Journal of Refugee Studies The Author 2011. Published by Oxford University Press.

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doi:10.1093/jrs/fer048

Migration Control and the Solutions

Impasse in South and Southeast Asia:
Implications from the Rohingya Experience

UNHCR1
cheung@unhcr.org
MS received November 2010; revised MS received March 2011

By examining the comparative experiences of Rohingya who fled in the early

1990s to Bangladesh and Malaysia, this paper discusses implications for refugee
protection in an Asian regional context characterized by generally applicable
immigration measures and a reluctance to offer formal durable solutions.
Somewhat secure from refoulement but undifferentiated or even deliberately
invisible among larger irregular migrant populations, refugees in the region
develop certain protection strategies and livelihood mechanisms outside the
boundaries of formal asylum, which suggest they possess significant capacities
to carve out their own protection space and achieve a level of de facto integration. Given the migration-focused discourse among states and regional processes
as well as the impasse on solutions in Asia, this paper makes the case for further
recognition of available, intermediate solutions which capitalize on ambiguities
between migration management and refugee protection and empower
refugee-driven solutions in all dimensions.
Keywords: refugee, asylum, migration, integration, Asia

Introduction
In the early 1990s, some 250,000 Rohingya from Northern Rakhine State in
Myanmar (Burma) fled an intensified post-election clampdown called Pyi
Thaya, and in the years that followed, have continued to flee repressive
state policies and practices. While the vast majority of this group fled to
neighbouring Bangladesh, a smaller group of some 15,000 fled further
away to Malaysia. For some two decades, these Rohingya refugees have
remained in a protracted situation of displacement in camps and semi-urban
settings in Bangladesh, and in the urban centres of Malaysia, caught in an
apparent impasse between migration control policies and dim prospects for
solutions.

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SAMUEL CHEUNG

Samuel Cheung

Rohingya Displacement to Bangladesh and Malaysia

The term Rohingya commonly refers to Muslims from Northern Rakhine
State (formerly Arakan) in Myanmar who form an ethnic, linguistic and
religious minority and have been subjected to repeated waves of persecution
and forced displacement. These cycles of historical displacement, beginning
with the Burmese invasion of Arakan and deportation of Arakanese in 1784,
and followed by returns and armed struggle in the British colonial era (1824
1948) and further displacements after independence, formed a justification for
the Myanmar governments labelling of Rohingya as illegal migrants and
forcing them out again on several occasions.2
In 1974, at the time of constituting Rakhine State from the former Arakan
Division, the Emergency Immigration Act downgraded Rohingya to possessing only foreign registration cards rather than national registration certificates. In 1978, the Myanmar military commenced the Nagamin (or Dragon
King) operation to register all citizens prior to a national census and screen

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By examining the comparative experiences of these Rohingya who fled

to and remained in Bangladesh and Malaysia, this paper discusses possible implications for refugee protection in an Asian regional context where
few countries are signatory to the 1951 Convention and there is a corresponding absence of domestic legal frameworks to deal with matters of
asylum. Shaped not by official state policies but rather by ad hoc institutional practices which fluctuate along with domestic sentiments toward migration, the protection environment for refugees and asylum seekers in
many parts of South and Southeast Asia has often been characterized by
generally applicable immigration measures, which at times tend toward
being punitive, and a general reluctance to offer formal durable solutions
for the resolution of certain longstanding refugee situations. Somewhat
secure from refoulement but falling short of receiving a regularized right of
stay, refugees have suffered from the lack of formal, consistent policies and,
undifferentiated among larger populations of irregular migrants, have been
subjected to arrest and detention, lack formal access to labour markets and
have limited admission to certain public services such as education or health
programmes.
In this regional context, the experience of the Rohingya in Bangladesh and
Malaysia permits some useful observations regarding the protection strategies
and livelihood mechanisms that refugee populations develop when they are
unable to benefit from the legal provisions of the 1951 Convention and are
instead compelled to carve out for themselves their own protection space.
Their experience in adapting to migration control policies and enduring the
solutions impasse to find an intermediate, available solution, is indicative of
the refugee experience in much of South and Southeast Asia and has broader
implications for the meaning of refugee protection outside the boundaries of
formal asylum.

