Undocumented migrant workers: Hidden and helpless in ASEAN

PART 1: Despite ASEAN’s decade-long intention to protect migrant workers in the region, nothing has been done for the undocumented labor migrants, who continue to endure hardships in silence

BY CAMILLE ELEMIA, Rappler, Feb 12, 2017

Part 1 of 3

KUALA LUMPUR, Malaysia – Filipina domestic helpers Erika*, 37, and Fe*, 34, face their daily lives with uncertainty, hanging on to daily prayers in the hope that the day would not be the fateful day when immigration officers find them.

Both ran away from their employers – the most common reason why workers turn into undocumented labor migrants in Malaysia, one of the top receiving countries of migrant workers in the Association of Southeast Asian Nations (ASEAN) region.

But a decade since leaders of the 10-member ASEAN signed the Declaration on the Protection and Promotion of the Rights of Migrant Workers, a deadlock on the creation of an ASEAN treaty to protect them remains. Neither is there final agreement on whether or not undocumented workers should be covered.

These hidden workers, like their documented counterparts, contribute to the economies and societies of their host governments.

Erika and Fe are just two among the estimated 5 million undocumented labor migrants in Malaysia, according to non-governmental oranization Tenaganita. The Philippines is one of the top sending nations in the region, besides Indonesia.

For more than a year, the two were not given days off and correct salaries by their respective employers. Add to that the enormity of their tasks, which were not indicated in their original contracts. (READ: Migrant workers: Undocumented, unprotected)

Contract substitution

The minimum salary set by the Philippine Overseas Labor Office for Filipino domestic workers in Malaysia is $400 (at least 1,700 Malaysian ringgit or P19,000). But more often than not, Malaysian employment agencies don’t follow this.

They end up amending the contract between the employer and the worker. Both Erika and Fe received only 1,000 ringgit monthly with a heavier than promised workload.

“They do not comply with the required days off here. If you’re a domestic worker here, the agency is the one that tells the employer not to give you any break. I had no day off for one- and-a-half years. I was not allowed to use cellphones and my passport was withheld from me,” Erika said in Filipino.

“I was hired as a caregiver. But, it turned out, I would also clean 3 big houses and 7 cars. They did not give me any day off even if it was in my contract,” Fe said.

Philippine labor attaché in Kuala Lumpur Elizabeth Estrada admitted that “contract substitution” is indeed one of the major problems faced by Overseas Filipino Workers, prompting documented workers to run away from their employers, turning them into illegal workers.

But the case is not just limited to Filipinos, as it is the prevailing situation of migrant workers coming from other neighboring countries, said Glorene Das, executive director of Tenaganita, a Malaysia-based NGO pushing for migrant workers’ rights.

All eyes are now on the Philippines, as it hosts the 50th year of ASEAN, which also coincides with the 10th year of the 2007 Declaration. It was signed on Philippine soil when the country last hosted the conference.

The case of Fe*

An excessive workload and stress took a toll on the health of Fe, a single mother of 3 boys. For 6 months, her monthly period did not stop, beginning from her first week with her employers.

Her employers sent her to a gynecologist for a check up. It turned out, she said, she had hormonal issues and an infection. Her doctor told her to get bed rest for one whole week but her employers would not hear of it.

“When the results came out, the doctor told me, in front of my boss, to just rest first. He told my boss: ‘Ma’am, allow her to rest for one week, let her sleep and eat while she’s still recovering,'” said Fe, recalling her doctor’s order.

“Since I didn’t want my employer to get mad at me, I immediately told the doctor that I was taking care of an old patient who could not walk and stand. He told me: ‘What do you want, to go back to the Philippines in a coffin?'”

“That’s because the doctor, and I myself, saw that I looked pale. My body lacked vitamins because they only gave me leftover food. If there’s chicken, they only gave me the bones. If there’s fish, they only gave me the head. I told myself: What kind of food is this? It’s like food for pigs.”

Fe ended up running away from her employer after she was still forced to work, contrary to her doctor’s advice.

“Why is it that just because they are locals, they can do what they want to us? That is why I cannot blame other runaway workers because I myself know and have experienced abuses.”

Toward legalization

Employers have two options in this kind of situation: they can either immediately call authorities to cancel the working visa of the worker or just let it expire. It is, after all, renewed yearly.

