MMN Statement for the 16th AFML
Enhancing the Effectiveness of Legal Pathways for Labour Migration in ASEAN
25-26 October 2023 – Indonesia
The Mekong Migration Network (MMN) is a sub-regional network of civil society organisations, including migrant support groups, grassroots movements and research institutes. Founded in 2003, we work together to promote and protect the rights of migrants in the Greater Mekong Sub-region. We are pleased that the theme of the 16th ASEAN Forum on Migrant Labour (AFML) focuses on enhancing the effectiveness of legal pathways for labour migration. This statement highlights some of the pressing issues facing migrants in accessing legal pathways, and presents policy recommendations based on MMN’s collaborative research and ongoing work.
Background and context
The shifting geopolitical landscape within ASEAN continues to highlight the precariousness of undocumented migration. Whether moving in search of safety or a sustainable livelihood, migrants face multiple risks and dangers without access to legal pathways that guarantee their rights. Through our work in both countries of origin and destination, MMN has identified various problems and policy gaps that discourage migrants from using formal pathways.
First, we consistently find that the fees and associated costs are prohibitively high. For example, migrants from Cambodia reported paying THB 20,000 (USD 550) to migrate to Thailand via MoU procedures, while those from Myanmar said that they paid upwards of THB 16,000 (USD 440). Given the low income of many migrant workers, it is extremely difficult, if not impossible, for them to use existing mechanisms without becoming indebted.
Second, the slow bureaucratic nature of existing channels, coupled with difficulties obtaining passports and other documentation, impedes access. In many countries of origin, it is extremely difficult to secure all requisite documentation without paying unofficial third parties. A Cambodian migrant worker interviewed by MMN summed up the situation thus: “Coming to work in Thailand through the MoU process was such a complicated process, it required too much paperwork and was even more expensive than paying a broker”.
Third, many legal pathways impose unreasonable conditions on migrants. Problematic examples include restrictions on changing employers, denying social protection to informal sector workers, prohibitions on forming trade unions, and denying family reunification. Moreover, migrants can be discouraged by the policies of countries of origin, such as the imposition of double taxation and forced remittances.
Fourth, MMN has consistently found that migrants using legal pathways do not necessarily receive better protection than those who use irregular channels. This is often due to a lack of enforcement, as action is not routinely taken against unscrupulous employers who pay below the minimum wage and/or pocket the social security contributions of their migrant employees.
Finally, the large number of migrants in irregular situations remain particularly vulnerable to exploitation as they are reluctant to approach the authorities for redress.
The following recommendations to governments of ASEAN Member States aim to encourage more migrants to use formal pathways:
Improving labour migration programmes in ASEAN
- Simplify existing legal pathways and minimise the cost.
- Ensure that all migrants using formal channels, regardless of employment sector, can access social protection schemes.
- Ensure that labour migration schemes conform with ILO Conventions 87 and 98 by guaranteeing the right to form and join trade unions.
- Reform legal pathways, in line with ILO Convention 143, to facilitate family reunion with dependent spouse and children.
- Conduct regular workplace inspections to ensure relevant labour law is observed.
Ensuring legal migration pathways that are inclusive and responsive to the labour market
- Allow migrant workers using legal pathways greater flexibility to change jobs within the labour market.
- Implement policies that allow undocumented migrants to regularise their status and access social protection. Increasing the size of the formal labour force, is likely to raise additional tax revenues, increase productivity, and counter problems associated with an aging population. Pathways to regularisation should thus be considered, alongside enhancing legal pathways for new migrants.
 For discussion see, MMN, “Social Protection Across Borders: Roles of Countries of Origin in Protecting Migrants Rights”, September 2019, p. 34 and pp. 67-68, accessible at https://mekongmigration.org/wp-content/uploads/2019/09/Book_Social-Protection-Across-Borders_for-Web.pdf.
 MMN, “Safe from the Start: The Roles of Countries of Origin in Protecting Migrants”, July 2017, p 30, accessible at https://mekongmigration.org/wp-content/uploads/2020/06/Safe-from-the-Start_English-1.pdf.
 See MMN, “Surviving the Pandemic: To Stay or Go? A Study into the Decision-making of Mekong Migrants”, September 2021, p. 19, accessible at https://mekongmigration.org/wp-content/uploads/2021/11/Full-Report-Surviving-the-Pandemic.pdf.
 See MMN, “Permanently Temporary: Examining the Impact of Social Exclusion on Mekong Migrants”, 2015, p. 13, accessible at https://mekongmigration.org/wp-content/uploads/2020/06/Permanently-Temporary-Eng-mmn-printed-version.pdf.
 See, the Freedom of Association and Right to Organization Convention, 1948 (No. 87) and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98), which prohibit discrimination on the basis of nationality or irregularity of status regarding both the membership in workers’ organizations and in establishing a trade union.
 See Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143).