A New Ally -- Thailand’s Licensing Facilitation Act of 2015

[Ajahnski]

Hello Everyone,

So, I recently had to do a visa extension while my wife was in the hospital. To add to the fun, our local immigration office in Kantang are notorious for making up rules that result in tea money fines. They made some issues with my last 90 day check in, which I did by mail. I went to the Satun office for the extension, but knew there would be problems following from Kantang, who put me in the system as not having done the check in (with accompanying fine.)

I successfully used this new law to explain to the office in Satun why Kantang had not done their job and the fine was illegal. I wrote a walk through of the law and how I used it here:

http://thediogeneticlight.blogspot.com/2016/04/thailands-licensing-facilitation-act-of.html

Here's a translation of the law:

http://www.opdc.go.th/uploads/files/2558/LICENSING_FACILITATION_ACT_2015.pdf

(Moderators: I couldn't find the thread with all the different translations of Thai law & immigration rules. Is this law posted there? If not, could we get it posted?)

I hope this helps others in the future.

Edited April 18, 2016 by Ajahnski

[BritTim]

Very interesting. I would say standing up for your rights in this way is a pretty high-risk strategy. Thailand is not renowned for always following the letter of the law. However, it is certainly a good tool to consider using against lazy officials who do not do their jobs.

[Myran]

Awesome. We need more people like you.

[JLCrab]

So is the granting of an extension of stay and other provisions to be executed by the Bureau of Immigration as regards a non-Thai's continued stay in the Kingdom now considered to be a 'License' as defined in Section 4 of the Act?

[BritTim]

Are the electronic copies of the "licensing manual" for the various immigration functions available online, as required under the Act? To say the least, they would make extremely interesting reading.

[Ajahnski]

Very interesting. I would say standing up for your rights in this way is a pretty high-risk strategy. Thailand is not renowned for always following the letter of the law. However, it is certainly a good tool to consider using against lazy officials who do not do their jobs.

Thank you. I agree - it was risky. That's where this law is so helpful. In law, we often distinguish between substantive law (what is right or wrong) versus procedural law (how you apply and administer the law matters too). This law covers procedures so that it's much more difficult for corrupt officials to change the way they administer the law. That makes it more difficult to collect tea money.

Because this law basically says that gov't officers must follow the letter of the law, it puts a restraint on them. I think that this only works if we know that this law exists. When I quoted this law to the officer in Satun, she was visibly surprised*. My guess is that she realized I was armed and ready to rumble, if needed. I don't know all the aspects of anti-corruption law here, but I think that this law is supposed to work in coordination with some of the other anti-corruption laws. She didn't want to find out what I knew, especially after I presented my hands and invited her to arrest me. How much loss of face would it have been if they did arrest me, and then I used that law to (1) exonerate myself, and (2) then come back to file complaints against them? It just wasn't worth the effort or the risk, especially since Bangkok is making anti-corruption noises right now.

Of course, my sincere willingness to let them arrest me instead of giving in to the other office's incompetence probably made a huge difference.

[Ajahnski]

So is the granting of an extension of stay and other provisions to be executed by the Bureau of Immigration as regards a non-Thai's continued stay in the Kingdom now considered to be a 'License' as defined in Section 4 of the Act?

In short, YES. Sect. 4 specifically includes registrations and notifications, and in sect. 3 it overrules any other law that does not conform to this law. This law is potentially quite powerful for dealing with corruption and incompetence.

(I explain it in more detail in the blog article. Please let me know if the article is not clear or too technical. I can go back and revise it.)

[Ajahnski]

Are the electronic copies of the "licensing manual" for the various immigration functions available online, as required under the Act? To say the least, they would make extremely interesting reading.

Great question! I used what was posted here before I went to Satun, since TVF has better information than the gov't websites.

I just looked online, and am not finding anything. I sent an email to an immigration atty to see if he knows where to find them electronically. If they aren't available yet, then we probably have to rely on the old gov't websites.

However, this law still means that they aren't allowed to magically create new rules or require anything more than is posted online currently. If they aren't available online, then this law makes that the fault of immigration and doesn't allow them to demand extra papers.

