Impact Of Illegal Migrant Workers In Malaysia

Abstract

Malaysia is a net importer of migrant workers. It exports highly-skilled labor on a long-term or permanent basis and imports low to medium-skilled contract migrant workers. There are also foreign workers who enters into the country using fake permits and documents. The issue of illegal migrant workers have been increasing drastically in Malaysia. According to the Human Resources Ministry, there are some 2.1 million registered migrant workers what we call as legal foreign workers in Malaysia. However there are number of overstaying illegal foreigners is even larger, probably around 3 million. The Malaysian Employers Federation (MEF) estimate is even more alarming putting the total number of legal and illegal foreign workers at 6 million. This issue have been addressed by government in the Immigration Act 1959/63. Living and staying in Malaysia without a valid pass or permit is an criminal offence under section 6(3) of the immigration act and it can be punishable by a fine of not more than RM10000 or imprisonment not exceeding 5 years or both and shall also be liable to whipping of not more than 6 strokes. The main objective of this paper is to quantify the impact of illegal foreign labor in Malaysia in order to better identify foreign human resource needs going forward. This article makes a number of recommendation including the need for further development on reducing the employment of foreign workers. This research is adopted doctrinal legal analysis in which the primary source will be the Immigration Act 1959/63. On the secondary sources, the articles and journal wrote by local and international writers was referred. The Home Ministry should develop a comprehensive and holistic enforcement plan to tackle the issue of illegal immigrants in the country.

Introduction

A foreign laborer is an individual who utilized in a nation on a brief premise to which the individual isn't a resident. Foreign workers are utilized by the organization, recruitment office or hired while they were employment looking for in the nation to enhance the workforce of the nation for a restricted term or to give aptitudes on a legally binding premise that the nation search for. Those workers are including ability and incompetent, legitimate and illicit specialist. Malaysia known to be one of the biggest shipper of foreign workers in Southeast Asia region. Foreign workers come to Malaysia from numerous nations predominantly Indonesia, Bangladesh, Vietnam, Nepal, India, Philippines, China and furthermore Myanmar. Foreign work in Malaysia has been as of late evaluated to run between 2 million to 4 million individuals and their regional dispersion is imbalanced, for Peninsular Malaysia. Ongoing figures demonstrate that there are about 1.8 million enlisted or standard foreign workers, and the rest which is around one million to two million are unregistered workers.

Foreign workers generally migrates to another nation because of poverty, shaky economic condition of the nation, poor wages, absence of openings for work and numerous different reasons. The greater part of the migrant workers in Malaysia accomplished low training not at all like different economies like Australia, Singapore and Hong Kong SAR have purposefully wanted to draw in increasingly gifted migrants. Other than that Malaysians are never again eager to perform occupations that known as 3-D (messy, troublesome and risky) so as to fill in the absence of work power in development, horticulture/estates, fabricating and mechanical segments, numerous foreign workers are acquired. Other than that, the advancement and improvement in training framework made relative need for incompetent workers required in low ability divisions as referenced previously. This has prompts the expansion of interest for foreign workers and it draws in both legitimate and illicit foreign workers to go into the nation.

The quantities of undocumented foreign workers who either entered Malaysia without appropriate permits or outstayed their current visas are expanding definitely. The nearness of an enormous number of undocumented foreign workers can convolute numerous strategy activities, for example, the execution of the lowest pay permitted by law laws just as numerous movement arrangements, for example, division explicit visa portions and imposes. The well known observation was that foreign workers were dislodging nearby untalented workers and stifling wages and expectations for everyday comforts. The Malaysian joblessness and the work power support rates are the other two significant work advertise factors possibly affected by movement. (Lee Hwok-Aun and Khor Yu Leng, 2018)

However the employment of foreign workers in the agriculture, mining, manufacturing and services sector does not necessarily impact the local employment rate as Malaysians are no longer willing to perform the job and demand high wages compared to foreign workers. In fact, some companies prefer to hire foreign workers because they are willing to accept lower pay from the locals especially in the lower skilled jobs.

Besides that illegal foreign workers also bring distortion to the Malaysian economy. (Athreya Murugasu, Chai Yi Wei, 2018) Employing migrant workers contributes to a “significant outflow of capital”. Migrant workers have been reported to send remittances home using informal channels, and hence the actual amount is speculated to be much higher. Since the rate of illegal foreign workers in 1 out of 3 % of the labor force the outflow of the capital relatively high therefore it effects the Malaysian economy. In order to get a Malaysian work permit the foreign nationals must be not less than 18 years old and not more than 45 years old and the work permits are usually issued for periods between 6 months to 5 years. (Immigration Act 1959/63) Since the fees that need to be paid to the immigration department for the work permit are relatively high, the illegal foreign workers will find a cheaper alternative by creating fake documents and works in the country without valid work permit. Besides that, the illegal foreign workers also believed to be using social services without paying for them. The supported or free use of public facilities such as health, education and infrastructure has been a source of concern towards the Malaysian economy.

