lowest grade, in its annual Trafficking in Persons report for failing to meet the minimum standards for eliminating trafficking or make significant efforts to do so.[26] Malaysia was upgraded to Tier 2 Watch List in 2023 but continues to not meet the minimum standards to eliminate trafficking. The report stated that “the majority of victims are among the estimated 1.5 million documented and an even greater number of undocumented migrant workers in Malaysia.… Due to a lack of formal identification procedures, authorities likely detained, arrested, and deported some unidentified trafficking victims.”[27]

Malaysian authorities have retaliated against critics of government policies toward refugees and migrants. In July 2020, after Al Jazeera aired a documentary about Malaysia’s treatment of migrant workers during Covid-19, the police investigated the news agency for sedition, defamation, and violation of the Communications and Multimedia Act, questioning staff members and raiding their offices. A migrant worker featured in the documentary was arrested and deported to Bangladesh.[28]

Activist Heidy Quah was charged twice, in 2021 and 2023, under section 233 of the overbroad Communications and Multimedia Act 1998 for a 2020 Facebook post criticizing conditions in immigration detention.[29]

Malaysia has not ratified the 1951 Refugee Convention or its 1967 Protocol and lacks domestic asylum laws for determining refugee status and providing recognition and protection. As a result, processing asylum requests falls to UNHCR, which provides cards recognizing individuals and families as refugees. Yet UNHCR’s process can entail significant delays, and the cards provide only ad hoc protection, to the extent Malaysian officials respect UNHCR-issued documentation.[30]

Even with recognition from UNHCR, refugees and asylum seekers have no legal status under Malaysian law, leaving them unable to work legally or enroll in government schools.

The authorities have denied UNHCR access to immigration detention centers since August 2019, leaving the agency unable to assess refugee claims of those in detention or assist detainees with UNHCR cards.[31] At least six interviewees were detained despite being registered with UNHCR.[32]

In April 2020, then-Home Minister Hamzah Zainuddin stated, “UNHCR card holders from ethnic Rohingya have no status, right and basis to present any demands to the government.”[33] In September 2022, then-National Security Council director-general Rodzi Md Saad, who remains in government, proposed shutting down UNHCR’s presence in Malaysia entirely to manage refugees “without foreign interference.”[34]

Malaysian authorities have summarily deported asylum seekers to Myanmar, in violation of the international principle of nonrefoulement, which prohibits states from returning anyone to a country where they may face the threat of persecution, torture, or other serious harm. In February 2021, immigration authorities violated a temporary stay of deportation granted by the High Court for 1,200 Myanmar nationals, transferring 1,086 of them to the Myanmar navy’s custody hours after the order.[35] The deportations followed the Myanmar military’s February 2021 coup, which resulted in an ongoing nationwide campaign of war crimes and crimes against humanity.[36]

A group of UN experts stated they were “appalled” by the decision, and that Malaysia’s “defiance of the court order breached the principle of non-refoulement … which absolutely prohibits the collective deportation of migrants without an objective risk assessment being conducted in each individual case.”[37] In January 2023, a month after the temporary stay was lifted, authorities deported the remaining 114 people, including children.[38]

The Immigration Department deported over 2,000 Myanmar nationals in 2022, including military defectors, without assessing their asylum claims or other protection needs.[39]

Malaysian authorities have pushed back to sea or refused to assist boats of Rohingya refugees seeking asylum. Growing numbers of Rohingya, particularly women and girls, are undertaking high-risk sea voyages to escape increasing restrictions in the refugee camps in Bangladesh and unending oppression and violence in Myanmar.[40] These dangerous voyages entail weeks or months on unseaworthy boats while subject to abuse by unscrupulous smugglers and traffickers.

In 2020, Malaysian authorities blocked several boats of Rohingya that had left from Bangladesh, stranding them at sea.[41] One boat of about 500 migrants that was turned away from Malaysia spent another month-and-a-half at sea, running out of food, water, and fuel before being rescued by the Bangladesh coast guard. As many as 100 were estimated to have died.[42] Malaysian authorities reportedly refused to assist Rohingya boats in distress in late 2022, one of the deadliest years for Rohingya boat journeys, according to UNHCR.[43]

Facing myriad restrictions on integrating locally, many refugees seek to resettle in third countries, a highly limited avenue for durable protection. According to the International Organization for Migration (IOM), which helps facilitate resettlement from Malaysia, only 4,367 refugees were resettled in 2022.[44] “Hopefully I will be out before 2025,” said Daeb, a 25-year-old Palestinian-Syrian refugee who fled to Malaysia in 2014. “It’s been already nine years, nothing. No news. Nothing, not even a single interview yet. The only interview we did is when we went there [to UNHCR] to register.”[45]

In July 2022, the government approved a registration program, Tracking Refugees Information System (TRIS), requiring all refugees and asylum seekers to register for biometric ID cards, MyRC.[46] The home minister announced the cards would be recognized as refugees’ sole IDs rather than the UNHCR cards, shortly after accusing UNHCR of issuing cards arbitrarily.[47]

The MyRC website states: “These huge numbers of refugees require proper management to monitor and track their activities to ensure the safety of the country.” It goes on to say that registration and control of refugees is critical to the safety of the country given their potential to cause social problems.[48] In May 2023, the Home Ministry announced it had taken over the registration process from a private company, which had registered 30,000 refugees.[49]

Raids and Arrests

The government that took over in March 2020 used the Covid-19 pandemic as a pretext for carrying out widespread arrests of migrants. In May of that year, the government established the National Task Force (NTF), a coordinating body charged with tightening border security during the pandemic. Until its dissolution in December 2022, the NTF oversaw the arrest of more than 23,000 “illegal immigrants,” according to government officials.[50]

Raids have continued apace. In October 2023, the Home Affairs Ministry reported that from January 1 to September 21, 2023, the Immigration Department carried out over 6,400 enforcement operations, arresting about 18,000 undocumented migrants.[51] Over the first 18 days of January 2024, the Immigration Department conducted 870 enforcement operations and arrested over 4,000 undocumented migrants.[52] Several new immigration detention centers have been established in recent years.[53]

Immigration authorities and police arrest refugees and migrants during raids on residences and workplaces, at checkpoints and border crossings, on the street and in markets, and during unrelated police inquiries. Some are detained after having lived and worked in Malaysia for decades. Others are arrested while attempting to enter the country and sent to immigration detention immediately.

Roy, a migrant worker from Indonesia, had worked on oil palm plantations in the eastern state of Sabah since arriving in Malaysia in 2013. He and nine other migrant workers were arrested during a raid in September 2020:

First, we were sent to the house of the village chief. Two cars arrived and we were arrested. It was an ambush. We were taken to the police station where we were questioned. We were told we’d stay there until Monday to get tested for Covid. We were in lockup for 14 days. Then we were sent to the Tawau Immigration Detention Center. We were supposed to be in the quarantine block only 14 days, but because the other blocks were full, we were left there.[54]

Roy spent two years in immigration detention before being deported.

