This is the third in a short series of blog posts dedicated to the situation of statelessness among Thailand’s ethnic minority people (the ‘hill tribes’). They are inspired by our current research into the impact of statelessness on women in Thailand, which aims specifically to map the link with human trafficking – a project funded by the US Department of State’s Bureau for Population, Refugees and Migration.
In 2008, Thailand adopted a ground-breaking amendment to its Nationality Act which had the potential to massively reduce the number of cases of statelessness in the country by offering a pathway to citizenship. Yet, five years on, it does not yet appear to have had this effect. There are still just over half a million stateless people in Thailand, although it is believed that a significant number of these is now eligible for nationality. This blog discusses why the provision introduced into the Thai Nationality Act in 2008 could fundamentally alter the picture of statelessness and Thailand and touches on some of the obstacles that are reportedly obstructing access to Thai nationality for many who would otherwise benefit.
In 2008, Thailand adopted a ground-breaking amendment to its Nationality Act which had the potential to massively reduce the number of cases of statelessness in the country by offering a pathway to citizenship. Yet, five years on, it does not yet appear to have had this effect. There are still just over half a million stateless people in Thailand, although it is believed that a significant number of these is now eligible for nationality. This blog discusses why the provision introduced into the Thai Nationality Act in 2008 could fundamentally alter the picture of statelessness and Thailand and touches on some of the obstacles that are reportedly obstructing access to Thai nationality for many who would otherwise benefit.
2008
Nationality Act seeks to correct historic problem
Under the original Thai Nationality Law (1913),
nationality could be acquired at birth both by descent from a Thai parent (jus sanguinis) or by birth on Thai
territory (jus soli). Any child born
in Thailand automatically acquired Thai nationality, even if the parents were
foreigners and regardless of whether they had permission to reside in Thailand
at the time of the child’s birth. Hill Tribe people whose ancestral home was
Thailand were entitled to Thai nationality under the law and those whose
ancestral links lay in e.g. Vietnam or China would only remain foreign in the
first generation – once arrived in Thailand, any children born would also be
Thai. But, in 1972, Revolutionary Party Declaration No. 337 introduced a
significant restriction on the jus soli
enjoyment of Thai nationality. Where
a child is born in Thailand to foreign parents, both parents must have
permanent residence for the child to be granted Thai nationality jus soli. This rule was introduced not
just for children born after this date, but was applied retroactively, such
that nationality was revoked from anyone who had acquired it jus soli but whose parents had not been
permanent residents at the time of their birth – even if it left them stateless.
In 1992, the Declaration was repealed, but the jus soli restriction it sets out was incorporated into the
Nationality Law proper (section 7bis)
and it remains in force today.
In the meantime, from the 1950s,
Thailand took steps to document its citizens for the first time. A national
census was executed with a view to registering everyone in the country, but
many Hill Tribe people were overlooked. They remained undocumented and
invisible to the Thai authorities. When efforts were made some decades later to
register these communities, many were recognised as citizens, but many others
were issued coloured identity cards which documented their presence in
Thailand, but did not recognise them as citizens. Other coloured cards were
also issued to various waves of newly arriving ethnic minorities who settled in
Thailand after fleeing violence or other strife, during a specific period of
problems in their home country and who had arrived undocumented, the link to
their home country severed. A coloured card meant that the person was deemed to
be non-Thai but their presence in the country was tolerated – although officially
still illegal. Under the nationality law, this status did not amount to the
permanent residence which took on a central role and, in 1972, children born to
these coloured card holders were (retroactively) barred from jus soli entitlement to Thai nationality.
Thus, many members of the Hill Tribe population who have ancestral links to
Thailand missed their initial window for registration as Thai nationals, were
subsequently cast together with other categories of tolerated “illegal” foreigners
and found that their children were later stripped of any right to Thai
nationality. At the same time, other ethnic minority people who arrived throughout
much of the early to mid-1900s, ended up in the same position. All of their
children inherited the same temporary immigration status held by the parent as
well as their statelessness.
The new provision of the 2008 Nationality Act determined
that anyone whose nationality was revoked by the 1972 Declaration or who failed
to acquire nationality while this Declaration was in force (1972-1992) can
acquire Thai nationality (section 23). To benefit, applicants must have
evidence of their birth and subsequent domicile in Thailand and demonstrate
good behaviour. Those whose parents had their nationality revoked or were
unable to acquire nationality due to the 1972 Declaration are also eligible for
Thai nationality. In short, it would now appear that anyone born in Thailand
before 1992 – or with a parent who was born in Thailand before 1992 – and still
residing there, should now have a pathway to citizenship.
