Labor Migration as the Fourth Durable Solution

asylum, and resettlement in a third country). More recently, they have also adopted a more comprehensive approach titled “Complimentary Pathways”, which looks for solutions through different pathways such as those ‘used to facilitate international mobility for education, work and family reunion’ (UNHCR, 2016).

In spite of the general recognition of the efficacy of a blended approach, most solutions offered in regards to the protracted refugee situation along the Thai-Myanmar border still revolve around efforts towards voluntary repatriation. This is due in part to the termination of large-scale resettlement programs coupled with a low level of confidence in ever achieving significant rates of local integration in Thailand. Additionally, international humanitarian funding has slowly been shifting from the border into development projects inside Myanmar, further strengthening the message that return is the preferred outcome for international stakeholders.

6.3 Labor Migration as the Fourth Durable Solution

“If the Thai government said, those who have stayed here more than 15 years, they are qualified to remain and stay in Thailand. If they opened up this

opportunity, maybe 75% will remain. That’s the truth.”

~ Moo Beh, 39

The possibility of incorporating labor migration as an official component to

voluntary repatriation programs started to gain traction during the repatriation of Afghan refugees from Pakistan and Iran in 2002 through 2009. The Afghan repatriation was

significant in this regard as it represented refugees who were returning to a fragile country that was still emerging from a long-term conflict. Specifically, the remittances provided by

Afghan refugees who were also working as labor migrants in Pakistan and Iran created ‘an important source of economic capital for reconstruction, reducing dependency on

international aid and contributing to the state's reconstruction’ (UNHCR, 2003a; Monsutti, 2006; Tennant, 2008; Long 2009:14). In another example, Long (2009) has pointed out that practices of labor migration in fragile states such as Somalia have played a ‘crucial role in sustaining economic survival in major segments of the country', with one-third of families receiving remittances estimated to bring in up to a billion dollars a year (as cited in Fagen 2006:15).

However, the concept of labor migration has not always been a natural fit for resolving protracted refugee situations. This is largely due to the vehement assertion by both practitioners and academics of forced migration, that refugees and migrants are two distinct categories of people. A salient example of this can be seen in the comments made by Erika Feller, the Director of the Department of International Protection at UNHCR in 2005, when she cautioned that it could be “dangerous and detrimental to refugee

protection, to confuse the two groups, terminologically or otherwise”(Feller, 2005:27). The inclination to differentiate the two groups lies in the legal protections afforded only to the official categorization of ‘refugee’, namely in the principle of non-refoulement²⁸. In this way, it has been argued that while regular migrant workers are usually expected to return to their country of origin, refugees may still be at risk and should not be expected to return

28 The principle of non-refoulement constitutes the cornerstone of international refugee protection. It is enshrined in Article 33 of the 1951 Convention, which is also binding on States Party to the 1967 Protocol.

Article 33(1) of the 1951 Convention provides:

“No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his [or her] life or freedom would be threatened on account of his [or her] race, religion, nationality, membership of a particular social group or political opinion.”

should their work come to an end (Moretti, 2015). Long (2013) provides an excellent analysis and historical contextualization of the separation between ‘refugee’ and ‘migrant’

that lends itself to the current discussion of refugee labor migration. She notes that

refugees were essentially separated from migrants in the 1950’s when they were provided with an exceptional right to cross borders and claim asylum. However, she argues that in creating a special route for admission deliberately set apart from migration, “the

humanitarian discourse that protects refugees from harm actually prevents refugees from finding durable solutions, which depend upon securing an economic livelihood and not just receiving humanitarian assistance” (pg.4-5). Thus the housing of refugees as a separate population and their exclusion from the labor market exacerbates the protractedness of refugee situations.

By 2007, UNHCR was actively discussing the benefits of regularization of status in one’s country of asylum, noting that people could develop skill sets, save money and

provide support to families and communities back home by means of remittance transfers.

They had also amended their formal position on labor migration as an effective compliment to voluntary repatriation, noting in their 10-Point Action Plan on Mixed Migration and Refugee Protection that “beyond the classic durable solutions, legal migration opportunities may open up a complementary avenue for some refugees” (Para. 7). Additionally, UNHCR recognized that when refugees engaged in the labor market abroad, they effectively reduced the competition for jobs and other scarce resources in their country of origin, indirectly contributing to the peace-building process. These changes in policy have come to represent a more progressive approach towards solving protracted refugee situations and have been mostly positive for the outlook on the Thai-Myanmar border. However, in order

for refugee policy involving labor migration to succeed, the receiving country must be amenable to altering their foreign labor laws to allow for forced migrants. This has been difficult to achieve across the board, especially in relation to requiring identification and citizenship documents from a labor migrant’s home country, something most refugees are unable or unwilling to obtain.

In Thailand alone, there have been seven regularization campaigns organized for labor migrants from Laos, Cambodia, or Myanmar between 2004 and 2018 (Moretti, 2015;

CSEAS, 2018). This has resulted in the registration of 2.4 million migrant workers and incentivized employers to continue the effort. However, the trend towards the increased criminalization of irregular migrants in Thailand coupled with a policy that offers little to no path for stateless refugees to register is highly problematic. Additionally, the ability of the government to require that foreign workers live in fixed areas of the country creates a situation ripe for exploitation not dissimilar to the current context of illegal workers residing in camps or settlements.

In order for a “fourth solution” to offer a plausible resolution to the protracted refugee situation along the Thai-Myanmar border, three primary areas would need to be addressed. First, Thailand must amend its migration law, specifically the Alien Employment Act B.E. 25512 (AEA 2008), in relation to Nationality Verification (NV) requirements for the registration of labor migrants. Currently, the country of origin is obliged to process

nationality verification and issue formal identification such as passports or other documents to irregular migrants. To accommodate those individuals unable to obtain nationality verification, such as stateless refugees, Thailand would need to accept UNHCR identity documents (or something similar) for registration in lieu of official documents

from Myanmar. Secondly, Thailand has frequently raised concerns that a less burdensome registration policy for irregular migrants, such as one that allows exceptions for national identity verification, would create an overwhelming pull factor for new labor migrants into specific regions. In order to allay these fears, stricter refugee status determination

procedure should be implemented by either the Thai Provincial Admissions Boards (PABs) or UNHCR that guarantees the validity of identification documents for refugees. Thirdly, Thailand must address the barriers migrant workers face in accessing social protection benefits to reduce further exploitation. Labor migration cannot be an effective strategy for resolving the protracted refugee crisis along the border if there are still substantial gaps in protections for workers. Human trafficking, low wages, and forced labor continue to be problems for many industries in Thailand including both the fishing and agricultural sectors. This area does appear to be progressing however; in November of 2017, both Prime Ministers from Thailand and Myanmar signed the ASEAN Consensus on the Protection and Promotion of the Rights of Migrant Workers and agreed to abide by its regulations. This is indeed a hopeful development and potential sign of a more orderly and effective transnational migration agreement for Thailand and Myanmar.

6.4 Self-Reliance Pending Return

The concept of self-reliance or ‘standing on ones own two feet’ was a topic that came up time and again in my conversations with Karen living inside Mae La camp. It was an issue that was deeply linked to notions of pride, self-worth and ancestral history. I

frequently heard stories celebrating the resourcefulness of the Karen, often highlighting the parents or grandparents who had crossed mountains or survived in jungles for months or years on end. There were also first hand accounts of living through vicious fires and