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out foreigners from citizens, an operation which allegedly resulted in widespread violence (Human Rights Watch 1996). Some 200,000 Rohingya fled to
Bangladesh, which requested assistance from the United Nations and established 13 camps along the border to deal with the influx. However, later
restrictions on food rations and the withdrawal of basic services from the
camps caused nearly all of the Rohingya to return due to the difficult
conditions.
In 1982, the revised Myanmar Citizenship Law excluded Rohingya from
the list of 135 national ethnic groups and this, combined with onerous evidentiary requirements to apply for citizenship, caused Rohingya to become
stateless and more vulnerable to arbitrary denial of rights. Then in 1991
1992, after the disputed multi-party elections won by the National League for
Democracy, the Myanmar military commenced another campaign called Pyi
Thaya (or Prosperous Country), which began with a build up of military
forces and formation of a border task force, called Nay-Sat Kut-kwey Ye
(or Nasaka) which consisted of police, military intelligence and immigration/customs and other officials. The intensified post-election clampdown
led to a second exodus. Some 250,000 Rohingya crossed into Bangladesh
while another 15,000 ultimately made their way to Malaysia. In the years
that followed, a small but steady flow of Rohingya have continued to flee to
both Bangladesh and Malaysia to escape persecution in Myanmar.3
In Bangladesh, the majority of the 250,000 Rohingya who fled in
19911992 were initially sheltered in some 20 government-administered refugee camps around Coxs Bazaar District under the authority of the Ministry
of Food and Disaster Management (renamed from the Ministry of Relief)
which was entrusted with providing asylum, assistance and relief. By executive order, the Rohingya were recognized as prima facie refugees by the government on the single criterion of being Muslim. Not long after, Bangladesh
and Myanmar signed a bilateral agreement to return those Rohingya who
could establish a so-called bona fide residence in Myanmar. A controversial
repatriation programme followed, in which almost all of the 250,000 were
repatriated to Myanmar by 2000 (Human Rights Watch 2000). Today, only
some 28,000 remain in two camps, Nayapura and Kutupalong, in the southeast district of Coxs Bazaar, but there are an estimated 200,000 Rohingya
residing in various villages and towns outside the camps, many of whom fled
in 19911992, were repatriated and since then have returned to Bangladesh
again.
According to Bangladesh policy, the prima facie recognition of Rohingya
ended with a registration cut-off date in mid-1992; those estimated 200,000
who arrived or returned after the cut-off date are not refugees and are not
permitted in the camps. At the same time, the porous border with Myanmar
means there is a constant flow of persons who enter Bangladesh illegally,
obtain daily or weekly passes to visit relatives or find day labour, or remain
inter-mingled with the population. Consistent with the governments policy,
UNHCR has not registered those outside the camps nor does it actively

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engage with this self-settled population. Refugees in camps were initially

provided with temporary ration cards which were then replaced by family
books and finally individual refugee identification cards issued by UNHCR.
Documentation is not provided to those refugees outside the camps.
Refugees in the camps live in generally poor, although improving, conditions with an alleged government position against improving facilities for fear
of attracting more Rohingya (Hussain 2010). Refugees are not formally
allowed to leave the camps without specified reason as the government perception is that access to the labour market would constitute local integration.
However, many refugees, especially men, do leave through private arrangements with the authorities to work in nearby villages and towns and there is
significant inter-mingling with the local community. Official local integration
has not been considered an option for refugees in the camps and concerns
over an influx of more Rohingya and the potential social and environmental
problems in an already densely populated country have been often cited as
reasons not to regularize the status of those outside the camps (Daily Star
2010). Nevertheless, even with little assistance, many of the 200,000
self-settled outside the camps have achieved a degree of de facto integration
after years of stay in Bangladesh, aided by their cultural and linguistic similarities to the local Chittagonian people and shared Muslim faith (Human
Rights Watch 2000).
The Rohingyas irregular status, however, means that protection remains
insecure, both for those inside the camps affected by corruption, exploitation
and crime (Human Rights Watch 2000; Pittaway 2008) and those self-settled
outside the camps, their attempts to assimilate notwithstanding. This was
made clear in late 2009, when local authorities forcibly removed refugees
who had self-settled on the periphery of Kutupalong camp, and in early
2010, after rising anti-Rohingya sentiment among the host population, together with a campaign of violent arrests, detentions and forced repatriation
by the local authorities, caused refugees outside the camps to flee inside
Kutupalong camp for safety (MSF 2010; BBC 2010). Since then, the
Rohingya in Bangladesh continue to live as a stateless population in exile,
describing themselves as caught between a crocodile and a snake (MSF
2002). Denied the right to return to Myanmar and, particularly for the
self-settled population, unrecognized as refugees in their country of asylum,
their statelessness and lack of recognition as citizens either in Myanmar or
Bangladesh makes it all the more difficult to address their status and plight as
refugees (Pittaway 2008).
While some 200,000 Rohingya were received in camps in Bangladesh, repatriated and returned again to self-settle in Bangladesh, another group of some
15,000 Rohingya ultimately made their way to Malaysia. Those who arrived
in the early 1990s were initially issued limited documentation in the form of
protection and attestation letters by UNHCR, and were provided financial
and material assistance through the Malaysian Red Crescent Society. For the
first decade after their arrival in Malaysia, little is reported on the Rohingya

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as the population was apparently stable and well-tolerated in local society,