In June 2021, the Immigration Department imposed a strict lockdown to locate and arrest undocumented migrants to “help” them get vaccinated.[55] More than 500 migrant workers were detained that month alone. Immigration officials set up temporary detention centers to house the growing numbers.[56]

Immigration authorities continue to carry out raids and arrests to the present. Officers launched numerous large raids throughout 2023, detaining thousands of undocumented migrants.[57] On August 4, for example, authorities arrested 425 migrants and refugees, including children as young as 8, in a raid on apartment buildings in Cheras, Kuala Lumpur.[58] On December 21, more than 1,000 police officers, including personnel from the paramilitary General Operations Force, arrested over 1,100 undocumented migrants from Bangladesh and elsewhere in the Jalan Silang area of Kuala Lumpur, with a chilling effect on the community.[59]

Often whole families are arrested together, including children. Nurhayati, a migrant worker from Indonesia, was detained with her husband, three brothers, and two sisters-in-law in November 2021.

Several of the migrants and refugees interviewed by Human Rights Watch were detained multiple times, though all interviewees’ most recent arrests took place between 2019 and 2023. Mulyadi, 27, a migrant worker from Indonesia, has been arrested four times, in 2012, 2015, 2018, and most recently, May 2021, when he was picked up at a roadblock while returning home from the oil palm plantation where he worked.[60]

At least six refugees interviewed by Human Rights Watch were arrested while in possession of valid UNHCR cards, which many said was common among fellow detainees. Daeb was arrested on the street in Kuala Lumpur during a raid in April 2021, despite showing the officers the UNHCR card he had been registered for since 2015. “I had the card, but they still didn’t care,” he said.[61] At least 39 cardholders were reportedly detained during a single raid on a market in June 2021.[62]

Two interviewees said they were born in Malaysia but possess no identity documents. Herman, 27, a farmer, was detained at a roadblock in September 2021. He said that despite being born in Malaysia, he was sentenced to seven months in prison for his lack of documentation, before spending eight months in the Tawau IDC.[63]

A Ministry of Health policy directs public healthcare workers to report undocumented migrants to the police.[64] Significant numbers of undocumented asylum seekers and migrants have reportedly been sent to immigration detention centers directly from hospitals as a result, including mothers and newborns transferred less than 24 hours after giving birth.[65] The directive has likewise contributed to xenophobia among public healthcare workers and caused migrants to fear seeking health care.[66]

During enforcement raids, authorities have failed to screen not only for refugees but also for victims of trafficking and forced labor, with anti-trafficking enforcement efforts often conflating human trafficking with immigration violations. During police trafficking and immigration operations carried out between April 2022 and March 2023, the authorities failed to certify anyone as a victim of trafficking, which would have entitled them to protection.[67]

Rohingya refugees who reach Malaysia’s shores following arduous journeys from Bangladesh and Myanmar can end up detained shortly after. Minah, 18, was arrested in July 2021. Her husband had paid smugglers US$6,000 to bring her from Buthidaung in Myanmar’s Rakhine State:

My journey from my village started with nine others. It was a difficult trip via boat and land. Most of the time, I had to sleep in the forest. We were not given food during the two to three months it took to get to Malaysia. The traffickers often verbally and physically abused us. Out of nine of us, only one woman was not physically abused because her husband had made the full payment for her travels. One woman was raped. She gave birth in the detention center. It gets painful whenever I think about it.[68]

They arrived at the traffickers’ house in the state of Kelantan, where eight other migrants, including four children ages 5, 10, and 13, were already staying. The first night, 10 police officers arrived to arrest the 17 migrants. Minah said she was held at the police station for 18 days. She was ultimately transferred to the Tanah Merah IDC until December 2022, when she was released with assistance from UNHCR.[69]

Laila, 24, was arrested with her smugglers and eight other migrants in June 2021 in Kelantan, three days after arriving in Malaysia from Buthidaung. She spent one year in the Tanah Merah IDC before being moved to the temporary Millennium immigration depot, where she remains detained to the present time.[70]

II. Abuses in Immigration Detention

Malaysian authorities are detaining migrants and refugees in violent, squalid detention facilities that fall far short of international standards. Immigration detainees describe spending months or years in overcrowded, unhygienic conditions, routinely subject to degrading treatment and physical and psychological abuse, out of the sight of domestic and international monitors. Hundreds of deaths have been reported in recent years.[71] One interviewee witnessed two deaths in custody from torture; other interviewees had witnessed 15 fellow detainees die due to illness or inadequate medical care.

The Malaysian government does not formally publish disaggregated information on immigration detention centers and detainees. In 2022-2023, the number of people being held in immigration detention on any given day ranged from 10,000 to 18,000, according to parliamentary records and statements by officials. The Home Ministry reported that in September 2023, a total of 11,694 detainees were being held across all immigration detention centers, or depots, including 8,021 men, 2,206 women, and 1,467 children—832 boys and 635 girls.[72] The majority are from Myanmar, the Philippines, and Indonesia.[73]

From January to November 2023, authorities deported more than 36,000 people from immigration depots.[74] There were 20 immigration detention centers across the country as of October 2023, including three temporary facilities.[75]

Arbitrary and Prolonged Detention

Migrants are often detained indefinitely in Malaysia’s immigration detention system. Access to redress is minimal to nonexistent: migrants are generally held without judicial review or bail, access to lawyers, or any way to challenge their detention. Migrants and their families are rarely provided with details of their detention, particularly for non-Malay speakers. Such prolonged detention without recourse to judicial review amounts to arbitrary detention prohibited under international law.

Ali, a 44-year-old UN-registered Rohingya refugee, had lived in Malaysia for 28 years before being arrested at a checkpoint during a Covid lockdown in February 2021. He was held at the police station for 14 days, then sentenced to another 14 days at Sungai Petani prison and a RM 3,000 fine (US$630) for breaching the movement control orders. He was told that at the end of his sentence, he would be released. Instead, an immigration truck arrived outside the prison to bring him to Belantik Immigration Detention Center, where he was held for over a year.

“The officers told me, ‘Even though you have paid the fine, there is no one that can help you,’” he said. “No NGO, no UNHCR will help you walk free from here. You need to go to immigration detention because you are a UNHCR cardholder, and UNHCR will have to go there to release you.”[76] His wife was not informed of his whereabouts, and only found out through a neighbor who worked at the depot.

