In December, Rafiullah’s fears were realised when his 14-year-old nephew was caught trying to enter Malaysia on foot and detained.
The boy is now among 756 children Malaysia’s home minister reported to be in immigration detention across the country as of October 26, and like 405 of them, Rafiullah’s nephew is on his own.
“This is the time when my nephew should be studying, but he has to serve his sentence,” Rafiullah, a Rohingya refugee from Myanmar, told Al Jazeera. “I worry his life will be destroyed.”
The Malaysian government has been working with civil society for years on alternatives to immigration detention for children – focusing on those who are alone or have been separated from their families – but progress has been slow. Meanwhile, hundreds of children languish in detention, which experts say can be detrimental to their physical and psychological wellbeing.
“If a child is accompanied or unaccompanied, whether refugee or undocumented migrant worker, they are still children,” professor Noor Aziah, the children’s commissioner of Malaysia’s Human Rights Commission, known by its Malay acronym SUHAKAM, told Al Jazeera. “The government must put children’s best interests as a first priority.”
Rafiullah, who had warned his relatives in Myanmar’s Rakhine State not to make the perilous journey to join him, was alarmed in September 2019 to learn that his two nephews, both primary school students, had gone missing from their village.
Three months later, he received a call from a human trafficker in Thailand, demanding 16,000 Malaysian ringgit ($3,900) for each child in order for them to complete the journey to Malaysia. The boys’ families paid the ransom, but only one of Rafiullah’s nephews made it to Kuala Lumpur. The other phoned Rafiullah’s relative to notify him he was being held at a detention centre in the state of Kelantan, in Malaysia’s northeast. The family has since been unable to reach him, nor have they received information about when he may be released.
Al Jazeera contacted UNHCR and was told that the agency does not comment publicly on individual cases, but that when the detention of vulnerable individuals, such as children, is brought to their attention, and the individuals are found to be in need of international protection, UNHCR will advocate with relevant government agencies for immediate access and their urgent release.
UNHCR faces a critical obstacle, however: Malaysia has refused the agency access to the country’s immigration detention centres since August 2019, leaving it unable to meet asylum seekers and refugees who may have been detained and assess their protection needs. “We are aware and concerned that there remain in detention a number of persons of concern, including vulnerable individuals, requiring our attention,” Thomas Albrecht, who heads UNHCR’s Kuala Lumpur office told Al Jazeera.
Nearly 180,000 refugees are registered with the agency in Malaysia, the vast majority from Myanmar, while thousands more await registration. But Malaysia, which is not a signatory to the UN Refugee Convention, does not have a legal framework for refugees, leaving them vulnerable to detention as undocumented migrants. Nearly 1,000 unaccompanied and separated refugee and asylum-seeking children were registered with UNHCR as of 2018.
Malaysia’s immigration laws also do not distinguish children from adults, leaving children subject to adult arrest and detention conditions and without access to education or play. Children under 12 are held with adult women, while boys over 13 are held with adult men, according to SUKA Society, a Malaysian child rights organisation.
SUHAKAM documented 118 deaths in immigration detention from 2015 to 2016, while in 2017, Reuters reported that former detainees, government agencies and rights groups had spoken of overcrowding, poor sanitation, limited access to nutritious food or healthcare, and beatings by camp guards. Noor Aziah, the children’s commissioner, told Al Jazeera that overcrowding, the lack of separate facilities for children and families, and the absence of provisions for education or play remain critical concerns.
A 2019 UN global study on children deprived of liberty found that detaining children can lead to significant physical and mental health issues. The UN Convention on the Rights of the Child, to which Malaysia is a party, prohibits detaining children for immigration reasons, and Malaysia’s Child Act of 2001 stipulates that a child’s best interests should be a priority.