The migrant experience is not monolithic. There are gradients of class, gender, sexuality, race, nationality, skin colour and dis/ability that influence how individual migrants are perceived, the policies that are imposed upon them and the choices migrants are allowed to make.
This explainer focuses on the experiences of migrants in Peninsular Malaysia, addressing some common myths and misperceptions about migrants here. It spotlights some of the motivations or driving forces for migrants to Malaysia; explains the policies that define the kind of work they can engage in; and discusses the laws and practices that shape the spaces migrants can inhabit. It examines their struggles to access justice and their lived experiences in Malaysia.
Who are “migrant workers”?
The United Nations International Convention on the Protection of the Rights of all Migrant Workers and Members of their Families defines a “migrant worker” as “a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national”. While that broad category is technically applicable in Malaysia, in common parlance, policies, media and cultural representations, the term “migrant workers” in Malaysia (also referred to as “foreign workers”) is often differentiated from “expatriates”, with the former employed primarily in low-paid, labour-intensive sectors, such as construction, manufacturing, agriculture, services or domestic work.
“Migrant workers” are also hired through a different process than “expats”, and are issued documents known as Pas Lawatan (Kerja Sementera), which translates to Visit Pass (Temporary Employment), or VP(TE). These documents come with no provision to bring dependants (as opposed to an Employment Pass or a Professional Visit Pass which both allow dependants), and are by no means a pathway to permanent residence in Malaysia. There are nuances and critical overlaps in the experiences of all non-citizens in Malaysia, especially around challenges in accessing rights that must be explored.
This explainer will focus on migrant workers hired under the VP(TE) scheme.
Migrant workers can only be hired from a list of 15 specific countries with which Malaysia has bilateral labour agreements. Most of the countries are in Southeast Asia and South Asia. According to the Immigration Department, in 2019, most migrants from Asean countries living in Malaysia came from Indonesia, followed by Myanmar and the Philippines.
Migrants can only work in specific sectors that have been predetermined by the government—the restrictions are also defined along gender lines. For example, Indonesian female migrants can be employed in all sectors, whereas Indonesian male migrants are prohibited from working in manufacturing; Indian male migrants can work in construction but only doing “high-tension cable work”; Filipina women can only be hired as domestic workers.
These distinctions are not intuitive, and add layers of complexity for both migrant workers and employers as they navigate the system (often with migrants bearing the brunt of the punishment for “crossing these lines”).
Migrants are also just people—bearing with them all the richness, complexities, joys, desires, histories, knowledge, abilities and challenges that all persons have. It is worth stating, as policies and practices can often flatten them into functions of their job. We see this in the perception of migrants as being “uneducated”, when in fact many hold a wealth of knowledge from sites of formal and informal, cultural and historical, and practical and academic learning; we see this in the denial of familial relationships, the cancellation of a work visa if a migrant woman becomes pregnant, the scrutiny of their existence in public spaces during holidays (a trend found not just in Malaysia), and in many other manifestations.
Why do migrant workers come to Malaysia?
The reasons for migration are both complex and incredibly simple. Complex because there is no one fixed reason why people migrate—there are historical, political, ecological, familial, personal and economic dynamics at play. The “choice” to migrate therefore often exists within restrictive and pervasive conditions beyond the individual’s control. For example, “labour export policies”, phrasing used by governments that is often contested by human rights activists, as individuals are not commodities to be exported, form a core part of a country’s economy that “pushes” citizens to seek work abroad. The climate crisis may create conditions that make farming untenable, leaving farmers with little choice but to migrate to seek livelihoods. Conflict fractures communities and disrupts economies, rendering many citizens without work in their home countries.
People migrate for work because they seek better paying jobs, diverse experiences, more personal autonomy or to break away from familial or cultural obligations; because of the experiences by family, friends and neighbours who have migrated; because they hope they can save up enough to start businesses or send their children to school. Often, the experiences may not line up with the reality, especially when many are given false promises by recruitment agents of lucrative jobs in distant lands.
“Migrants are here because we have recruited them”
An estimated 20% to 30% of Malaysia’s labour force is made up of migrant workers, including undocumented workers. Migrant workers are regulated primarily by the Ministry of Home Affairs (MOHA), with the Ministry of Human Resources (MOHR) playing a secondary role. MOHA imposes a quota on the number of migrants who can be recruited to work in a particular sector per year. The government also signs memoranda of understanding with governments for the recruitment of migrants over a period time.
For example, in 2016, Malaysia signed an MOU with Bangladesh to recruit 1.5 million migrants over a period of three years. The logic therefore is that migrants are actively brought in to fill labour shortages and to complement the various jobs that drive the Malaysian economy. Advocates, however, have long called for MOHR to play a lead role in the recruitment of migrant workers, since that ministry is better placed to determine labour requirements and protect labour rights. This seeming mismatch is relevant to understanding how migrants are perceived in Malaysia—both necessary (for the economy) and an undefined “security threat”. The lack of a comprehensive migrant labour policy, and different perspectives and policies between MoHA and MoHR shapes the ad hoc policies that govern migration, creating gaps in the system that foster criminalisation and exploitation, and often render migrants undocumented.