Illegal foreign workers can impact comprehensive crime rates by changing the behavior of Malaysians. The presence of illegal foreign workers will increase the crime rate. Many of those crimes such as robbery, breaking in, murder, or snatch theft are done by foreigners especially the workers. They become construction workers in the day & could do something else at night. For the sake of minimizing costs, firms blindly employing them without knowing their background. They could be criminals fled their own country. This is the reason why a firm should employ foreign workers with proper documents and avoid undocumented workers for the safety of the society and the country. They can be a threat for national security and the country will no longer be safe and harmony for the locals as well as others. There are many crimes happening in Malaysia by foreign workers. For example, the recent murder case of grab driver in Kota Kinabalu which committed by foreign workers and he will be punished under section 302 of the Malaysian penal code. Even though the crime rates of foreigners are not relatively high, but it is still concerning the public safety and this can be reduced by having limited foreign workers that enters into the country legally. Although the Malaysian government have implemented the Immigration act, the number of illegal foreign workers are still increasing in our country and the exact rate of illegal immigrant workers are not identifiable as it’s hard to keep track or monitor each and every foreign workers. This paper will highlight the impact of illegal foreign workers and further development on reducing employment of foreign workers.

Historical Migrant Labours in Flow

In 1970-1985, The wide economic and statistic contrast among Malaysia and its prompt neighbors caused the subsequent age cross outskirt developments of work. Basic changes and work advertise division the rose in the mid 1970s spurred the utilization of foreign work. Foreign work was gotten on a casual premise in little numbers to meet work deficiencies in the provincial agribusinesses parts. Given a moderately little populace base, continued development following quick industrialization and modernization of the economy prompted expanding reliance on foreign workers. Socio social ties additionally assumed a significant job in deciding the nature and degree of transient workers. The biggest number originated from Indonesia, a country with a long history of socio social and family ties with the nearby Malay populace. These connections together with the arrangement of informal communities throughout the years have diminished the exchange cost of relocation and have added to the continuous inflow of vagrant workers and their wards.

The second period of increment of foreign workers harmonized with the time of high and supported development that initiated in 1986. The economy developed at about 8.0 percent annum during 1988-1997, changing a circumstance of high unemployment in the mid1980s to full work by the mid 1990s with far reaching work and aptitude deficiencies and expanding compensation. Following a time of experimentation in dealing with the import of low talented vagrant workers, an extensive arrangement on contract transient workers was presented in 1991. A wide scope of approach instruments and measures were confined to limit and manage their import just as secure their rights. Be that as it may, under extreme work market weights and feeble authorization, these strategy instruments were just halfway compelling as reflected by the generally high number of sporadic transients, welcoming serious reactions on foreign work the board arrangements.

The third period of migrant workers inflows started with economic recuperation and the assistance of approach to contract foreign work. The inflow of migrant workers had continued yet at a much slower pace. The nearness of unpredictable migrants has likewise fallen with the absolution pursued by presentation of harsher punishments for the two managers and foreign workers under overhauled migration laws. There is additionally more prominent accentuation on abilities and preparing of foreign work. On the off chance that businesses could give proof that their foreign workers are gifted, they could expand their residency of work. There is likewise a pattern to differentiate the source nations for abroad workers.

Singapore’s System for Managing Foreign Workers

Our neighbor country Singapore also ranks as one of the countries with highest proportions of foreigners in its population and workforce. The foreign workers in Singapore are over one third of its workforce and over a quarter of its population in total. Over the years, the country developed a rather intricate system for managing the inflow of the foreigners and utilization of foreigners to increase its potentially diminishing population and work force (Elizabeth Ruppert).Nearly half of the Singapore’s foreign workers can be found in the service, manufacturing and construction sectors just like Malaysia. Compared to the local residents, foreigners are more likely to work in less skilled works.