having also achieved a level of unofficial, de facto integration in line with that
of other migrant groups from countries such as Indonesia. While still marginalized compared to local nationals due to lack of documentation, lower educational levels and socio-economic status, they were able to access the
informal labour market and had limited access to public services such as
health programmes and, in some cases, education.
However, this period of general acceptance and de facto integration for
Rohingya in Malaysia ended in 2002 when the Immigration Act was amended
to impose stiffer penalties on undocumented persons and the formerly tolerated Rohingya were now subjected to sometimes severe enforcement measures. This also marked the beginning of a stricter migration control strategy
embraced by the Malaysian government, to curb irregular migration through
large-scale crackdowns on undocumented persons. These blitzes typically
involved intensified campaigns of immigration raids, sometimes preceded by
amnesty periods to encourage irregular migrants to leave. Such crackdowns resulted in as many as 300,000 undocumented migrants reportedly
leaving in 2002 and another 400,000 in 2005 (Aglionby 2002; Yeo 2005). In
response to the increasing risk of arrest, detention and refoulement, UNHCR
began to re-issue documentation to previously registered Rohingya as
well as to new arrivals now being caught up in the enforcement of stricter
immigration laws.
In 2004, the Rohingya in Malaysia came very close to an official local
integration solution, due in part to a problem arising from the governments
immigration crackdown strategy whereby the deportation of some one million undocumented workers led to a severe labour shortage in the country.
After negotiation with UNHCR, the government announced in parliament
and in public that it had decided to grant temporary residence permits to
10,000 Rohingya residing in Malaysia, allowing the adults to work and their
children to attend school. The Deputy Prime Minister and Home Affairs
Minister hailed it as a way to resolve a human rights issue and resolve the
labour crunch in the country (Agence France Press 2005; Bernama 2005).
The Home Minister reaffirmed: It is time they are absorbed into the labour
force. They are already here and it would be a waste if we dont recognize
them or give them job opportunities (Inter Press Service 2005). However, the
implementation exercise, which had been outsourced to local agencies and
Rohingya volunteers, was halted by the government days after it began in
August 2006 due to allegations of corruption in the process after many
non-Rohingya were being issued application forms (Malaysiakini 2006).
Despite the halt, the possibility of work permits reportedly sparked the
travel of as many as 8,000 Rohingya who either departed or transited
through Bangladesh by boat to Malaysia and Thailand in hopes of receiving
a work permit (Lewa 2008a).
Since then, there have been no indications that Malaysia will resume implementation of the Rohingya programme. In March 2010, the Ministry of

Samuel Cheung

Migration Control and the Solutions Impasse

The experience of the Rohingya in Bangladesh and Malaysia illustrates the
situation faced by many refugees in parts of South and Southeast Asia. Given
the absence of legal frameworks dealing with matters of asylum, and given
the corresponding reliance on inconsistent ad hoc institutional practices, the
protection environment for refugees and asylum seekers in Bangladesh,
Malaysia and their regional neighbours in South and Southeast Asia has
been strongly characterized by generally applicable migration control measures and a reluctance to offer formal durable solutions.
Despite several refugee flows in the past century, most notably the
large-scale displacement of Indochinese refugees during the 1970s and
1980s, South and Southeast Asia continue to hold to what Davies (2008)
calls a persistent rejection of international refugee law, and have some of
the least developed refugee legislation and asylum institutions in the world.
Among regional neighbours to Malaysia and Bangladesh, only Cambodia,
the Philippines and Timor-Leste are signatories to the 1951 Convention relating to the Status of Refugees or its 1967 Protocol. In the Philippines, domestic legislation and permanent refugee institutions have been in place for some
time, whereas Cambodia passed national laws and established a Refugee
Office only in 2008. The fragility of this refugee framework in Cambodia
was seen in acts of refoulement in late 2009, which highlights the fact that
accession to the 1951 Convention is not in itself a cure-all. Among
non-signatory countries such as Vietnam and Laos, there is no domestic
refugee legislation and UNHCR remains a primary actor, where it works
with governments toward the resolution of situations such as that of the
Montagnard refugees and is involved in capacity-building of national immigration institutions; while in Indonesia, there were positive indications toward
accession to the 1951 Convention but still no domestic legislation enacted to

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Home Affairs announced plans to issue government identification cards to

refugees, including Rohingya and others, which would regularize their temporary stay but, this time, without the right to work (Amnesty International
2010). However, the plan was discarded not long after under distinctly
different rhetoric from the Home Ministry spokesman who said: no law
allows us to issue a card to an illegal (Zappei 2010). Meanwhile, hoping
to receive the promised permits, some Rohingya continue to arrive in
Malaysia via a hazardous land or boat journey exposing them to the exploitation of brokers and traffickers (US Committee on Foreign Relations 2009)
or government push-backs, as occurred off the shores of Thailand in 2009
and 2010 (Human Rights Watch 2011). With normal population growth and
new arrivals, the Rohingya population in Malaysia has now reached an
estimated 20,000 who today cope with the stricter immigration environment
while struggling to retain the level of de facto integration they had earlier
achieved.

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practically address a steady rise in new asylum seekers. Nevertheless, none of

these countries host a population of refugees and asylum seekers comparable
in size to that from Myanmar, which remains by far the largest source of
refugees for countries in South and Southeast Asia.
The ongoing and protracted displacement from Myanmar exemplifies the
unresolved nature of disputes in South and Southeast Asia, some of which
are legacies of post-colonial power re-orderings and national integration efforts, which have made it difficult for states to reconcile contested body
politics, regional cooperation initiatives and international human rights
standards (Hedman 2006). Of the major countries of asylum for refugees
from Myanmar, which include Thailand, Malaysia, India and Bangladesh,
none is a signatory to the 1951 Convention. Other than certain prima
facie determinations in response to mass influxes, refugee policies have
rarely been based on formally-stated national policies, but rather have been
formed through ad hoc practices adopted by primarily immigration or national security authorities in response to prevailing domestic sentiments
toward migration control and enforcement. With rapidly developing economies and increasing globalization, these countries continue to witness spontaneous regional migration to the extent that, in some instances, the
number of undocumented foreign workers has been higher than the
number of those documented (Weiss 2010). Mixed migration flows contribute
to a blurred distinction between the relatively smaller refugee groups and the
larger regular and irregular migrant population and this, combined with tenuous lines of ethnic balance and national identity, further reinforces states
reliance on generally applicable, sometimes punitive, migration policies and
a reluctance to offer formal durable solutions for even the most protracted
refugee situations.
Following large-scale displacement which began with the Karens as early as
1984, Thailand hosts the largest number of refugees from Myanmar with
some 140,000 camp-based refugees and some 200,000 more outside the
camps of varying ethnicities and political profiles,4 many of whom are unrecognized and inter-mingled among a large population of migrants from
Myanmar estimated at as many as 2 million persons (UNHCR 2011;
USCRI 2009). The Immigration Act of 1979 (amended in 1992) provides
the basis for immigration regulations and enforcement and is administered
by the immigration bureau of the Thai police department, operating under
the Ministry of Interior. Section 11 of the Act requires that entry into or exit
from Thailand be in conformity with the channels specified by the Ministry
of Interior, and Section 12 excludes entry of various persons. Penalties for
those who enter without permission and for those aiding and abetting illegal
migrants include arrest, prosecution, detention and deportation.
To these otherwise generally applicable enforcement measures, the Thai
government has enacted some limited legislative exemptions for refugees
and asylum seekers. These exemptions have been interpreted to be on the
basis of Article 17 of the Immigration Act, which stipulates that [u]nder