How do migrants become undocumented?
“Recruitment agents, profit, complexity, misinformation, confusion”
The business of recruiting migrants is highly profitable, and often consists of many actors in a long chain between point of contact with the migrant in their home country to arrival in Malaysia. The industry is also poorly regulated, making it ripe for scams, cheating and misinformation. Many migrants, for example, are recruited under “plantation visas” but then work, or are made to work, as security guards or construction workers. Working in a sector or with an employer other than the one designated on your work permit renders you undocumented, even if the permit is otherwise valid. Documents provided are also often in English or Bahasa Malaysia, making it difficult for migrants who speak other languages to understand or verify them before arriving in Malaysia.
In some instances, migrants are told that they are able to convert their tourist visas into work visas upon arrival in Malaysia, a practice that is possible in many countries, and therefore believable. Malaysia, however, does not allow this practice. Having made many sacrifices, often selling family land or incurring large amounts of debt in order to migrate, some choose to risk working with an irregular status in order to recuperate financial losses.
“Renewals are expensive, rejections are high, businesses want workers”
In 2016, the president of the Small and Medium Enterprises (SME) Association of Malaysia, Michael Kang, said that 70 to 80 percent of SMEs hired undocumented workers “because the cost of rehiring foreign workers is too high and the procedures too rigid”. The onus to renew documents lies with the employer, but migrants are primarily the ones criminalised for being undocumented. That imbalance of risk incentivises some employers not to renew the work permit of their workers, in order to avoid the high fees, and especially if they are unable to meet the work conditions or requirements by the Ministry to hire foreign workers.
“Abused, unpaid, overworked”
Migrants who leave their employers—either to seek other work, or escape abusive and unjust conditions—are rendered undocumented. The VP(TE) system ties the migrant worker to the employer, often leaving them with the choice to either endure the violence and stay documented, or leave and become undocumented.
While it is not impossible to find legal avenues to seek justice, it is difficult. Being undocumented puts individuals at risk for arrest or detention while they seek redress. Migrants need a “special pass” to remain in the country while pursuing a case, and may not work during this process which can take months or years.
“Boss pegang pasport” (passport is held by the employer)
Despite it being prohibited by the Passport Act of 1966, many employers and agents retain the passports of migrant workers, and do so often without consequences as this provision of the Passport Act is rarely enforced. Migrants stopped by law enforcement officials or caught up in immigration raids, and who do not have their passports on them are arrested and detained as “undocumented” persons. While it is technically possible for their employer to then produce their documents, there are no clear and systematic processes in place post-arrest to facilitate this. Migrants often state that they are denied a right to make a phone call upon arrest, and that law enforcement officials often communicate in Bahasa Malaysia, making it difficult for them to assert or understand their rights.
Employers sometimes hold the passports of migrants to prevent them from demanding their wages or better working conditions, or from absconding—the threat of arrest and detention is often enough to keep migrants in hostile work environments. In 2005, for example, Mangal Bahadur Gurung, a Nepali migrant who migrated lawfully and had valid work documents, was arrested, jailed for 10 months and whipped: the authorities did not believe that he was documented, and his employer kept his documents and chose not to assist him.
“Refugees are ‘undocumented’; trafficked persons are ‘undocumented’; stateless persons are ‘undocumented”
Technically, refugees fit within the broad landscape of individuals who migrate. A fundamental difference, however, is that refugees are fleeing a “well-founded fear of persecution” and are unable to return to their home country because of serious threats to their life or freedom. Under international human rights law, a refugee cannot be punished for how they entered a country to seek asylum. Refugees are often fleeing situations of persecution, emergencies and various forms of discrimination, which can make it difficult to seek lawful and safe pathways out. Often, individuals seeking asylum are also denied proper documents that would make travel possible. Rohingya, for example, are not issued national identification cards by the Myanmar government, which thus makes applying for a passport impossible.
While the United Nations High Commissioner for Refugees (UNHCR) processes asylum claims and issues UNHCR documents through an MOU with the Malaysian government, the concept of the “refugee” does not exist officially under Malaysian law. Refugees, therefore, are seen and treated as undocumented migrants. Deporting refugees, however, is a serious violation of the principle of non-refoulement, which is considered international customary law regardless of whether a country has a refugee policy. Without legal protection by the Malaysian government, without access to welfare benefits, and with resettlement options globally very limited, refugees remain in a precarious situation, with ad hoc and arbitrary policies affecting whether they can work, where they can work, if they are arrested and if they are released.
Trafficking victims are also often undocumented migrants.
The Protocol against the Smuggling of Migrants by Land, Air and Sea, supplementing the UN Convention against Transnational Organized Crime defines trafficking in persons as “the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation”.