Most migrants are held at a police station for two to three weeks before being transferred to immigration detention. Some interviewees were formally charged with immigration violations, while others said they were never taken to a court. Those convicted may spend weeks, months, or years in prison before being transferred to an immigration depot. Many report being detained multiple times.[77]

Hussein, a 29-year-old Rohingya refugee, left Myanmar for Malaysia in 2013. Despite registering with UNHCR in 2016, he spent a total of seven years in various prisons and immigration detention centers. Most recently, he was held in the Belantik and Kemayan immigration depots for two-and-a-half years, before being released with the help of UNHCR in January 2023. “Why was I detained for so long in the immigration detention center?” he said. “Some people are in the detention center simply because they came outside during lockdown. That’s just a minor offense. Why must they be detained for so long in there?”[78]

Hussein was the only detainee who said he was regularly brought to court, once every two weeks during his detention at Kemayan IDC. He and the other detainees were never told the purpose of the court appearances, and were threatened not to share any information about their treatment:

None of us knew the purpose. I asked others who had been there for a long time, but they didn’t know the purpose either…. Before going to court, we were warned to say that everything was okay. Like that we had enough food if they asked, even though in reality we didn’t. If someone was sick, we had to tell them that no one was sick.[79]

During one visit, Hussein said, an Indonesian migrant asked the judge for help to make a phone call to his family:

He wanted his family to send money so he could buy a ticket to return to Indonesia. He made the request in private to the judge. But when we got back to the detention center, the man was beaten by the wardens for three days, three times a day. Every time the officers had a change of shift, he was beaten.[80]

NGO staff members and former detainees said that detained refugees and asylum seekers were generally incarcerated for longer periods with less access to the outside world than other migrants. Migrant workers from Indonesia, for example, were often deported within months, depending on embassy verification and their personal funds, while some refugees and stateless individuals have been detained for several years.[81] Malaysia generally makes migrants cover the costs of returning home, leaving those who cannot afford to pay stuck in detention.[82] Longer-term detainees may be moved to different centers multiple times.

Abuses in detention are committed outside of any independent monitoring or oversight. Humanitarian agencies likewise have limited access to detainees, often without interpreters or clear procedures.[83] Hussein said that during his two years at Belantik IDC, NGO representatives came in only once, in July 2022, to help detainees make phone calls back home. Officers allowed them to assist only two or three detainees.[84]

Visits and communication with family members are ad hoc, dependent on arbitrary decisions by officers. Several former detainees who had close family members die while they were detained said they were unable to contact them on their deathbeds or properly mourn their loss.[85]

Some interviewees said that only people with identity documents could visit. Mulyadi’s aunt was able to visit him once a month:

Each visit was only for a few minutes. If we were lucky, we would get to meet for five minutes. The officers would line us up on one side of the gate, and we could only speak to them through the wire gate. The entire time the guards would be there. If anyone touched the gate, the guard would warn them to move backward. Usually in the few minutes I had, I would just tell my aunt what I wanted from the canteen.[86]

Amin said he used to be able to visit his wife, Laila, but that all visits had been suspended for over five months without reason. “We can’t even make phone calls,” he said. “If I ask the immigration officers when my wife will be released—they say I have to wait for UNHCR. But UNHCR doesn’t visit the depot. When I ask UNHCR, they say it’s the Immigration Department that doesn’t allow them to visit the detention centers.”[87]

Several Rohingya described facing additional restrictions on visits and calls, particularly given their lack of funds to cover bribes for phone access. “Rohingya were always treated differently,” Ali said. “The others could have visits from their family members but not us…. We can’t make any phone calls. Others could make calls but not us.”[88]

Some interviewees said they could pay to use officers’ phones to send messages or make short phone calls. “But of course, not for all detainees,” said Kartini, a 28-year-old Indonesian woman held at Tawau IDC for three months. “It is for some detainees only.”[89]

A humanitarian staff member said that officers told detainees: “You will stay here forever, your family will stay here forever, your kids will stay forever, you will die here.”[90]

Degrading Treatment, Torture

Former detainees described an oppressive atmosphere full of strict and sometimes arbitrary rules enforced by corrupt guards and the ever-present threat of punishment. Of the 23 migrants and refugees interviewed by Human Rights Watch, 15 reported being beaten and all witnessed beatings while in immigration detention. Every interviewee said they faced some form of punishment during their detention.

Punishments included being hit, kicked, and beaten with rubber pipes or batons; having to hold stress positions or hang off the wall “like a gecko”; being sent to an isolation block; having meals withheld; and doing ketuk ketampi (squats) and pushups. Officers frequently threatened detainees with deportation or indefinite detention. Migrant workers reported being extorted by officers and punished if they could not pay.

Rostam, a 42-year-old migrant worker from Indonesia, lived in Sabah for 20 years. He had a work permit for 10 years, the maximum allowed, after which he received an exit stamp in his passport. After his arrest in August 2020, he spent two years in prison, then six months in the Tawau IDC. He described his time at the Tawau IDC:

There were strict rules in there. We were not allowed to make any noise. We had to just be silent. If we wanted to talk to one another, we had to whisper. We were also not allowed to smoke. If we were caught breaking any rules, we would be punished. Punishments would be like standing for half an hour to an hour or being sent to isolation block. Some were beaten on the soles of their feet with rubber pipes.[91]

Officers meted out punishments for noise, smoking, asking questions or raising concerns about the conditions, talking to the adjacent block, fighting, or for having cellphones or other contraband. Detainees had to call the officers cikgu, or teacher.

Many former detainees described officers punishing entire blocks of 100 to 200 people collectively for one individual’s “misconduct.” Mulyadi said the officers at times withheld everyone’s meal when someone was noisy or “uncooperative.”[92] When over 520 Rohingya fled the Sungai Bakap temporary detention center in April 2022, officers at the KLIA IDC beat the Rohingya refugees being held there.[93]

Hussein, who was detained in several depots at various times, said his detention at Kemayan IDC was especially challenging, where he said he was targeted for being Rohingya:

My four months in Kemayan felt like 40 years because the situation was so bad. When we were brought there and the officer realized we were Rohingya, we were kicked, beaten, and slapped. Beatings happened when detainees made any mistakes. We were inside only, we couldn’t go anywhere. Couldn’t speak either. Officers in Kemayan didn’t want to hear any noise, so we couldn’t chat with friends. In one cell we had 80 people. Even if everyone whispered, it would be noisy still.[94]

Hussein said that long-time detainees or those regarded as troublemakers were sent to Kemayan IDC. He was transferred with a UNHCR-registered refugee from Somalia who had been raising concerns about the lack of food, soap, and water in Belantik IDC.

Detainees are required to present themselves for several “muster calls,” or roll calls, a day.