Fe was fortunate enough that her employer chose the latter, giving her ample time to get a new Philippine passport. Other workers are not as lucky.

For any migrant worker in Malaysia to be considered legal, he or she has to get a working visa and a contract besides a passport. But for undocumented workers, the process is difficult. Some do not even have their passports, as their employers withhold it from them.

Recruitment agencies take advantage of the situation, asking for payment of at least 7,000 MYR (at least P78,500) from poor undocumented workers. Fake agencies also swindle them.

Fe, who now works as a caregiver, said she is now saving money to “legalize” her stay in the country by March. Easier said than done, she admitted, as her family’s house in Surigao province, in the southern Philippine island of Mindanao, was destroyed by a recent typhoon.

“I am afraid of being tricked by agents because it is difficult to earn money. But if it is the will of God, I will slowly do it, hopefully by March. I will just finish our roof back home because my mother and children are sleeping in the kitchen in the meantime,” she said.

Undocumented parents, stateless children

Just like Fe, Erika is a single mother of 3 in the Philippines. She also left her employer’s home after a year-and-a-half of working without any day off and with a salary of just 1,000 MYR (P11,000) a month.

“They will ask you to sign a blank paper. We had an original contract approved by the embassy, saying our salary is $400, but the agency does not follow it. Maybe they are getting the money meant for us. The employers do not give us days off,” Erika said.

Little did she know that her uphill battle would become even more difficult.

She left her employer in 2014 without any passport or proof of identity. She said her employer immediately cancelled her working permit.

Erika stayed with a Filipina friend and worked odd jobs. There, she met an Indian co-worker. As if it was not difficult enough for her, Erika and her boyfriend faced a new challenge when they had a baby in March 2016.

She had to borrow 3,500 MYR from her boyfriend’s employer to pay for a normal delivery in a private hospital. Giving birth in a public hospital was never an option, as authorities would bring her to immigration officials.

She could not register her son with the Philippine embassy, as she had no passport as proof of her identity. The embassy also supposedly told her to first register her son with the Malaysian government, which she could not do as an illegal worker.

She could not register him with the Indian embassy either, even if her boyfriend was a legal migrant worker, for the same reasons. Besides, they weren’t married.

Erika, in short, has since passed on her undocumented status to her now 11-month-old son. The baby remains stateless to date, having no nationality or citizenship.

No rights, privileges

Her baby has no birth certificate and passport. He has not been baptized into any religion for fear it might lead to her arrest.

All Erika has is the draft birth registration form given by the Malaysian hospital, which is useless because she could not register her son in JPN, or Malaysia’s equivalent of the Philippines’ National Statistics Office.

“When I was pregnant, I thought of putting him up for adoption because I am undocumented and I know then I would not be able to register him. But when I saw him, I could not take it. I pity my child that is why I want him to be documented and to be able to go back to the Philippines,” she said.

The problems do not end there. Undocumented children in the country grow up without any rights and privileges, effectively continuing the vicious cycle.

“If you do not have a permit, your child won’t have the right to study here, won’t have the right to public healthcare,” she said.

“These children grow up without any rights and education. They end up getting trafficked or being the traffickers themselves,” Das said.

At present, the baby has had only two vaccine shots. Erika said she could no longer afford it. She has to choose between her son’s milk or his vaccine.

“He only had two injections. I could no longer afford it because each costs 550MYR ro 650MYR (P6,000 to P7,000). I don’t get it why it is so expensive, in the Philippines it’s just free. But here, since we don’t have any permit, we cannot go to public hospitals. We need to go to private clinics all the time,” she added.

Big money in trading people

For the longest time, intra-ASEAN migration has been phenomenal. In 2012, it generated close to US$40 billion in remittances for the whole region.

But high remittances boost greater migration, encouraging more middlemen, like recruitment agencies, to trade in people.

Unfortunately, not all migrant laborers go through legal channels. It is complicated, lengthy, and expensive. Most people, like Erika and Fe, enter legally but end up being undocumented due to the middlemen’s abuse.

“It’s through the process of placement, employment they become undocumented. Almost all of our cases, domestic workers run away from abusive situations. A migrant worker stops work because she is not paid what is promised. The employer quickly makes a police report, which turns the migrant worker undocumented,” said Das.