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special circumstance[s], the Minister [of Interior], by the consent of the

Cabinet, may authorize an entry into the Kingdom subject to any condition
or exempt any alien from compliance with this [Immigration] Act. Several
cabinet resolutions and executive orders have been promulgated to this effect,
regulating the admission into and stay of specific groups of refugees.
Considering them under the rubric of national security, bodies such as the
military, the National Security Council and the Ministry of Interior have
played primary roles in dealing with refugees and asylum seekers. Their practices have unsurprisingly been ad hoc, depending on the evolving security and
political interests involved, with a variety of inconsistent terminologies having
arisen for categories of displaced persons.
After establishing camps along the Myanmar border following the displacements which began in 1984, the Thai government convened provincial admissions boards in 1999 to regularize the status of those existing camp residents
by screening them according to the term, displaced persons fleeing fighting.
Those who did not meet the criterion of fleeing fighting and indeed all
refugees and asylum seekers outside the camps were considered illegal migrants, subject to immigration regulations which include arrest, indefinite
detention and deportation. Functions of the provincial admissions boards
have been intermittently suspended since 2001 following two prominent security incidents at the Myanmar Embassy and Ratchaburi Hospital, after
which the Thai government chose to discourage new arrivals from
Myanmar (Nation 2000). In 2003, after UNHCR-recognized refugees were
discovered planning a demonstration, UNHCR was told to suspend refugee
status determination for asylum seekers from Myanmar. UNHCR then began
recognizing Myanmar asylum seekers as persons of concern, or POCs,
further frustrating relations until the government announced in 2005 that
all POCs would be required to move to government camps. UNHCR
ceased refugee status determination functions while the provincial admissions
boards, this time with an additional category of those fleeing political persecution in an attempt to align the criteria more closely with the refugee
definition, resumed functions until being suspended again in 2007 and since
then functioning intermittently. For camp-based refugees, local integration
was never considered and resettlement has been the preferred durable solution. In 2009, Thailand was the largest resettlement operation globally with
over 16,800 refugees resettled (UNHCR 2009b). Meanwhile, those outside
the camps risk enforcement of generally applicable immigration measures,
with consequences which range from referral to provincial admissions
boards for relocation to camps or, for some new arrivals such as Rohingya
boat people, potentially deadly push-backs to sea (Human Rights Watch
2011). Depending on the political climate and their ability to blend in with
the migrant community in Bangkok or disappear into the Thailand
Myanmar borderlands, some have been able to evade immigration enforcement entirely. Lang (2002) observes how many refugees choose not to identify
themselves as persons of concern to UNHCR and other international actors

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and instead negotiate their existence and face the hazards to which ordinary
illegal immigrants are exposed as if the protection apparatus did not exist (p.
178).
Bangladesh hosts the second-largest number of refugees from Myanmar.
None of the laws governing immigration, such as the Passport Act of 1920,
the Foreigners Act of 1946 and the Control of Entry Act of 1952, make any
reference to refugees or asylum seekers. Hence, by law all those without a
visa or permit can be charged under the Foreigners Act for illegal entry or
stay, under penalty of imprisonment up to five years and a fine or deportation. However, there exists an arguable tradition of providing asylum to
populations fleeing persecution and human rights violations in neighbouring
countries found in Article 31 of the constitution, which provides legal protection for every other person for the time being in Bangladesh, and in
particular no action detrimental to the life, liberty, body, reputation of any
person shall be taken except in accordance with law. Article 25(1)(C) of the
Fundamental Principles of State Policy also asserts that Bangladesh shall
support oppressed peoples throughout the world waging a just struggle
against imperialism, colonialism and racism. Bangladeshs history of hosting
Rohingya, with the earliest arrivals recorded in 1948, and its prima facie
recognition of those residing in the camps has arguably been on this basis.
As discussed above, local integration has not been considered for camp-based
refugees and, despite years of de facto integration and inter-mingling for
those self-settled outside the camps, the protection environment has remained
precarious, subject to change depending on the political climate and attitudes
of the host community.
While difficult to determine precisely, it is estimated that India hosts more
than 60,000 persons from Myanmar, primarily ethnic Chin who settled in the
Mizoram hills, with a much smaller number who travelled to Delhi to apply
for refugee status (Alexander 2008; USCRI 2009). In India, the Foreigners
Act of 1946 addresses the treatment of all foreigners, with persons violating
their conditions of entry liable to face prosecution and deportation. However,
the government of India has also introduced some measures for the protection of certain categories of refugees and asylum seekers, particularly in instances of mass influx. These specific policies, which have included, at times,
land allocation, access to social services and issuance of travel documents,
depend greatly on Indias regional strategic or political considerations and the
nationality of the asylum seeker, and have most notably been implemented
for Tibetans and Sri Lankans.
Other refugees and asylum seekers in India, including those from
Myanmar, do not benefit from government assistance and would technically
fall under the generally applicable enforcement provisions of the Foreigners
Act of 1946, but for the Indian court systems reading in of international law.
The Indian constitution states in Part IV, Article 51(c) that the State shall
endeavour to foster respect for international law and treaty obligations in the
dealings of organized peoples with one another. On this basis, the Indian