Hussein described the muster calls at both depots where he was detained:

In Belantik, there were sometimes 10 or 12 calls a day, but only for 30 minutes. In Kemayan, they were only three times a day—at 9 a.m., 5 p.m., and 11 p.m.—but they felt like three years because they lasted so long. We couldn’t lift our heads or go to the toilet. Sometimes one muster call would take an hour. That meant we had to look down and not lift our heads for the whole hour. If the officer saw anyone lifting their head, they would withhold all our food for the day. Once the muster call lasted three hours.[95]

Hussein said that twice his block in Kemayan IDC was punished when new detainees who did not speak Bahasa Malaysia and were unfamiliar with the rules went to the bathroom during the muster call. The officers made everyone perform 700 squats.[96]

Ali was also held at Belantik IDC, where officers beat and tortured him:

We would get beaten when we asked for more food, took an extra mug of water to shower, or asked for a blanket for the cold.... Once, I begged the officer to stop beating a boy who had asked for more bread. I was brought out of the cell to an area that other detainees couldn’t see. Then I was not only beaten, I was submerged in a big water tank for the whole night. I tried begging the officer to stop because I had surgery before being detained and my scar was aching. Every time I stood up from the tank, I was beaten. I was beaten by eight officers at the same time. It was like they were playing football, they just kept kicking me. That went on from around 8 p.m. to 3 a.m.[97]

Ali said the officers would sometimes tie detainees up with rope before beating them, or two officers would hold them down while a third hit them in the chest.

“The officers would mock and scold us too,” Ali said. “They would say things like, ‘This is not your father’s country. Who gave you permission to come to this country? You all are just causing more problems for us.’”[98]

In one incident, two detainees were killed due to beatings and torture after attempting to escape. Roy and his brother Suardi were detained at the Tawau IDC in September 2020. After a month with extremely limited food, during which detainees were falling seriously ill with Covid-19, they decided to flee with 12 others. “We were wrong for running away but conditions were so bad,” Roy said. Ten of them were caught shortly after escaping and sent to the insaf block, or solitary confinement, where they were tortured:

All 10 of us were beaten for four days straight. We were beaten with wooden planks, red bricks, batons, and their bare hands. We were handcuffed together [in pairs] throughout the whole day.... We were beaten three times a day, each time the officers changed shifts. After four days, the officers stopped because one of the Filipino detainees, Basri, died.

His head was swollen from being beaten with red bricks. His head and ears were bleeding and his eyes turned yellow. We asked for a doctor, but the officers said, “Who cares? Why should I help you? You can just die here.” No doctor came during those four days. Before we were captured, we were all healthy.[99]

A week after Basri died, Suardi began experiencing chest pain. Roy said that his brother’s chest was covered in bruises from being stepped on by the officers and beaten with bricks and batons. When Roy requested medical attention for his brother, he was moved to a different block. He kept asking about Suardi’s condition without any response and was moved twice more. After three months, officers told him his brother had died. Suardi’s body was sent back to Indonesia. According to the repatriation letter, he died at Tawau General Hospital.[100]

Abuses against Women

Women detainees report facing degrading treatment and gender-based abuses. The UN Committee on the Elimination of Discrimination against Women has called on the Malaysian government to establish alternatives to detention for asylum-seeking and refugee women and girls. It also stated:

The Committee is further concerned that the State party lacks a legal and administrative framework to protect asylum seekers and refugees and regularize their status, which limits the access of asylum-seeking and refugee women and girls to the formal labour market, public education, health and social services and legal assistance and exposes them to a range of human rights violations, including arbitrary arrest and detention, exploitation and sexual and gender-based violence in detention centres and elsewhere.[101]

Nurhayati left Indonesia for Malaysia in 2003, where she secured a job as a domestic worker in Kota Kinabalu, Sabah. She received an exit stamp in her passport after reaching the maximum renewals of her work permit. She was held at the Tawau IDC for five months after being arrested with her family during a raid:

My experience in the detention center was horrible. We had many restrictions there. The female “teachers” [guards] always warned us to listen to them and follow the rules. If we were caught breaking the rules, we would be punished, like being beaten or slapped. They would punish us even for small mistakes.

My block was next to the male block. Some of the guys would pass letters to their wives in my block. The teachers would always tell us that we must behave well and not talk or write letters to the men even though they are our husbands. The teachers would hit us with empty water bottles. I always just kept to myself and stayed silent because I was afraid after seeing others being punished. I saw other people get slapped until their cheeks were red. The Filipinos there had been detained for a long time, more than two or three years. So they would constantly ask questions and then get beaten by the teachers.[102]

Minah, who was held in the Tanah Merah IDC for four months, said she was strip-searched when she arrived: “We had to remove all our clothes and were made to squat and stand 10 times.”[103]

Women’s blocks were also subject to abusive “muster calls,” under constant threat of further punishment for making noise. Minah said:

Every day we would be woken up at 5 a.m. for a muster call, which they conducted five times a day. During the muster call, we had to just sit quietly with our heads down and hands behind our backs. The muster calls could last for hours. The night muster call started at 9 p.m. and at times would only end at 2 a.m. We were also not allowed to use the bathroom during the muster call. If anyone spoke or made any noise, that person would be beaten. Even though it was tough, I just had to tolerate it so I wouldn’t get beaten by the officers.[104]

Minah said that after a woman in her block complained about another’s hygiene, the officers punished the entire block by cutting off every woman’s hair.[105]

Kartini said that muster calls took place four times a day at the Tawau IDC:

If we made any noise, we would be punished, like hanging from the wall, pushups, squats, walking like ducks, or standing under the hot sun for hours. Once I was made to do 150 squats because we were noisy and as the leader of the block, I got punished. I didn’t want to do it, but the officer threatened to slap me if I didn’t. My knees were shaking, and I couldn’t walk by the time I finished.[106]

Kartini said that another time, she and other detainees were made to hang from the wall for hours for making noise at night.[107]

Most women interviewed said that no sanitary products were provided. Some were able to request pads from visiting family members, while those with no visitors had to rely on other detainees or use torn clothing. A few women said that immigration officers would give them one pad a day but required they strip to prove they needed it, and then show their used pad in order to get a new one.[108] The majority of medical assistants and medically trained officers were men.[109]

Outside detention centers, refugee and migrant women in Malaysia are particularly vulnerable to sexual harassment, exploitation, and violence, and are often reluctant to seek medical or police assistance due to the threat of being detained. Refugee rape victims have reportedly been arrested for their lack of documentation when attempting to file a report with the police.[110]

Ill-Treatment of Asylum Seekers, Refoulement

Refugees and asylum seekers said immigration officials used threats, degrading treatment, and violence to quash their requests to meet with the UN refugee agency, UNHCR, or coerce them to return to their countries of origin.