As the biggest recipient of intra-Asean migrant workers, Das said Malaysia should have a coherent and comprehensive policy to support and protect them and local industries that depend on them, such as plantation and manufacturing.

Some of them are highly dependent on a low-wage economy or cheap labor.

“Locals do not want to do the 3D jobs – dirty, dangerous, and demeaning. Malaysia, as a host country, needs to have proper comprehensive policy to manage migration,” Das said, pointing out that migration is handled by the Ministry of Home Affairs but labor is under the jurisdiction of the Ministry of Human Resources.

“Policies are dictated by different ministers, without anything black and white, and the directive is not being followed through. There has to be one set of comprehensive policy to manage migration, from recruitment and placement to redress, repatriation, reintegration,” she added.

Das said the continuing lack of protection of undocumented workers is all about money. Trading people, both legally and illegally, is a lucrative business for the recruitment agencies, government offices, and even politicians.

Cashing in

Fe and Erika shared how the police get money, ranging from 500MYR to 2,000MYR (P5,600 to P23,000) in exchange for not arresting them. Since policemen in their areas already know their faces, they would keep on extorting money from them.

“This is a money-making business. The politicians themselves own agencies and become employers. When you have stayed in Malaysia 10 years, 5 years, you know how the system works: there’s no system. Corruption is embedded in the system. Why would they want to protect them when they are earning from them, from cheating them?” she said.

According to Malaysia’s Bar Council member Dato’ M Ramachelvam, another reason is that the employers and agencies that hire undocumented people go scot-free, both in the receiving and sending countries.

“At the same time we have receiving countries like Malaysia that allow migrants with no proper documents to enter the country and stay on to work. While these undocumented migrants may be detained, we do not see much action taken against the employers and agents who exploit these workers. Hence the demand for undocumented workers continues to escalate, especially when the recruitment fees that employers pay for documented workers increase,” said Ramachelvam, chairman of the council’s Migrants, Refugees and Immigrant Affairs committee.

Rappler reached out to the Ministry of Human Resources, Ministry of Home Affairs, as well as the ASEAN-Malaysia Secretariat but they all declined interview requests.

ASEAN’s silence on undocumented workers

Despite the contribution of migrant workers, undocumented included, there is still no clear regional stand on how to protect their rights. In fact, the 2007 ASEAN Cebu Declaration has no inclusive policy on undocumented workers.

ASEAN, Das said, has been focusing too long on investments and the business climate that it has put the welfare of migrant workers, the people who comprise and help economies, in the backseat.

The 2007 Declaration only has the following non-inclusive provisions:

“The receiving states and the sending states shall, for humanitarian reasons, closely cooperate to resolve the cases of migrant workers who, through no fault of their own, have subsequently become undocumented.”

“Nothing in the present Declaration shall be interpreted as implying the regularization of the situation of migrant workers who are undocumented.”

The issue of undocumented workers and labor migrants’ families is among the 3 main contentious issues that have delayed the creation of a legally binding instrument to implement the 2007 Declaration.

Another issue is the legal nature of the instrument – whether it would be legally binding or just a mere guideline. Receiving countries such as Malaysia and Singapore want undocumented workers and migrant workers’ families excluded from protection. At the same time, they have been pushing for a non-binding instrument.

“It’s hard to get full protection of migrant workers, how much more she, who is undocumented? Because of that status, they are not able to register a child in any mission and the baby becomes stateless. And there are no laws to protect the families of migrants. Even if you look at declaration,” Das said.

“And the other reason Malaysia or Singapore didn’t want to sign is because, [they think] why should we care for the families of migrants? Caring for migrants is already such a big deal, and now you’re heading for family? They’re not going to,” Das added,

As for Fe and Erika, legalizing their stay in Malaysia is their main objective, but not until they save at least 7,000 MYR (P78,000), which they will need to pay their agencies to secure an under-the-table working permit and, sometimes, a passport.

“I don’t want to go home yet because I don’t want to see them suffer, too. It’s better that I just suffer here alone than for us to be together but without any food to eat. No one will help us, I told my family,” Fe said.

As for undocumented workers – left with limited options and a system encouraging the status quo – they will continue to endure abuse and discrimination, which to this day, for many of them, is part and parcel of earning a living for their families. – Rappler.com