Obstacles
to implementation
Since the aforementioned provision of the 2008 Nationality
Act seeks to correct the way in which Thailand’s jus soli policy was being implemented, its implementation – as also
indicated in the article – hinges on proof of birth in Thailand. The big snag
there is that under Thailand’s previous civil registration law (also significantly
and positively reformed in 2008), children born in the country whose parents
were “illegal” foreigners, were often refused access to birth registration.
This means that the group which should benefit from the new pathway to
citizenship is precisely the group which may have difficulty proving their
facts of birth, including – critically – date and place of birth. Similarly,
where first the parent or grandparent’s entitlement to nationality must be
established, the children or grandchildren’s ability to benefit from the same route
to nationality depends on their ability to establish the family connection –
also tricky without a birth certificate. This means that the processing of
applications under the 2008 Nationality Act is not straightforward and other
forms of evidence must be gathered in order to satisfactorily establish the
facts of a person’s birth, such as witness testimony, a hospital or other
health record, or a DNA test. A significant investment in time and resources
may be required in order to achieve this – something which may be beyond the
means of the people concerned.
Notwithstanding the evidentiary problems, with such a
large stateless population in the country and therefore a potentially huge
number of beneficiaries of the 2008 Nationality Act, the sheer number of cases
that require processing presents its own difficulties. The ultimate authority
to approve an application for nationality under this provision lies with the
Interior Ministry at the central level, thereby placing a massive burden on
time and resources, with cases becoming easily bottlenecked. At a seminar we
attended during our research trip to Thailand, a representative of the Ministry
of Interior explained how there was, quite simply, a problem of man-power that
was causing a backlog in the processing of applications and the issuance of
paperwork to those whose cases had been approved. At the same time, there are
also capacity issues at the district level where the civil registrar is the
person responsible for accepting an application and preparing the documentation
for submission to the central level for approval. In many districts, the
registrars do not have the required knowledge to ensure that the files are
completed and all necessary evidence is included for the case to be processed
successfully. Again, at the symposium, a problem raised was the lack of
sufficient resources to provide training to registrars (of whom there are more
than 2000 spread across the country) and there is also a problem of
institutional memory since the registrars don’t tend to stay in their jobs for
long, taking their knowledge of the relevant procedures and of the community
they serve with them when they move on. This is hugely unfortunate since there
are significant success stories of districts in which a single registrar who
has taken the time to comprehensively prepare all of the accompanying paperwork
with the applicant has been able to help dozens or even hundreds of people to acquire
nationality.
Other impediments that were pointed out to us during
our research trip, in particular by the various NGOs that are working with
beneficiary communities to help them process their applications for nationality,
related to discriminatory attitudes towards ethnic minority people encountered
among government officials, as well as corruption. In some instances, registry
officials refuse to accept applications, deliberately forward incomplete files or
demand a high ‘processing fee’ (which is not prescribed by law). Since the
implementation of the 2008 Nationality Law are ultimately dependent on the
cooperation of their district registrar – this is where applications must be
submitted – such situations at the local level stand in the way of the successful
reduction of statelessness regardless of the policy that the central authority
has put in place. Other key actors, such as the village head whose testimony
may be required as evidence of the facts of an applicant’s birth, may also
obstruct the process by demanding payment or refusing to cooperate. Moreover,
although many NGOs are working to guide people through the process of acquiring
nationality, some raise concerns about whether these groups hold all of the
required knowledge and there is a sense that many organisations are working
towards the same goal, but without necessarily cooperating closely and sharing
expertise or success stories. There appears therefore to be room for capacity
building within civil society as well.
Time
for a citizenship campaign?
It is somewhat remarkable that Thailand’s 2008 reform
to its nationality law, with its apparent potential for reducing the number of
cases of statelessness in the country, has not received more attention and analysis.
While it is always tricky to compare countries, given their specific cultural
and political intricacies, it is worth questioning why a fully-fledged
citizenship campaign has not developed in Thailand, as it did for instance in
Sri Lanka following its adoption of a law that resolved statelessness for some
300,000 people. Could there not be a similar concerted effort to guide people
down the pathway to citizenship that was created by Thailand’s 2008 Nationality
Law, with a big awareness-raising, attitude-shifting and capacity-building
push? Would it not be sensible to hold off on any discussions about further
legal or policy reform that may be required in Thailand to ensure that
statelessness is fully resolved or prevented in future, just long enough to
harness the potential of this existing reform and then take stock of where the
real gaps are left? Is this not something that international donors, the Thai
government, UN agencies and civil society could all rally around? What is
certain, is that if indeed Thailand’s 2008 Nationality Law holds the key to the
resolution of statelessness for several tens, if not hundreds of thousands of
people, a citizenship campaign would be well worth it and not only improve many
people’s lives but also make a real dent in the problem of statelessness
worldwide.
Laura
van Waas, Senior Researcher and Manager, Statelessness Programme
