Special Report: Permission to function in Phuket

[Lite Beer]

Special Report: Permission to function in Phuket
Phuket Gazette -

WORK PERMIT: But what exactly is 'work'?

PHUKET: The separate arrests of a German man and a Swiss man at their homes in Chalong late last month by Immigration officials sent a chill through the law-abiding expat community in Phuket.

The two men were arrested despite their protests that they were each building their own boat for their own private use.

The Phuket Gazette was told both men were subjected to a fine, allegedly 60,000 baht apiece, and then released. As one of the two men survives on a meager pension, he had to borrow the money to gain his freedom.

At the time of the arrests, no officers at Phuket Immigration were willing to comment about either case. Instead, officers said Phuket Immigration chief Sunchai Chokkajaykij – who was in Bangkok at the time – was the only person with the authority to speak about the incident.

On receiving a call from the Gazette that same day, Col Sunchai terminated his conversation before our reporters could ask him whether or not he was aware of the arrests of the two men.

The next day, Phuket Immigration’s Capt Angkarn Yasanop called the Gazette to vehemently deny that the German and Swiss nationals were fined, attesting that they were arrested for overstaying their visas, but later set free.

“We received a tip-off from our undercover immigration officers that the two men were overstaying their visas. When our officers went there [to the men’s homes], the two men could not present them any documents,” he said.

Capt Angkarn did not make it clear whether the “documents” he was referring to were the men’s passports or work permits, or both.

“The men were taken to Phuket Immigration [in Phuket Town], but later when a lawyer turned up, we released them,” he said.

Capt Angkarn did not comment on why immigration officers did not check the national database to confirm immigration’s own records of the men’s legal status, before placing the retirees under arrest and taking them to the immigration office in Phuket Town.

By then, however, news of the arrests had spread throughout Phuket’s expat community. A flurry of comments posted on the Gazette website highlighted the dangerous “catch all” wording of the law that empowers officers to arrest any foreigner at anytime for literally anything.

The Alien Working Act 2551 (2008), according to the version listed on the International Labour Organization (ILO) website – no official versions of the law are available in any language other than Thai – explains the definition of work as: working by physical strength or knowledge whether or not intended for wages or any other benefits.

However, Yaowapa Pibulpol, chief of the Phuket Provincial Employment Office, the government office established to specifically regulate and administer employment law, maintained that the wording does not allow officers to apply the law beyond its intended scope.

“Foreigners cannot perform any work – in the true sense of the word – without a work permit. And they may only perform the work listed in the work permit and only at the place of work listed in the permit.

“But that doesn’t mean they can’t cook their own meals, clean their own houses or tend to their own gardens. Of course they can, but as soon as they are hired or profit by doing any of these things, they are ‘working’,” she said.

“And any foreigners who want to build their own boats on their own time, using their own skills and experience, for their own personal use are not breaking the law. They can do this, but they cannot build a boat so they can sell it later on. That would be profiting from the work,” Ms Yaowapa added.

Not applying the law beyond its intended scope is also what makes it legal for foreigners to assist in public cleanup campaigns and other community projects – as long as the volunteer work is not regular, she added.

“Being a volunteer for an organization requires a work permit. This is because although you might not get money from the volunteer work, you might get food or a place to stay as a reward. So if you do not have a work permit, you are illegal,” Ms Yaowapa said.

Meanwhile, Capt Angkarn at Phuket Immigration says the raids will continue, especially now that the number of officers at his disposal have been doubled.

“Previously, Phuket Immigration had only 20 officers. Then, in July, more officers arrived and now we have 40. This has made it easier to be more effective in our work, and this is why people are now hearing about more raids being conducted,” Capt Angkarn said.

“When investigating a foreigner, we check five points: 1) They have their passport with them; 2) Their visa is still valid; 3) They have a work permit; 4) The job and the workplace cited in the work permit match what they are actually doing as work; and 5) They are not performing work that foreigners are prohibited from doing by law,” he said.

Russians, Chinese and Australians are trending as the most likely to be caught, said Capt Angkarn, but only because there are large numbers of each on the island.

“We are not targeting any particular group of foreigners, but as many people of those nationalities come to Phuket, they are more likely to be subjected to a raid, and therefore more likely to be caught compared with other nationalities,” he added.

In making work permit arrests, immigration officers often co-ordinate their efforts with the Phuket Employment Office, Capt Angkarn explained.

“The authority of arrest is ours, so officers from the Employment Office do not join us during raids,” he said.

“However, we work together to share information. Sometimes they give us tip-offs about foreigners suspected of working or staying in the country illegally, and we go and arrest them. Sometimes, when we arrest foreigners, we have to check back with the Employment Office to make sure information about the foreigners is accurate.