[JLCrab]

Section 4 also states that:

“Laws related to licensing” means all laws with the provisions that require the granting of license prior to do any activity or business;

and someone might also say that a permission to stay, as defined under the Immigration Act, is not a license as defined in the Licensing facilitation Act but I guess, until there is some official opinion, I'll have to wait until my local Immigration Office does something silly which so far in the last almost 10 years I have been going there they have not.

[Maestro]

Ajahnski, thank yo very much for this topic and the link to the Licencing Facilitation Act.

(Moderators: I couldn't find the thread with all the different translations of Thai law & immigration rules. Is this law posted there? If not, could we get it posted?)

Post #3 in the linked topic Important Visa Information → Useful Immigration Information & Visa Descriptions has a list of rules about visas and immigration laws and rules, and I am now adding the Licencing Facilitation Act with the following listing:

Licencing Facilitation Act B.E. 2558 (2015) - English translation

Licencing Facilitation Act B.E. 2558 (2015) - Thai text

Licencing Facilitation Act B.E. 2558 (2015) - en.pdf

Licencing Facilitation Act B.E. 2558 (2015) - th.pdf

[JLCrab]

So the OP went to the Satun Immigration Office and explained to their official(s) that their issuance of an extension of stay is now subject to the rules regarding the issuance of licenses. Maybe if he did the same approach at ChaengWattana he might not have gotten the same response.

[Ajahnski]

Section 4 also states that:

“Laws related to licensing” means all laws with the provisions that require the granting of license prior to do any activity or business;

and someone might also say that a permission to stay, as defined under the Immigration Act, is not a license as defined in the Licensing facilitation Act but I guess, until there is some official opinion, I'll have to wait until my local Immigration Office does something silly which so far in the last almost 10 years I have been going there they have not.

You bring up a good point. Here's a more detailed analysis.

Section 3. This Act applies to the granting of all permissions or licensing as well as all registrations or notifications in which the application for those are required by laws or rules prior to do any activity. All laws or rules which are contrary to, or inconsistent with, this Act shall be repealed and replaced by this Act. [emphasis added]

Section 4. In this Act: “License” means an authorization to be made by the official to any person prior to do any activity as prescribed by laws, including the granting of license or permission, the registration, the acceptance of notification and the issuance of a certificate of lease or concession;

It’s suggested that “… a permission to stay, as defined under the Immigration Act, is not a license . . . “

You bring up a good point. I thought about addressing this in the original article more thoroughly, but I didn’t want to get lost in details. Also, the only arguments for that proposition are really bad, if not outright stupid. (I’m NOT saying that you’re stupid for bringing them up! You were smart to recognize the types of arguments we may encounter.)

So, let’s look at this by section. In sect 4, it specifically includes the acceptance of a notification. Period. Case closed.

“But,” the official may say, “it must be prior to do any activity, and you haven’t done anything yet.” Of course not, because prior means before, and I am registering before continuing my stay in the kingdom. The activity in question is living, and, if living is done by a foreigner within the kingdom, then they must submit this notice. “Oh,” says the official, “but you should have submitted this before coming to stay in the Kingdom.” That is pure nonsense: the form clearly says for “continuing to stay in the kingdom,” not “coming to stay in the kingdom.”

“Oh,” says the official, “but you don’t understand Thai culture.” It’s at this point that you either present your hands to be cuffed, like I did, or just ask them how much tea money they are going to extort from you.

Now, on to sect 3 of the law. We’ve looked at the “prior to do any activity” portion of that phrase. The extra part in sect 3 is “required by laws or rules.” “Oh,” says the official, “but the 90 day notice isn’t required – we won’t throw you in jail if you don’t submit it.” Nope. There are still fines, and, if you refuse to pay the fines, you may be arrested and deported. So, yes, it is required.

Further, that argument sill ignores the fact that sect 3 is an override provision. The purpose of sect 3 is to expand the law to cover portions of the law that might arguably not be covered. This section of the law is to expand the law, not to retract it.

Sorry if this portion feels like you have wasted your time with minutiae and silly straw man arguments. Writing this feels like I’m kicking a dead horse, but, having dealt with Thai immigration more than I ever care to, this was a good thing to include.

[JLCrab]

Yes -- and I believe that a reasonable reading of the Act would indicate that it addresses any permission or activity related to the issuing of licenses such as a license as required to operate a hotel, restaurant, or means of transport or offering of a service such as a travel agency.

Edited April 24, 2016 by JLCrab