Hussein was held at Belantik IDC for two years but said that other refugees had been there for five or six years, waiting for UNHCR to assist with their release. Hussein and other refugees said that officers hit them for asking for access to UNHCR, better treatment in detention, or their release. “The officers got angry when I asked to meet UNHCR,” Hussein said. “When I asked, they would hit us on our hands and feet. They would threaten us: ‘Don’t ask questions. Just sit here. You can’t go back to your country.’” Refugees also reported officers cutting up and throwing away UNHCR cards.[111]

“We were constantly asking when UNHCR will come,” said Aung Aye, a 33-year-old ethnic Chin refugee from Myanmar who has been registered with UNHCR since 2010. He fled Myanmar after being forced to serve as a porter in the army.[112] “We asked the officers for help getting them [UNHCR] to visit us. But each time we asked, the officers would say, ‘There is no UN. The UN is dead. You can throw your UN card away.’”[113]

Aung Aye said officers at the Ajil IDC would beat refugees to pressure them to return home. He was beaten several times for refusing to return. Officers severely beat him and about 45 other refugees when they attempted a hunger strike to protest the lack of access to UNHCR and threats of deportation:

On the first day of our strike, all 45 of us were beaten by the officers. We were brought outside and beaten on our hands and feet five times with two rubber pipes that were taped together. The pipes were filled with metal wires. I fainted after the third hit. I didn’t feel the fourth and fifth. I only knew it was five times because of my friends. After hitting us, they took our shirts and left us in the square under the hot sun until nighttime.[114]

After the strike, about 100 Rohingya refugees were moved to a different depot. “They kept telling us to go back to Myanmar,” Aung Aye said. “They told us that even if we die here, the UN will not come. They kept threatening to hit us again if we didn’t go back to Myanmar. I was afraid of being beaten again, so I agreed to go back.”[115] Aung Aye returned to Myanmar for nine months before hiring an agent to bring him back to Malaysia. He said that many of the other refugees are still detained, increasingly desperate about when they will be released.

Ba Kaung, a 50-year-old UNHCR-registered Chin refugee from Myanmar, was detained in the KLIA IDC for four months in 2019. Immigration officers and officials from the Myanmar embassy would pressure him to share his address in Myanmar and identity card number so they could deport him. “The immigration officers would shout at me, ‘Why don’t you give me your Myanmar address? Even if you die here, UNHCR will not come visit you,’” Ba Kaung said.[116]

The officers caned Ba Kaung on the soles of his feet three times when he refused, so he shared the address and identity number of a friend. He was sent back to Myanmar but fled the country again soon after when soldiers began looking for him. “If the officers didn’t threaten and cane me, I wouldn’t have gone back to Myanmar,” he said. “It is too dangerous for me there.”[117]

Some refugees like Hussein said they were eventually released with support from UNHCR; for many of them, only after years spent in detention.

In April 2022, more than 520 Rohingya refugees escaped from the Sungai Bakap temporary immigration detention center in Penang, where they had been held for over two years.[118] Six of them, including two children, were killed by vehicles while fleeing across a highway. The majority were rearrested shortly after. In February 2024, over 130 people escaped from the Bidor temporary immigration depot in Perak, including 115 Rohingya refugees and 16 others from Myanmar.[119] At least two died in a road accident; most were eventually rearrested.[120]

Barriers to Health

Poor living conditions, overcrowding, and inadequate food and water has led to chronic health problems in immigration detention, compounded by widespread barriers to accessing medical services and adequate treatment.

Malaysian immigration authorities regularly detain individuals with physical and mental health conditions, sometimes for prolonged periods, in facilities ill-equipped to provide appropriate care, without sufficient consideration of the impact of detention on their health.

Most detainees have no direct access to healthcare workers, leaving them entirely dependent on officers’ unqualified decision-making. Interviewees reported that unscheduled access to doctors is generally restricted to emergencies.[121]

“There were all kinds of diseases there,” Roy said. “If anyone was sick, we had to report to the officer and then the officer would tell the doctor. But when we would tell the officers that someone was ill, we were ignored, unless that person was in critical condition.”[122]

Rostam said that migrants at the Tawau IDC were not allowed to see a doctor outside of scheduled visits. “If you fell sick outside of treatment time, you wouldn’t be cared for,” he said. “The officer would just ignore your request. Once I reported to the officers that I had been having diarrhea for a month, but he didn’t do anything. I wasn’t given any medicine. When I saw the doctor during his routine visit, he just told me it’s common to have diarrhea there.”[123]

One refugee said he had intense tooth pain and asked for a dentist or someone to extract the tooth, but was only given paracetamol.[124] Humanitarian staff said that paracetamol is the only medical supply on hand in most detention centers and offered as the sole treatment for serious injuries like dislocations.[125]

Some interviewees reported that the officers’ responses to healthcare requests were often arbitrary or dependent on their relationship with the detainee. Several said that officers asked for money to follow up on a request for treatment or medicine. One refugee said an officer confiscated his medicine that was found during roll call.[126]

The Home Ministry reported 247 deaths occurring in immigration detention from the start of 2021 to July 12, 2022, including four children, due to Covid-19, tuberculosis, pneumonia, heart disease, dengue, diabetes, and other causes.[127] The ministry reported that altogether 150 people died in 2022.[128]

Six interviewees reported fellow detainees dying due to illness or malnutrition. Nurhayati was detained with three of her brothers. At one point, she heard from the eldest that another brother, Natan, had developed a fever. He was being held in the quarantine block because of overcrowding. Natan died on March 3, 2022, a month before Nurhayati was released. She did not know the exact cause. “Natan was an OKU [orang kurang upaya, or person with a disability],” she said. “He fell sick when he was detained. He was fine before that.”[129]

Nurhayati said that three women in her block became sick and died during her four months in the detention center as well.[130] During his most recent detention, Hussein said he witnessed six people die from illness, one in the Belantik IDC and five during his four months in the Kemayan IDC.[131]

Interviewees reported falling sick with Covid-19, tuberculosis, and scabies, by far the most prevalent health condition in the detention centers. Fourteen interviewees contracted scabies while detained and described the skin infestation as having spread unchecked through the blocks. One migrant had it three times while in detention. Several said they were still suffering from the rash after being deported or released.[132]

“All of us were infected with scabies,” Ali said. “I had it badly. We only got to see the doctor once a month. Any other time, even though we would be scratching until we bled, the officers wouldn’t care. After I was released, I had to go to the clinic four times to get medication.”[133]

Any IDC medical assistants are under the supervision of the Immigration Department, limiting their impartiality and forcing detainees who need medical care for injuries from abuse to lie about the cause.[134]

No medical assistants are deployed to the three temporary immigration detention centers, which lack even basic first aid supplies. Amin said that when he tried to bring scabies medication to his wife, Laila, who was being held at the temporary Millennium immigration depot, guards refused to give it to her.[135]

The lockdown raids launched in May 2020 were quickly followed by a surge in Covid-19 cases in immigration detention centers, including acute outbreaks in at least three depots.[136] As the crackdown continued, undocumented migrants grew hesitant to get the vaccine out of fear of being detained, extending the cycle of vulnerability, detention, and illness.[137] Detainees said they were not provided with masks in the cells unless meeting with an immigration officer.