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Supreme Court has also held that, subject to consistency with domestic
jurisprudence, courts can read in provisions of international conventions
and norms into domestic law, including customary law principles of
non-refoulement. Nevertheless, interventions depend on the individual interpretation of a particular judge or magistrate as well as the asylum seekers
status with UNHCR. A significant population have not been registered with
UNHCR and instead assimilate into the local population. Local integration
has also not been considered for refugees from Myanmar, with resettlement
being the preferred solution.
Malaysia hosts more than 80,000 refugees from Myanmar, including
Rohingya as well as other ethnic groups; precise numbers may be much
higher depending on estimates of the unregistered population (USCRI
2009; UNHCR 2009b; Amnesty International 2010). As in its Southeast
Asian neighbours, the refugee population constitutes a small part of a
larger migrant population, with foreign migrants comprising some 2 million
out of Malaysias 12 million work force (Ng 2011) With no mention of
asylum in the constitution nor any legislative provisions dealing with the
right to seek asylum, refugees and asylum seekers are instead treated in accordance with generally applicable immigration regulations as implemented
by the immigration department, which operates under the authority of the
Ministry of Home Affairs. The amended Immigration Act 1959/63 provides
the basis for these immigration regulations, under which individuals are
divided into two simple categories: legally documented persons and illegal
undocumented persons.
As discussed above, the Immigration Act was amended in 2002 to impose
stiffer penalties on undocumented persons. Penalties under the Act include
arrest, detention, prosecution, imprisonment, deportation and even judicial
caning (or whipping). The Act also provides significant enforcement powers
to the police and immigration authorities for the arrest, detention and deportation of any undocumented person, and permits, for example, detention
for as long as is necessary to arrange for removal and deportation. The Act
not only penalizes refugees, but makes any occupier of land liable to face
similar fines, imprisonment or even judicial caning for harbouring illegal
immigrants. These harbouring provisions have caused even charitable organizations to fear that providing educational, health or other kinds of assistance to refugees and asylum seekers may be construed as harbouring
under the Act and be penalized accordingly. In the absence of domestic institutions, UNHCR performs all functions of registration, status determination and documentation, but without written agreement from the
government, its interventions vary in effectiveness depending on the political
climate. UNHCR documentation has not been formally recognized and affords a measure of protection only at the discretion of local enforcement
authorities who may or may not choose to recognize it. Other than the
aborted Rohingya permit programme in 2006 and withdrawn plans for
government-issued refugee cards in 2010, measures towards formal local

Migration Control in South and Southeast Asia

11

integration have never been seriously considered in Malaysia and resettlement

remains the main, if not only, durable solution. In 2009, Malaysia represented
one of the largest resettlement operations for UNHCR with over 7,500
people resettled from Malaysia (UNHCR 2009b).
Protection Space and Intermediate Solutions
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In this regional context, the Rohingya have remained for almost two decades
in a protracted situation and, without the benefit of the legal provisions of
the 1951 Convention nor a domestic framework for refugee protection, have
developed certain protection strategies and livelihood mechanisms to adapt to
these circumstances and carve out for themselves their own protection space
outside the boundaries of formal asylum. Adapting to migration control
policies which fail to differentiate them from larger populations of irregular
migrants, and sometimes subject to punitive immigration measures, they have
endeavoured to find an intermediate, available solution, largely secure from
refoulement but falling short of a regularized right to stay, with informal
access to labour markets and certain available public services, yet still shy
of the full realization of rights and entitlements which characterize local
integration.
Several UNHCR-commissioned non-governmental as well as independent
academic studies have examined the protection gaps and livelihoods of the
estimated 200,000 refugees who have self-settled in various villages and towns
outside the camps in the Coxs Bazaar, Bandarban and Chittagong districts
of Bangladesh as well as the 28,000 in the two government-administered
camps of Nayapara and Kutupalong. In March 2007, UNHCR published
summaries of consultations held with refugees in the two
government-administered camps (UNHCR 2007a) and in May 2007, published an analysis of gaps in protection for camp-based Rohingya refugees
based on statistical and sectoral reports by UNHCR, partner agencies and
participatory assessments (UNHCR 2007b). In August 2008, a study commissioned by the Netherlands examined the forced migration experiences,
protection problems and livelihoods of self-settled Rohingya in Bangladesh
through interviews conducted between June 2007 and February 2008 (Lewa
2008b). In May 2009, UNHCR and ILO commissioned a rapid appraisal of
the livelihood capabilities of camp-based refugees in Bangladesh (UNHCR
and ILO 2009). Other useful studies have also examined the situation of the
now 20,000 Rohingya who settled in Malaysia. In 2005, a group of academics
brought together by a local human rights organization interviewed Rohingya
in Malaysia, examining the overall demographic profile, socio-economic
status, livelihood, experiences and problems (Suaram 2005). Then in 2008
2009, UNHCR conducted surveys of randomly selected heads of households
having their documentation renewed between October 2008 and March 2009,
as well as undertaking participatory assessments with focused groups of individuals (UNHCR 2009a).