As Malaysia and Singapore shares similar history and culture, Malaysia has traditionally been the primary source of migrant workers in Singapore. Singapore tends to attract more skilled foreign workers compared to Malaysia where the workforce have expanded to other countries in the Southeast Asia, North and South Asia and also western countries. While there are illegal foreign workers in Singapore, the issue of illegal immigration is not as serious in Singapore as in some neighboring countries like Malaysia. The reason is that Singapore is a very small country with a relatively long coastline. Apprehensions of illegal workers can be made at border checkpoints or along the coastline. As the results of this factors, as well as a very strict enforcement by Singapore authorities, the number of illegal immigrants in Singapore has declined from than 10000 to 1800 in 2010. Comparing to Malaysia, it can be hard for the authorities to keep track and monitor every foreign workers that enters into the country as the Malaysia geographical region are much larger than Singapore. Singapore also has some problem with over-stayers which is usually foreign workers who entered country legally but fails to leave the country after the expiration of their permits. But the number of over-stayers also decreased. Illegal deployment which is also a common issue where the workers breach the conditions of social visit passes by working illegally.

In the early 1990s Singapore leaders warned of an over reliance on low unskilled foreign workers and its impact on Singapore’s economy and society. However since that time the number of foreigners in labor force have grown drastically. The regulatory framework for recruitment and use of foreign workforce in Singapore is governed by Immigration Act, The Employment of Foreign Manpower act and The Employment Agencies Act. These acts are to control the entry and exit of foreigners and refine the rights and obligations of employers and migrant workers and employment agencies involved in the recruitment of foreign workers.

Foreign Labor Managing Policies in Malaysia

Any workers who lives and stays in Malaysia without any valid pass or permit, it will be considered as offence under section 6(3) of the immigration act. Upon conviction, it is punishable by a fine of not more than rm10000 or imprisonment not exceeding 5 years or both and shall be liable for whipping of not more than 6 strokes. Section 55(B) AND 56(1) of the Immigration Act are applied to employers for harbouring illegal immigrants in the premises. A fine of not less than RM10, 000 but not more than RM50, 000 or imprisonment not exceeding 12 months or both for each illegal immigrant under his employ. A person who employs more than 5 illegal immigrants at the same time is liable to imprisonment of not less than 6 months but not more than 5 years and is subject to whipping of not more than 6 strokes. The recent movement of Malaysian government is that the Malaysia’s Human Resources Minister, M. Kulasegaran said that the government would reinstate the foreign workers replacement system to all sectors effective 1 July. This would allow employers to get a replacement for a foreign worker who had returned to his home country without having to go through a new application process. “The government believes this approach will not involve increasing the number of foreign workers, but instead retain the number of foreign workers which has been approved for employers before,” he said.

Comparing to Singapore, they have four different types of permits to control the quantity and quality of labor entering Singapore. Permits are different by skill levels, sending country, permit duration and sector of job. For example, a permit is granted to a specific firm at the request of the employer. The number of permits granted to employers is subject to a dependency ratio, which is defined as the maximum share of foreign workers in a firm’s total employment. This has given the Singapore authority the capacity to monitor and enforce it. There are four types of permits in Singapore which is work permit for unskilled worker, work permit for skilled workers, employment pass and entry and re-entry permit.

Unskilled workers who fall below a maximum salary cap equal to S$2,000 per month) are eligible for a work permit. Durations can last up to two years and are renewable up to 4 years. Employers are required to post S$5,000 security bond for each worker. Additional restrictions to discourage permanent settlement of unskilled foreign workers include limits to personal freedoms such as prohibiting reunion of workers’ dependents, marriage to a Singapore national and pregnancy. Skilled workers who fall below the same monthly salary cap (S$2,000) are eligible for work permits up to 3 years’ duration that are renewable up to a total of 10 years. For employment pass skilled workers with professional or tertiary qualifications can be hired with an employment pass if their compensation exceeds S$2,000 per month and valid for up to 5 years and are renewable. Lastly permanent residents, or skilled workers holding work permits or employment passes who are also eligible for permanent residence, can be issued an entry/re-entry permit that is valid for up to five years and renewable.

Recently Singapore’s Parliament officially gave the Ministry of Manpower (MOM) the go-ahead to crack down on illegal employment by passing new amendments to the Employment of Foreign Manpower Act (EFMA). Employers circumventing the EFMA’s regulations can now face swift financial penalties of up to S$20,000, and may even be exposed of their right to hire foreign workers.

In addition, those who set up shell companies in order to work around the mandated local-to-foreign worker ratio and other requirements can be fined up to S$6,000 and/or jailed for six months to two years. Other employment related offenses that will now be punishable include forging educational qualifications to meet work pass requirements, collecting money from foreign workers in return for giving them a job, and having ‘local phantom workers’ on payroll.