Indefinite detention can have a devastating effect on migrants’ mental health. For many detainees, not knowing how long they will be detained is traumatic and causes distress and a sense of powerlessness. Immigration can exacerbate preexisting traumas, such as those experienced by refugees fleeing their home countries, and contribute to lasting depression, anxiety, and post-traumatic stress.[138]

Migrants in Malaysia spend their detention locked in their blocks, with little to no freedom or access to the outside. Interviewees expressed feelings of hopelessness, stress, and isolation due to their severely restricted movement and the lack of anything to do all day. “We do nothing from morning to night,” Mulyadi said. “Just look outside or look at the sky. We aren’t allowed to go out. We are locked inside all the time.”[139]

Detainees are not allowed outside, and exercise in the blocks is limited by overcrowding and rules about noise. Ali said:

We can’t do anything from morning to night. We can read the Quran, pray, that’s all. There is nothing else. There is no work. Once a month, they take us outside to cut our hair and nails. Otherwise, we can’t go outside. We want to feel the sun warm us and let the light come in. But we can’t see the sun.[140]

“At least in prison I was allowed to leave my block to work,” Rostam said.[141]

Research has shown that even brief periods of immigration detention caused significant deterioration of mental health in some refugees. The harm of immigration detention does not end when detainees are released, but can extend well into the years that follow and can change the trajectory of their lives.[142]

Squalid Conditions

Interviewees described being held in overcrowded, unsanitary conditions, with poor ventilation and inadequate access to food, water, blankets, and hygiene supplies. The number of detainees per block shifts often, with a revolving door of arrests and deportations. A block designed for 200 people may have over 260 crammed in.[143] Cycles of overcrowding can last for a few months until new deportations are carried out. Humanitarian staff and former detainees said that conditions in immigration detention facilities were worse than in Malaysia’s prisons.

Many former detainees said that everyone had to sleep on their sides in rows in order to fit. “There were 237 of us,” Mulyadi said. “It was so crowded that it was difficult to sleep at night. I had to sleep on my side. If I woke up to use the toilet, I couldn’t find my space again when I got back from the bathroom. Because we were always in such close contact, we all got scabies, including me.”[144]

“We were squeezed in together like sardines,” said Daeb, who was held in Bukit Nenas. “There were around 160 or 170 of us in a room. There were lots of bugs, insects. We couldn’t sleep properly. They didn’t give us blankets, nothing.”[145]

The Malaysian government considers it the detainees’ responsibility, rather than the government’s, to provide for basic needs in detention, including toiletries, clothing, and bedding.

Most interviewees said that no mats, blankets, or pillows were provided. Some were able to ask family members to bring them bedding; others had to make do sleeping on the floor, using clothes or plastic water bottles as pillows.[146]

Refugees with no family visitors or money to pay the guards are often left with only the clothes they enter wearing. “No towels, no clothes, nothing,” Daeb said. “I only had the one set of clothes I had on me, so I had to wash a piece of my clothing one by one, not all at once. Like first was my t-shirt, and so on, so I had something to wear.”[147] Another refugee who only had one set of clothing said he used plastic bags as fans to help them dry faster after washing.[148]

“I had two sets of clothes, but these two sets were given to me by the Prison Department,” said Rostam, who spent two years in prison before immigration detention. “If I wasn’t in prison, I wouldn’t have any extra clothes as the Immigration Department didn’t provide us with any. The prison at least gave us basic amenities.”[149] Rostam brought soap and toothpaste with him from prison after being informed that it would not be available in immigration detention.

Some migrants said their embassies provided them with soap, toothbrushes, and toothpaste, or they were able to buy supplies from officers. Others said they were given a small piece of soap every other week, which would only last a few days.[150]

Officers operate an extensive bribery system throughout the depots, often targeting detainees with family and resources outside.[151]

“Many officers there are corrupt,” Mulyadi said. “You just need to pay them, and they’d bring in outside food or clothes for us. Our family member will transfer RM150 to a specific officer. Then the officer would deduct RM40 for himself and pass us RM110 to buy things from the canteen.”[152]

Shortages of water for both drinking and bathing are common. Nurhayati said:

Drinking water was on a first come, first serve basis. I could only get drinking water if I was quick. There were more than 200 people including children in the cell, and the water they provided wasn’t enough. There wasn’t enough water for bathing either. There was no water from the pipes. We had a small tank to store water in the bathroom, but it would run out. Sometimes we couldn’t bathe for three days because we had no water.[153]

Roy said they were given a gallon of sometimes muddy water to share among five of them for bathing and drinking, and were not given more if needed.[154] Some reported drinking the unpotable bathing water from the tank because they had no other options.[155]

Many said that the toilets were often filled with waste and filth due to the lack of water. Aung Aye said there were only two working toilets for his block of about 100 people.[156] Toilets and bathing areas are frequently open to the block.

Food is often inadequate. Former detainees said they were not given enough at meals, such as receiving only a piece of bread for breakfast, and that the food was at times uncooked, rotten, or wormy. Migrants who requested additional food were punished. Roy named insufficient food as one of the reasons he and others attempted to flee.[157] Rostam said the food in prison was better than at the immigration depot. Some migrants said they could pay officers bribes for additional snacks from the canteen or outside.[158]

Abuses against Children

The Malaysian government arbitrarily and indefinitely detains children in immigration detention centers, in violation of international law, which recognizes that immigration detention of children, alone or with their families, is never in their best interests and is a violation of children’s rights.

As of September 2023, 1,467 children were held across 20 immigration detention centers, including 635 girls and 832 boys.[159] About two-thirds of them are unaccompanied children, while the others are detained with a parent or guardian.[160] Ad hoc figures from the past 10 years indicate an average of about 1,300 children are detained at any one time. However, government tallies are likely underreported given that detainees above age 12 are often considered adults and age is determined based on appearance.[161]

Young children are often detained with women, while teenage boys are generally detained with men. Children who reach a certain age may be separated from their family members and transferred to blocks based on their gender. In one case, an 8-year-old boy was separated from his mother and moved to the male block. Women have given birth at the depots, without the support of medical professionals, and remained detained for months with their newborns. Upon arrest, children are sometimes separated from their parents and deported alone.[162]

Children frequently face the same abuses as adult detainees, including beatings, inadequate food, and denial of medical care. Seven children died in immigration detention in 2022, according to the Home Ministry.[163] The Malaysian government’s use of immigration detention threatens children’s health and well-being and imperils their development. Prolonged detention in filthy, overcrowded cells without adequate nutrition, education, or exercise space deprives children of the capacity to mentally and physically grow and thrive.