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A comparative analysis of these studies, while certainly not conclusive,

permits some limited observations regarding the protection strategies and
livelihood mechanisms developed by Rohingya who left Myanmar at the
same time in the early 1990s but since then have remained in two separate
countries, each with its own particular refugee policies and available protection space. One observation is that, given the fluidity of borders in South and
Southeast Asia, refugees often follow normal urbanization trends in search of
greater economic opportunities, sometimes at the cost of personal security.
For example, the demographic profile of Rohingya in Malaysia reflects
certain traditional patterns of urban migration, with a higher proportion of
males, unmarried singles and smaller average household sizes in the relatively
more urban cities of Malaysia than in Bangladesh. Selection of geographic
location is also extremely urban in Malaysia with the vast majority centred in
the three major cities of Penang, Selangor and Kuala Lumpur, compared to
the more semi-urban coastal and hilly regions selected by refugees in Teknaf,
Coxs Bazaar and Ukhiya in Bangladesh. A major driver in this trend is likely
the fact that wages in the informal labour market are several times higher in
Malaysia, where the average labourer earns RM601 to RM800 per month
(US$171$228), compared to Bangladesh where a typical labourer earns
BDT1,800 to 3,300 per month ($26$50) (UNHCR 2009a; Lewa 2008b).
Employment is more urban and service-oriented in Malaysia (construction,
factories, restaurants and cleaning), compared to seasonal and day labour in
agriculture and fishing in Bangladesh.
Given these economic parameters, Rohingya refugees remain in and continue to be attracted to Malaysia, despite the more punitive migration control
measures enforced there and potential exploitation or abuse by employers due
to their irregular status. Arrest and deportation rates are extremely high in
Malaysia, with almost half of all individuals having experienced arrest and
multiple deportations, as well as a significant number reporting being
whipped. In contrast, arrest and deportation were not significantly reported
in Bangladesh until recent crackdowns in early 2010. Despite this, the migratory trend is that Rohingya travel from Bangladesh to Malaysia, and not vice
versa. One local media account portrays Rohingya in Bangladesh who toil in
poverty and dream of better jobs in nearby Malaysia, which is viewed as a
Muslim promised land of prosperity and opportunity (Rahman 2010), contrasting strongly with human rights groups which describe Malaysia as an
unwelcome and dangerous place (Amnesty International 2010). Possession
of documentation is not determinative, as while many Rohingya in Malaysia
possess UNHCR documentation, this has not been formally recognized by
the government as a substitute for national identification cards and may not
prevent enforcement of immigration laws. By contrast, in Bangladesh, neither
the Rohingya outside the camps nor most local nationals possess formal
documentation. However, recently-listed voters have been issued with identity
cards after it was discovered that some Rohingya had been registered to vote,
in a development carrying negative effects for Rohingya no longer able to

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hide their identity (Lewa 2008b). Increasingly hostile popular attitudes and
decreasing assimilation have contributed to a deteriorating protection environment in Bangladesh since early 2010, which may persuade even more to
migrate to Malaysia.
This interplay of urban migration, access to livelihoods and personal security is one illustration of how refugees navigate their own protection space.
While not a strictly defined term, UNHCR has most recently described protection space as the extent to which a conducive environment exists for the
internationally recognized rights of refugees to be respected and their needs to
be met (UNHCR 2009c). Indicators include: absence of threats of refoulement, arrest or detention; freedom of movement, association and expression;
access to livelihoods and the labour market; adequate shelter and living conditions; legal residency rights and documentation; access to public services;
and harmonious relationships with other communities (ibid). Under this
rubric, the Rohingya example illustrates that, while refugees have limited
capacities to influence the legal and political factors of available protection
space, such as documentation and residency rights and risks of arrest, they do
demonstrate significant capacities in relation to livelihoods, access to public
services and relationships with the host community. Moreover, migratory
patterns indicate that their capacities in this respect, combined with available
social and economic opportunities, may drive them over and above personal
security concerns. With respect to urban refugees, Bruijn (2009) observes this
dualism in urban settings, noting increased exposure to exploitation and insecurity, on the one hand, and the particular resourcefulness of refugees and
potentially better access to education, health, credit and communication facilities, on the other.
However, the superior economic opportunities available in Malaysia do not
necessarily correspond to greater de facto integration. Local integration has
been characterized as comprising three components, economic, social/cultural
and political (UNHCR 2003). The economic component includes progressive
self-reliance and sustainable livelihoods, the social and cultural component
relates to interactions with host communities without discrimination or exploitation, and the political component involves the progressive realization of
rights and entitlements enjoyed by local citizens (ibid). Jacobsen (2001) and
Banki (2004) have separately argued for the recognition of de facto or intermediate integration, particularly in relation to self-settled refugees who
remain in an insecure and temporary legal status but who have achieved a
level of unofficial integration. Distinct from local integration as an end result,
they have set out some indicators of this sort of integration, including, among
others: refugees living dispersed among the local population, social networking through, for example, intermarriage, and land ownership or unofficial or
official access to it.
In the case of the Rohingya, inter-mixing with locals appears greater in
Bangladesh, where many Rohingya were supported by locals upon arrival
with easier interaction given their shared similar linguistic and cultural