This system of exploitation, coercion, deception and abuse of power renders migrants undocumented. Despite the 2007 Anti-Trafficking in Persons and Smuggling of Migrants (ATIPSOM) Act, law enforcement officials often do not proactively investigate cases of trafficking, and justice for victims is often out of reach. Survivors who are arrested are therefore classified and punished as undocumented migrants.
Undocumented people are also sometimes stateless people, that is individuals who are not considered nationals of any country. One can be born into statelessness, or become stateless. UNHCR estimates that there are at least 10,000 stateless people in West Malaysia, but there are no clear estimates of the stateless population in East Malaysia. While there is an overlap between individuals who are both refugees and stateless (the Rohingya, for example), a significant number of stateless individuals in West Malaysia are part of Malaysian Indian families. Lack of enforcement in nationality laws, challenges in verifying identification documents, and various barriers to birth registration and citizenship claims have made individuals stateless.
Malaysia also does not have screening procedures in immigration detention centres to determine vulnerabilities. There are no legal opportunities for individuals to seek asylum in Malaysia. Lawyers and civil society organisations are also often denied access to immigration detention centres, while UNHCR has very limited access (and has been completely denied access since August 2019), which is at the government’s discretion. This lack of access and the absence of a provision in the Immigration Act to provide exceptions for people in need means that refugees, trafficking victims, stateless people, migrants who are victims of injustice or violence, children and other vulnerable individuals remain classified as “undocumented migrants” and are punished as such.
Why can’t migrants just become documented?
“It’s virtually impossible”
It is incredibly easy for a documented migrant to become undocumented (for the reasons listed above), but it is virtually impossible to regularise one’s status under existing laws. As explained above, the strict criminalisation of migrants for their undocumented status also means there is often little room for migrants to access redress or justice. For migrants who become undocumented due to trafficking, forced labour or other human rights violations, the best-case scenario is often for them to recover some unpaid wages before being deported. Undocumented migrants can be detained for years before this happens.
“Amnesty programmes—success and fraud”
Malaysia has had numerous iterations of “amnesty” programmes (6P, 3+1, B4G, etc.), which were meant to facilitate the regularisation of status for undocumented migrants who wanted to continue working in Malaysia (under specific conditions), or to return to their home country with limited penalties. There have been reports, however, of hundreds of thousands of migrants who paid large sums of money to be regularised, yet were left without documents, with some estimates that out of 700,000 migrants who paid sums of about RM5,000 (about US$1,200) each into these rehiring programmes, half a million migrants never received their documents.
“Love, sex, relationships”
Migrants are people. They have relationships, they get pregnant, they have families. The system, however, does not allow migrants to exercise these basic human rights. Migrant women who become pregnant have their work permits cancelled, and must either risk being undocumented, or are deported. Without a pathway to permanent residency or citizenship, migrants who have formed relationships or have children in Malaysia may choose to remain undocumented to keep their family intact. For migrants who have been in Malaysia for many years, who have developed particular lifestyles, found spaces to belong and established relationships with local communities and to the country, maintaining these connections may outweigh the risks that come with being undocumented.
“More choice, a sense of agency, autonomy”
For some migrants, despite the grave risks of arrest, detention, whipping and deportation, being undocumented paradoxically allows for a greater sense of freedom, choice and agency. Being untethered to one employer, leaving abusive work conditions, working outside the restrictions of particular sectors, being able to negotiate for better wages and conditions because of their skills honed from years of experience—all of this may mean that some choose to work in Malaysia, even if their visa or paperwork has expired.
What do we need to do about migration in Malaysia?
- Establish a national, comprehensive policy on labour migration that respects the dignity and rights of migrant workers.
- Enforce the Passport Act, Employment Act and all relevant laws to prevent the exploitation of migrants.
- Protect and uphold the right to redress and to access justice for all people, regardless of immigration status.
- Grant refugees the right to stay and work lawfully.
- Proactively work to address the systems that facilitate trafficking in persons and forced labour.
- Address the holistic rights and needs of migrant workers, including reproductive rights and the right to families.
- Stop the criminalisation of migrants, including ceasing mass raids, and treating missing or expired immigration documents as administrative matters and not criminal acts that are punishable by detention and whipping.
- Use language that upholds the humanity of migrants (documented or undocumented), and not the stigma-laden terms “legal” or “illegal”, the latter of which defines the person’s existence (instead of their behaviour or paperwork) as illegal and justifies harms or discrimination committed against them.
- Towards A Comprehensive National Policy on Labour Migration for Malaysia (Right to Redress Coalition, March 2019)
- Trapped: The Exploitation of Migrant Workers in Malaysia (Amnesty International, 2010)
- Malaysia: Estimating the Number of Foreign Workers (World Bank, 2019)
- Forced Labour, Human Trafficking and Mental Health: The Experiences of Refugees and Asylum Seekers in Malaysia (Health Equity Initiatives, 2010)