Fatimah, a migrant worker from Indonesia, had lived in Malaysia for 35 years when she was arrested for the second time in January 2020 during an immigration raid. She and her two daughters, ages 13 and 16, were detained for three years at the Menggatal IDC. Her daughters had been born in Malaysia but had no identity documents due to her immigration status. She described the challenges that she and other mothers faced in keeping their children fed, healthy, and clean while in detention. She and her daughters all suffered from scabies.[164]

A number of other families were being held indefinitely at the Menggatal IDC for years, Fatimah said, including a Filipino woman and her children who had been detained for more than five years. “Pity the children that are detained,” she said. “There are some that are paralyzed. Many have died as well while in detention. They may have died due to hunger or being sick. I am not always sure of the reasons.”[165]

Fatimah’s husband and father of their two children died in 2020 while they were detained.

Former detainees describe the additional challenges of gathering supplies for babies and toddlers when little to none is provided, including diapers, baby clothes, formula milk, medicine, blankets, and mattresses. Some mothers were punished for their children crying.[166]

Ali said that the children in his block lost weight due to malnutrition from being underfed. “Boys, girls, they are starving, they all become thin. But if they ask for more food, they get beaten by the authorities,” he said. “One boy, about 9-years-old, was very hungry. He asked for a little more bread and the officers hit him hard. ‘You, this isn’t your father’s country,’ they yelled. ‘Why do you think you can eat more?’”[167] Ali asked the officers to stop beating the boy, for which he was held in the water tank and tortured, as described above.

Hussein said he witnessed officers beat a teenage refugee 300 times with rattan at the Belantik IDC because the boy asked when UNHCR would visit. “He was beaten until his feet were red and he couldn’t walk,” Hussein said. “He had to use his hands to move. Even going to the toilet was difficult for him.”[168]

III. Alternatives to Detention

A growing number of governments around the world have recognized the harmful and unnecessary nature of immigration detention. They are looking toward alternatives to detention that offer a more humane approach to managing migrants and asylum seekers with unsettled legal status. Solutions that place the basic needs and dignity of migrants at the forefront of policy can offer a rights-respecting alternative to detention while simultaneously furthering governments’ legitimate immigration enforcement aims.

Community-based alternatives—housing in settings that allow asylum seekers, refugees, and other migrants to attend regular schools, work in the community, and otherwise interact regularly with others—are preferable in virtually every respect to immigration detention. Research from multiple countries has found such alternatives to be healthier and more cost-effective, with comparable rates of appearance at asylum or immigration hearings.[169]

The UN Working Group on Arbitrary Detention has stated: “Alternatives to detention can take various forms: reporting at regular intervals to the authorities; release on bail; or stay in open centres or at a designated place. Such measures are already successfully applied in a number of countries.”[170] The International Detention Coalition defines alternatives to detention as “any law, policy or practice by which persons are able to reside in the community, without being detained for migration-related reasons.”[171]

Alternatives to detention should not be so invasive, restrictive, or onerous as to be in effect alternative forms of detention, nor should they become alternatives to release.[172]

For more than a decade, Malaysian officials have engaged in dialogue about alternatives to detention, particularly for children, with little action.[173] In February 2022, the government launched a small-scale pilot program targeting unaccompanied and separated children, to be led by the Ministry of Women, Family and Community Development and the Ministry of Home Affairs.[174] The project was referenced in Malaysia’s pledges and commitments for its 2022-2024 candidacy at the Human Rights Council.[175] Yet in its final year of council membership, little to no progress has been made.[176]

Home Minister Saifuddin Nasution Ismail made statements in February and April 2023 expressing his support for releasing children from immigration detention and indicating that plans were underway to do so.[177] In September, however, he introduced the Baitul Mahabbah program, which fails to provide detained migrant children with non-custodial, community-based alternatives. Instead, children are being moved to new centers where they will remain under guard of immigration officials and the People’s Volunteer Corps (Jabatan Sukarelawan Malaysia or RELA) until their deportation. Two centers were set up in 2023, with plans to expand in 2024.[178] “When this shelter is guarded by RELA, it is still like a semi-detention center. As I have often said before, ‘a golden cage is still a cage,’” said Mahi Ramakrishnan, activist and founder of the NGO Beyond Borders Malaysia. “This does not look like [what was promised] at all.”[179]

In 2019, members of the Association of Southeast Asian Nations (ASEAN) adopted the Declaration on the Rights of Children in the Context of Migration.[180] A corresponding 10-year regional action plan launched in 2021 calls on members to “enhance the availability and implementation of clean and safe non-custodial, community-based alternatives to child immigration detention, that promote the best interests of the child, including through ensuring that children are kept together with their families, where possible.”[181] Malaysia’s weak implementation has been easily outpaced by its neighbors.

Indonesia and Thailand began discussions on alternatives to detention during the same period as Malaysia, yet both have taken steps toward enacting new approaches to the treatment of irregular migrants. In 2019, the Thai government signed the Memorandum of Understanding on the Determination of Measures and Approaches Alternatives to Detention of Children in Immigration Detention Centers, acknowledging that children should only be detained as a measure of last resort and that any detention period should be as brief as possible.[182] Hundreds of children have been released, with case management support provided by nongovernmental organizations, although significant gaps remain.[183]

In 2018, Indonesia issued a policy geared toward ending the use of immigration detention for refugees.[184] The IOM, which led the effort alongside UNHCR, reported that by the end of 2018, it had transferred all refugees and asylum seekers under the program to 84 community housing facilities across the country.[185]

Rights-respecting case management programs have been employed successfully in a number of countries.[186] Such alternative measures focus on facilitating the resolution of immigration and asylum claims within community settings, thereby preserving migrants’ right to liberty.[187] Alternative programs have proven to be effective in achieving immigration enforcement objectives as well as less costly than detention.[188]

Various alternatives to detention are available to the Malaysian government that would not only counteract abusive and unnecessary immigration detention, but also make the immigration system more cost-effective, humane, and efficient.

IV. International Legal Standards

While international human rights law recognizes a state’s authority to control its borders, an individual entering a country irregularly retains their rights to life, security, equality before the law, due process, and other fundamental protections.

The right to be free from arbitrary detention appears in multiple international human rights instruments. Article 9 of the Universal Declaration of Human Rights, which is considered reflective of international law, states that “No one shall be subjected to arbitrary arrest, detention or exile.”[189] Article 9 of the International Covenant on Civil and Political Rights (ICCPR) states: “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”[190] While Malaysia is not a party to the ICCPR, many of its provisions are recognized as customary international law, including the prohibition of arbitrary detention, torture, and ill-treatment.