Judicial Approach in Illegal Foreign Workers Cases

In the case of Public Prosecutor (Immigration) v Ana Ak Ekang & Anor the appellant appealed against the session’s court decision on acquitting and discharging the respondents of two joints charges under the Immigration Act 1959/1963. The first charge, under s5B(1) of the act, accused the respondents of employing ten illegal Indonesian immigrants without a valid work pass at a café on the ground floor of a two story building whilst the second charge 55E(1), alleged that the respondents had allowed nine of the workers to enter and remain at the premises. The court held that, in respect of the first charge the prosecution had proved beyond reasonable doubt that both the respondents had common intention to employ the workers to work in the cafe. Although R1 owned the business at the cafe, the fact that R2 was also involved in the business was vividly revealed in the depositions of the workers where they referred to R2 as their employer. In respect of the second charge the evidence showed it was R2 who rented the whole premises and it was only he who had the care, control and management of the first floor of the premises where the workers were permitted to enter and remain. There was no evidence of R1's involvement. Hence the common intention element on the second charge was not proved beyond reasonable doubt.

In the case of Public Prosecutor v Sim Kay Chay The appellant was charged under s 55B of the Immigration Act 1959/1963 for employing two female Indonesian illegal immigrants, Jessy and Doni, without a valid work permit. The two had been charged and convicted by the court for an offence of contravening the immigration laws. Both the accused persons had served the sentence and had since been deported. However, only Dory's deposition was recorded in court prior to her deportation. The learned sessions court judge however, held that the deposition of Dory was inadmissible, pursuant to s 40 A(1) of the Act, because the prosecution did not adduce any evidence to show that there was an order for the removal of Dory from Malaysia made by the Director General of Immigration under S 32, 33 and 56(2) of the Act. Hence, the court had ruled that the prosecution had not established a prima facie case. Against the said decision, the appellant appealed to this court. The court held that, Section 40 A (1) of the Act per se did not prohibit any deposition lawfully made relating to an offence to be introduced in court as evidence. The decision of the learned sessions court judge pertaining to the admissibility of the deposition that could only be done with an order for her removal from Malaysia made by the Director General of Immigration under s32, 33 and 56(2) of the IA 1959/63, is not a matter which is expressly stated in the Immigration Act 1959/63. Further, deposition may also be made admissible, pursuant to s 32 (i) and (j) of Evidence Act 1950.

Recommendations

There are numbers of reason which can explain why illegal migrate workers should be reduced or prevent in Malaysia. First, government should improvise and enforce of existing biometric database system is ideal to keep the control on foreign workers in the country. Is should be made mandatory that all illegal foreign workers must have their fingerprint taken and stored by the immigration database for future reference. Thus also to make sure and avoid the group of illegal migrants do not re-enter or leave Malaysia under different names or passport. This effort will keep the follow of foreign workers into the country under control and will only increase or decrease base on the market requirement.

Besides that, the independent body which ought to be made up of various interest parties, NGO and government authority can be established and empowered to invigilate the recruitment process of foreign workers. The independent body can monitor local employers and other related agents whether they are act in accordance with proper procedure and also to identify or prohibit and foreplay in recruitment of foreign workers. Moreover, the independent body has to give right to oversees and access to companies database in identifying illegal or unregistered foreign workers. Upon identifying wrong doings the independent body needs to ensure proper reporting of cases to enforcement body for immediately action to be taken by relevant Malaysian authorities.

Other than that, vocational schools education system in Malaysia need to be review in terms of delivery skills in order to polish the local skills during secondary schools level such as welding and wiring. Thus, this will avoid the country from excessively depending and relying on foreign workers to practise major jobs involving skills such as manufacturing, construction, and etc. Vocational or skill based education in the county need a serious revamp since it is becoming more important today, with many employers expecting new employees to have the all the practical skills they need to start working.

Conclusion

As an end, foreign workers coming into Malaysia and working here is fundamental to our economy as it causes us to develop into an effective country. In the meantime, the legislature ought to manage the quantity of foreign workers entering the nation as it diminishes business opportunities for the locals as employers favour hiring foreigners. In the event that the legislature does not make the vital steps, our industry will be too dependent on foreign workers and this could end up being the ruin of the nation. Employers must offer need to nearby workers as opposed to discriminating the local workers. It is unfair to the local workers for them to contend with foreign workers and acknowledge low wages in their very own country. Local workers ought to be given fair treatment as far as being utilized. Taking everything into account, hiring foreign workers will carry advantages to our nations and it likewise will mischief and threaten to our nation. Hiring foreign workers have supported the economic development rate of our nation yet it likewise lead to our nation become unbound and criminal happened oftentimes. Other than that, obviously foreign illegal workers harms local workers more than legal foreign workers, yet abnormality in business is hard to seek after in nations with an enormous casual segments.

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