“The Phuket Employment Office also conducts their own raids, but since they do not have many officers, they cannot do this often. Most of the raids are conducted by us instead,” he added.

In arresting foreigners on work permit and visa overstay charges, it is standard procedure for immigration officers to present the suspects to the nearest police station for processing, Capt Angkarn explained.

“When we make an arrest, we hand the suspect over to the local police station. The police investigator questions both the immigration officer who made the arrest and the suspect, and collects any evidence seized.

“If the police investigator proceeds with pressing charges, the case file is sent to the prosecutor and the prosecutor submits it to the court.

After the court hands down its verdict, and its sentence, the foreigner is returned to the police station where he was charged, then the police investigator hands custody of the foreigner over to Phuket Immigration.

Foreigners have the right to appeal the verdict, just as with any other court case, Capt Angkarn explained.

“They can file a complaint to the Court of Appeals if they are dissatisfied with the verdict or sentence,” he said.

However, if the foreigner does not contest the court’s decision, the standard procedure is deportation.

“We will send the foreigner to the Immigration Bureau in Bangkok, where the foreigner’s name is added to the immigration blacklist before he is deported out of the country,” Capt Angkarn said.

Source: http://www.phuketgazette.net/phuket_news/2013/Special-Report-Permission-to-function-in-Phuket-22548.html

-- Phuket Gazette 2013-10-20

[falkan]

still no clear answers about the boys renovating the boat..

[MacWalen]

It does not sound good and the prospect of being deported sounds even worse.

Sent from my GT-I9190 using Thaivisa Connect Thailand mobile app

[N47HAN]

Juat plain scary really.

Its like the lottery , when your numbers up its up if they want to finger you for something , Anything .

[Maestro]

From the news article:

“Foreigners cannot perform any work – in the true sense of the word – without a work permit. And they may only perform the work listed in the work permit and only at the place of work listed in the permit.

“But that doesn’t mean they can’t cook their own meals, clean their own houses or tend to their own gardens. Of course they can, but as soon as they are hired or profit by doing any of these things, they are ‘working’,” [Yaowapa Pibulpol, chief of the Phuket Provincial Employment Office] said.

“And any foreigners who want to build their own boats on their own time, using their own skills and experience, for their own personal use are not breaking the law. They can do this, but they cannot build a boat so they can sell it later on. That would be profiting from the work,” Ms Yaowapa added.

A very logical and sensible interpretation.

[Puccini]

From the news article:

...

The Phuket Gazette was told both men were subjected to a fine, allegedly 60,000 baht apiece, and then released. As one of the two men survives on a meager pension, he had to borrow the money to gain his freedom.

...

The next day, Phuket Immigration’s Capt Angkarn Yasanop called the Gazette to vehemently deny that the German and Swiss nationals were fined, attesting that they were arrested for overstaying their visas, but later set free.

“We received a tip-off from our undercover immigration officers that the two men were overstaying their visas. When our officers went there [to the men’s homes], the two men could not present them any documents,” he said.

Capt Angkarn did not make it clear whether the “documents” he was referring to were the men’s passports or work permits, or both.

“The men were taken to Phuket Immigration [in Phuket Town], but later when a lawyer turned up, we released them,” he said.

Capt Angkarn did not comment on why immigration officers did not check the national database to confirm immigration’s own records of the men’s legal status, before placing the retirees under arrest and taking them to the immigration office in Phuket Town.

...

I believe Capt Angkarn when he says that the two foreigners were not fined. I also believe the two foreigners when they say that they each paid 60,000 Baht to the police but I suspect that this was not in payment of a fine, ie they were given no corresponding receipt.

[oceanyachting]

There are always exceptions. I work for a certain organisation on a volunteer basis yet my colleagues have not asked to see a work permit nor arrested me yet.

[JHenry]

There are always exceptions. I work for a certain organisation on a volunteer basis yet my colleagues have not asked to see a work permit nor arrested me yet.

First of all It takes time. Never say never.

Second, there are jobs that foreigners allowed to do work permit or not, like teaching. Boats is a different story. They might just annoy the neighbours with the noise and smells who knows.

[bitcoinbob]

they were most likely working on there boat repairs whatever ,some noise, angry neighbors dropped a dime on them most likely got to watch those Thai's they no the laws about foreigners better than immigration.

[simon43]

The frustrating thing about volunteer work and the need for a work permit (or not), is that it's entirely up to the whim of the immigration officer as to whether a WP is needed or not.

- Clean the beach on one occasion ==> you don't need a WP.

- Clean the beach every morning during your daily exercise ==> regular volunteer work ==> you need a WP .... maybe

- Work as a TPV on a regular basis ==> you don't need a WP (because the police say 'we are the police - of course you don't need a WP!)