Arbitrary arrest or detention does not only apply when the state’s actions are unlawful. The UN Human Rights Committee, the independent expert body that provides authoritative interpretations of the ICCPR, has stated in a General Comment on article 9 that “the notion of ‘arbitrariness’ … must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality.”[191]

To avoid being arbitrary, detention should not continue beyond the period for which a state can provide appropriate justification. Detention could be considered arbitrary if “it is not necessary in all the circumstances,” for example, to prevent flight, and that “the element of proportionality becomes relevant in this context.”[192] Malaysia’s practice of detaining refugees and migrants indiscriminately for prolonged periods, without appropriate legal justification, constitutes arbitrary detention.[193]

Irregular migration should not be a criminal offense. The UN Working Group on Arbitrary Detention has stated:

The irregular entry and stay in a country by migrants should not be treated as a criminal offence, and the criminalization of irregular migration will therefore always exceed the legitimate interests of States in protecting their territories and regulating irregular migration flows. Migrants must not be qualified or treated as criminals, or viewed only from the perspective of national or public security and/or health.[194]

In a joint general comment, the UN Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and the UN Committee on the Rights of the Child, which monitors state compliance with the Convention on the Rights of the Child, concluded that the criminalization of irregular entry or stay “exceeds the legitimate interest of States parties to control and regulate migration, and leads to arbitrary detention.”[195]

The Human Rights Committee has noted that with regard to immigration, “detention must be justified as reasonable, necessary and proportionate in the light of the circumstances and reassessed as it extends in time.”[196] The Working Group on Arbitrary Detention has stated that “immigration detention should gradually be abolished” and that “alternatives to detention must be sought whenever possible.”[197] It further stated that immigration detention may only be applied “as an exceptional measure of last resort, for the shortest period and only if justified by a legitimate purpose, such as documenting entry and recording claims or initial verification of identity if in doubt.”[198]

On access to justice, the Working Group stated that “detention in the course of migration proceedings must be ordered and approved by a judge or other judicial authority,” with automatic, regular periodic reviews of their detention and access to challenge the detention.[199]

The Global Compact for Safe, Orderly and Regular Migration is a non-legally binding, cooperative framework established in 2018 under the auspices of the UN to foster international cooperation among all relevant actors on migration. It calls on states to prevent arbitrary arrest and detention in the context of international migration and to “prioritize non-custodial alternatives to detention,” with an eye toward expanding alternative, non-custodial measures.[200] The Global Compact, which Malaysia voted for, promotes “community-based care arrangements” and urges states to make a “viable range of alternatives” available and accessible to migrant children and families.[201] Such alternatives should “ensure access to education and healthcare, and respect [the] right to family life and family unity.”[202]

The ICCPR provides that “all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”[203] The UN has adopted standards that provide authoritative guidance on the treatment of detainees, including the Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), the Basic Principles for the Treatment of Prisoners, the Body of Principles for the Protection of All Persons under Any Form of Detention, and the Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules). These international standards articulate the minimally acceptable conditions in detention, including basic standards of hygiene, provision of food, access to medical care, the separation of men from women and children from adults, access to natural light and fresh air, and recreation.[204]

Regarding medical care, the Human Rights Committee has noted that “decisions regarding the detention of migrants must also take into account the effect of the detention on their physical or mental health.”[205] Governments have an obligation to ensure medical care for prisoners at least equivalent to that available to the general population. The UN Committee on Economic, Social and Cultural Rights has stated in a General Comment that “states are under the obligation to respect the right to health by, inter alia, refraining from denying or limiting equal access for all persons, including prisoners or detainees, minorities, asylum seekers and illegal immigrants, to preventive, curative and palliative health services.”[206] The Human Rights Committee has noted in a General Comment that governments have a “heightened duty of care to take any necessary measures to protect the lives of individuals deprived of their liberty.” This is because when detaining people, the government “assume[s] responsibility to care for their life.”[207]

The ICCPR and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment prohibit torture and ill-treatment without exception. While Malaysia is not a party to either convention, the prohibition against torture is well established under customary international law as jus cogens; that is, it has the highest standing in customary law and is so fundamental as to supersede all other treaties and customary laws.

The Working Group on Arbitrary Detention has affirmed that detention of children and other vulnerable and at-risk migrants is arbitrary and in violation of international law:

Detaining children because of their parents’ migration status will always violate the principle of the best interests of the child and constitutes a violation of the rights of the child.... Detention of migrants in other situations of vulnerability or at risk, such as pregnant women, breastfeeding mothers, elderly persons, persons with disabilities, lesbian, gay, bisexual, transgender and intersex persons, or survivors of trafficking, torture and/or other serious violent crimes, must not take place.[208]

The Convention on the Rights of the Child states in article 37(b) that detention of children should be used “only as a measure of last resort and for the shortest appropriate period of time.”[209] The Committee on the Rights of the Child clarified that “the possibility of detaining children as a measure of last resort, which may apply in other contexts such as juvenile criminal justice, is not applicable in immigration proceedings as it would conflict with the principle of the best interests of the child and the right to development.” It concluded that “child and family immigration detention should be prohibited by law and its abolishment ensured in policy and practice.”[210]

Article 31 of the 1951 Refugee Convention states that governments “shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened … enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.” Furthermore, the government “shall not apply to the movements of such refugees restrictions other than those which are necessary.”[211] Asylum seekers who have not yet been recognized by UNHCR are protected by article 31 as well.[212]

UNHCR’s Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers reaffirm the basic human right to seek and enjoy asylum freely and safely, stating that “the detention of asylum-seekers should be a measure of last resort, with liberty being the default position.”[213] The Guidelines also note that detention should not be used as a punitive or disciplinary measure or as a means of discouraging refugees from applying for asylum.[214]

Refugees have additional rights based on international refugee law, including the fundamental protection against nonrefoulement—their right not to be returned to a country where their lives or freedom would be threatened. Although Malaysia is not a party to the 1951 UN Refugee Convention or its 1967 Protocol, the principle of nonrefoulement is recognized as customary international law and is binding on all countries.[215]

 

Acknowledgments

This report was written by Shayna Bauchner, researcher in the Asia Division at Human Rights Watch, based on research conducted by the author and Jerald Joseph, consultant to Human Rights Watch.

The report was edited by Bryony Lau, deputy Asia director; James Ross, legal and policy director; and Tom Porteous, deputy program director. It was reviewed by Bill Frelick, refugee and migrant rights director; Julia Bleckner, senior health researcher; Erin Kilbride, women’s rights researcher; Amanda Leavell, children’s rights researcher and advocate; Andreas Harsono, senior Indonesia researcher; and Jerald Joseph. Editorial and production assistance was provided by Jody Chen, Asia associate, and Travis Carr, digital publications officer.

We gratefully acknowledge the humanitarian workers and other NGO staff and experts in Malaysia who provided us with valuable guidance and insight.

Above all, we are deeply grateful to the migrants and refugees who spoke with us and shared their stories, without whom this report would not have been possible.