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Implications for Refugee Protection

Given the scarcity of state signatories to the 1951 Convention and domestic
legal frameworks, refugee policies in South and Southeast Asia will likely
continue to be dictated by generally applicable, sometimes punitive, migration
control policies rather than a formal legal framework for protection.
Case-by-case exceptions to the rule may arise but national treatment of refugees and asylum seekers continues to be ad hoc, depending on the nationality
of the asylum seeker, regional strategic and political considerations and
otherwise based on a remote sense of international obligation or humanitarianism left to the discretion of field-level immigration officials or magistrate
judges.
The predominance of this migration control-oriented approach, as well as
the general reluctance to assume additional responsibility for finding durable
solutions, have deep roots in Asia which arguably can be traced to the regions first major responsibility-sharing agreement, the Comprehensive Plan

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background. In Malaysia, however, few have friendships with locals and most
live near other Rohingya. In Bangladesh, a significant proportion of
Rohingya married locals and Rohingya men favour intermarriage with
Bangladeshis as a protection tool, compared to Malaysia, where Rohingya
rarely married locals and, if they did marry non-Rohingya, these were generally other illegal foreigners, primarily Indonesians. Accommodation is
strictly rental in Malaysia while options in Bangladesh include ownership,
rental or housing free-of-charge or in exchange for work. Hence, while
most Rohingya in Bangladesh have remained in the same place of residence
since the early 1990s, those in Malaysia have been more transient and mobile.
Access to education for children also appears higher in Bangladesh, where
there are several non-government schools and in Coxs Bazaar refugees
access to government schools is comparable to locals, whereas in Malaysia,
lack of documentation prevents almost all refugees from accessing public
education and there are only a few community-run or religious schools for
refugees. Access to education does not necessarily correspond with education
levels, as significant numbers are able to speak, read and write Malay,
Burmese and English in Malaysia where such skills are more necessary, compared to very high levels of illiteracy in Bangladesh.
Indicators such as social networking and intermarriage, access to land
ownership and other access points to the local population suggest that superior economic opportunities in Malaysia alone do not necessarily correspond to greater de facto integration, particularly with respect to the social
and cultural components. On the other hand, migratory patterns and the
lure of greater earning potential in Malaysia, particularly where there is
even the remote possibility of an official integration solution, may continue
to outweigh the de facto social and cultural integration available in
Bangladesh.

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of Action for Indochinese Refugees (CPA), adopted in 1989. In this plan,

recognized as a major multilateral achievement to address a continuing influx
of Indochinese boat people, push-backs by countries of first asylum and
decreasing third country resettlement opportunities, a local integration solution was never offered and instead resettlement was the primary mechanism,
entrenching in some Asian states a historical precedent for relying on
Western-supported permanent solutions (Robinson 2004). Davies (2008)
goes even further to suggest that Southeast Asian states learned from the
CPA that refusal to provide even temporary asylum would reap more resettlement offers. Through the CPA, of the nearly 250,000 Vietnamese boat
people given temporary asylum in Malaysia in eight camps, some 240,000
were resettled in Western countries, while some 9,000 returned to Vietnam
(UNHCR 2001). Today, refugees from Myanmar represent the largest group
benefiting from resettlement with 24,800 resettled, primarily from Thailand
and Malaysia, in 2009 (UNHCR 2009b). Nevertheless, there remain constant
references to the CPA and a perception that the international community is
not doing enough to persuade third countries to resettle more refugees from
first asylum states. This persistent impasse on solutions is a major reason
why Rohingya refugees in Bangladesh were identified in June 2008 among
four other situations to be targeted under the Protracted Refugee Situation
Initiative aimed to ameliorate conditions, ensure protection and identify appropriate solutions (UNHCR 2008a). Yet it is clear that this situation extends
beyond the Rohingya in the camps to those self-settled outside the camps in
Bangladesh, those in the cities of Malaysia as well as to other refugee groups
throughout South and Southeast Asia. Of the 5.2 million of the worlds
refugees identified as living in exile for more than five years, the largest
proportion are in Asia (ibid.).
Built into the CPA were also migration management components, such as
screening mechanisms and an orderly departure programme, devised on the
basis that not all of the boat people were leaving their country for
refugee-related reasons and that resettlement had created a pull factor, fuelling migratory pressures by providing incentives for people to leave Vietnam
(UNHCR 1995). This recognition that the nature of the exodus had changed
from prima facie refugees to mixed migration, including both refugees and
economic migrants, similarly set a pattern for refugee protection overlapping
heavily with migration control, which carries on until now. Today, regional
and ministerial processes in South and Southeast Asia which deal with refugees and asylum seekers focus primarily on labour migration or linkages
between security and migration. Refugees and asylum seekers are often mentioned but without clear reference to or foundation in the rights-based framework of protection, in part out of a reluctance to encroach on regional
principles of non-interference and national sovereignty (Abrar 2001;
Pearson 2009). When ASEAN states were confronted with the Rohingya
boat people issue in 2009, rather than activating human rights mechanisms
within the ASEAN charter, the issue was delegated to the Bali Process on

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People Smuggling, Trafficking in Persons and Related Transnational Crimes.