I wish the immigration guys, police and labour office would sit down together and clearly define who needs a volunteer WP and who does not.

Simon

[Greer]

I don't think its true that you don't need a work permit to teach - that's a myth.

[Emdog]

I have friend here who collects garbage on beach everyday, tries to help stray dogs. He was given "Pattaya farang of the year award" recently at Central by various big wigs. The comment about needing a work permit if do it every day is telling: they can't comprehend that someone would "Just Do It!" without being member of an organization. I never see Thais doing any clean up, except the sweeping ladies. The beach is filthy.

Let's see.... I paint the inside of the house or condo I own and get arrested. Why? Because at some later date I might sell that place. I did all the renovation in my Victorian house in USA: wiring, plumbing, construction, etc. I should hire some sloppy untrained clueless fool? I don't think so! Same could be said for washing car, changing oil.... Do I need to hire someone to wipe me after I use toilet?

[LivinginKata]

I don't think its true that you don't need a work permit to teach - that's a myth.

For sure you need a Work Permit to teach in a school.

[NamKangMan]

I wonder where you stand if you are helping friend with his garden, car, house etc.

[IrishIvan]

So you can work as a volunteer policeman or volunteer in immigration on a tourist visa?? Bizaare

What if I buy a motorbike. Do some modifications at the local garage. And then someone pays me more than I bought it for?

Sent from my GT-N7100 using Thaivisa Connect Thailand mobile app

[Ulic]

Reading the story I am still not sure what is going on.

[Halion]

Thai administration at it's best. Why in this country is it so bloody difficult to get a clear and concise statement of pertinent facts.

Were they over stayers,? I doubt it because if they were they would have been in big trouble up front.

Were they building for a third party for profit ? I really do not know or care. What I do know is that if they were building for a third party and the BIB could substantiate that, then again they would be in big trouble. To me just the local police trying to shake down some farang and the situation vent viral leaving the local police where they truly belong. In the shit

[MK1]

Thai administration at it's best. Why in this country is it so bloody difficult to get a clear and concise statement of pertinent facts.

Were they over stayers,? I doubt it because if they were they would have been in big trouble up front.

Were they building for a third party for profit ? I really do not know or care. What I do know is that if they were building for a third party and the BIB could substantiate that, then again they would be in big trouble. To me just the local police trying to shake down some farang and the situation vent viral leaving the local police where they truly belong. In the shit

More than likely the two non-conforming foreign work permit holders upset some local Thai’s by complaining about their workmanship or something and disputed payment. In turn this possible resulted in them being dobbed in. The outcome known to Thai’s, in the end, is called; “Som Nom Na”

[Puccini]

...To me just the local police trying to shake down some farang and the situation vent viral leaving the local police where they truly belong. In the shit

The police got their hands on 120,000 Baht. And they pulled this trick while their boss was away in Bangkok. What are we to make of this?

[simon43]

So you can work as a volunteer policeman or volunteer in immigration on a tourist visa?? Bizaare

The crazy thing is that it is NOT permitted to work as a TPV without a WP - the Labour Law is very clear on this and working as a TPV is not exempt from these regulations.

But it IS exempt because the police say you don't need a WP because you're 'police'. Apparently 1 policeman trumps multple labour department officers.

Simon

[timewilltell]

The real problem with Thai law is that it is written in such a manner as to be open to wide interpretation. Those interpretations vary with each boss that arrives in the appropriate post and until you get to court and argue a case in front of a judge, appeal and then appeal to the Supreme Court when a final interpretation is handed down, no one really knows what the law means. Even then Supreme Court decisions do not actually bind the lower courts although in practice a lower court judge would be reticent to argue against his superiors.

As a side note this also happens in the a Western legal systems with the major caveat that case law provides heavy guidance and that the laws are written to be more binding, explanatory and specific than here, where the culture leaves everything loose. Specifics are not the friend if Thais which you can often see in their conversations and arrangements, where they will avoid tying things down to specifics very often.

Anyway the net result is that from owning land to allowable actions, foreigners really do not have clear rules to follow as we are used to and the Thai culture of corruption which infects the Thai Police maybe the most of all civil servants, results in the twisting of the law to extract money. Foreigners here really cannot know what they can or cannot do in so many cases, and to be honest I don't think the government officials and police, lawyers and so on know much better than the rest of us. Hence we are open to deceit and corruption for lack of properly constructed laws and a loose justice system.

Take it as it is and hope for the best because it isn't likely to change anytime soon. The game has serious stakes though as the end game is your summary deportation.

[EOB1948]

The ambiguity is deliberate in order to extort. Not likely to change soon, either with the generally cowed attitude of the expat community who seem to wholly embrace any and all matters of unfairness in Thai rules.