Despite the Bali Processs positive initiatives on trafficking, the handling of a
protracted refugee situation within a process established to address border
control, security, law enforcement and documentation fraud, typifies the regions preoccupation with notions of illegal migration and risks further securitization of migration and displacement-related issues (Matthieson 2009;
Hedman 2009). Even processes such as the Asia-Pacific Consultations on
Refugees, Displaced Persons and Migrants struggle to gain traction when
outnumbered by other predominantly migration-oriented bodies, where progress is measured by the slow and gradual insertion of human rights language
rather than a direct discussion of the root causes of displacement or proposals for comprehensive solutions.
Acknowledging the challenges for humanitarian actors and their limitations
in attempting to unlock protracted refugee situations, UNHCR laid out a
targeted, staged, comprehensive and developmental approach which balances
long-term solutions with current protection interventions (UNHCR 2008a).
On protracted situations, Durieux (2009) has similarly acknowledged that
responsibility-sharing often fails to deliver fairness and the protection framework does not contain in itself either the normative or cooperative instruments which will deliver the sought-after permanent solutions. Hence, he
advocates that protection and solutions be worked on creatively and dynamically all the time to move a regime toward these twin objectives (ibid.). This
creative and dynamic approach is particularly relevant in the context of
South and Southeast Asia as conceptualizations of protection and solutions
become increasingly intertwined. Protection strategies which not only promote enjoyment of legal and political rights, such as safety from detention
and refoulement, but also incorporate many of the social and economic elements that constitute a local integration solution, such as access to livelihoods
and harmonious host community relations, are very relevant in the many
urban spaces of South and Southeast Asia (UNHCR 2009b). At the same
time, local integration is also increasingly being recognized not as a once and
for all solution but instead involving a complex and gradual two-way process,
both dynamic and multi-faceted (UNHCR 2005). Recognition of intermediate
stages of integration, often falling outside the boundaries of formal asylum,
independent of international assistance and, at times, in defiance of or deliberately invisible to host government regulations, is all the more important to
address the several protracted situations in the region and should be factored
into any protection strategy.
While providing a good example of the impasse between migration control
policies and durable solutions, the Rohingya displacement also illustrates
certain ambiguities in the protection space available to refugees and migrants
alike. In Bangladesh, government-recognized Rohingya refugees in camps live
next to unrecognized self-settled Rohingya who come from the same original
displacement group, with those within the camps awaiting a formal solution
through potential resettlement or repatriation and those outside the camps

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achieving a level of de facto integration despite being precariously without

status. In Malaysia, UNHCR-recognized Rohingya refugees also found a
level of unofficial integration similar to other migrant groups until an immigration policy shift in 2002 exacerbated their undocumented status and the
attempt to regularize their status, reconciling their long-term presence in the
country with domestic labour needs and humanitarian considerations,
was abandoned. While not absolving states of their own obligations, an
acknowledgement of the solutions impasse in the context of South and
Southeast Asia implies understanding that, whereas governments may be
reluctant to assume additional formal responsibilities toward durable solutions, there may nevertheless be room for intermediate solutions, such as
the de facto integration achieved by the Rohingya. Furthermore, the discourse of mixed migration continues to resonate strongly among states
in the region, reflected in Southeast Asia being a focal point for
UNHCRs 10-Point Plan of Action (UNHCR 2007c). With mixed migration
likely to remain the norm and migration management the common language
of states and regional processes in South and Southeast Asia, intermediate
solutions most likely to find success will be those which capitalize on the
ambiguities and overlaps between migration management and refugee protection and can be framed in their migratory context with potential migration benefits.
The protection strategies and livelihood mechanisms developed by populations such as the Rohingya also raise certain worthwhile considerations regarding the meaning of protection and possibilities for solutions. Most
notably, these observations show that, without the benefit of the legal
terms of the 1951 Convention, refugees have the capacity to carve out their
own protection space and achieve a level of de facto integration, even in
the face of punitive immigration enforcement measures and sometimes
beyond what international actors or the formal refugee framework can
offer. While their capacity to influence the legal and political circumstances
may be limited, their ability and determination to navigate the economic,
social and cultural aspects of available protection space should not be
underestimated.
UNHCRs Protracted Refugee Situation Initiative places particular focus
on, among other things, self-reliance possibilities for sustainable livelihoods,
rooted in the principle that exiled populations should be able to meet a
progressively greater proportion of their own needs and enjoy a steadily
growing level of prosperity and human security (UNHCR 2008a, 2008b).
With fluid borders and high human mobility in South and Southeast Asia,
refugees will likely continue to follow normal migratory patterns and urbanization trends in search of greater economic opportunities, despite concerns
over personal security, and have demonstrated significant capacities to do so.
In light of this, protection and solutions strategies should factor in selfreliance and sustainable livelihoods by seeking to empower a refugee-driven
solution through refugee-demonstrated capacities. For example, while

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Samuel Cheung

1. The views expressed are the personal views of the author and may not necessarily
be shared by the United Nations or by UNHCR.
2. For a concise summary of the Rohingyas historical displacement to Bangladesh,
see Human Rights Watch (2000).
3. For a recent overview of the situation of Rohingya in Myanmar, see Irish Centre
for Human Rights (2010).
4. For a detailed understanding of the nature and causes of displacement from
Myanmar to Thailand and the varying ethnic and political profiles of refugees,
see Lang (2002).

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