Extensions of stay and the Licensing Facilitation Act

[Maestro]

The current requirements for extensions of of temporary stay in the Kingdom are laid down in the following documents, issued under the authority of Section 35 of the Immigration Act and related Ministerial Orders:

Police Order 327/2557

Immigration Bureau Order 138/2557

I wonder what would happen, in a situation where an immigration officer asks for a document (eg medical certificate) or a procedure (eg MFA legalisation of embassy affidavit of income) not stated in the above requirements, if the applicant for the extension of stay asked for a copy of the "licensing manual for the public" pursuant to Section 7 of the Licensing Facilitation Act B.E. 2558 (2015):

Section 7. If the license to do any act is required by law, the authority shall prepare the licensing manual for the public which at least composes of the rules, procedure and conditions (if any) for the submission of the application, work flow and period of time for the granting of license as well as the list of documents or evidences to be attached with the application...

Does the above Section 7 apply also to applications for extension stay with immigration's form TM.7? In my opinion, it does, seeing that the Immigration Act is not included in the list of exemptions in Section 5:

Section 5. This Act shall not apply to:

(1) the National Assembly and the Council of Ministers;

(2) the Court’s rules, procedure and judgment and the performance of duty of the official in accordance with civil procedure and the execution of, and deposit in lieu of the performance in, any civil case;

(3) the execution under the criminal procedure;

(4) the licensing under the law on natural resources and environment;

(5) the licensing related to military strategic operation, including the law related to arms control and private armory. The exemption of any activity or agency other than those prescribed in paragraph one shall be prescribed by the Royal Decree.

How do others see it?

[pontious]

M - I see it like you do but even if they show you the manual and still ask for more what can you do? For extensions Samui are now asking for a medical that will be accepted from one named hospital only and costs 750 Baht! And valid for only for 7 days prior to renewal date

[Suradit69]

Not sure if an extension of stay is a "license to do any act."

Since the original Thai language version would be what matters, it would depend on what word was translated to "license" in English and how it was defined. I'm pretty sure immigration officers are allowed some discretion in what they ask for whether or not it's detailed in some law or regulation.

the authority shall prepare the licensing manual for the public which at least composes of the rules, procedure and conditions

There's no implication that every office or officer needs to have the mentioned "manual."

"The authority" would presumably be the Ministry of the Interior, so you could just be told to take your request to the ministry.

Edited July 10, 2016 by Suradit69

[Maestro]

Not sure if an extension of stay is a "license to do any act."

...

From the Licensing Facilitation Act:

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.

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;

...

[Evilbaz]

They'll just tell you "Up to Me".

[ubonjoe]

I think it would be a bit of a stretch to say that anything immigration does would fall under the act.

Its intent was for issuance of licences for doing business and such things as building permits.

[elviajero]

I think it would be a bit of a stretch to say that anything immigration does would fall under the act.

Its intent was for issuance of licences for doing business and such things as building permits.

I agree.

As the act came in to force over a year ago, and Immigration have not changed any of their practices since, I think it's safe to say they aren't regulated by this act.

[dotpoom]

My motto in life........"keep it simple".

[BritTim]

Maestro, I think your logic is impeccable. I think the intent is to force all government bodies to have standard procedures that are properly followed, and the list of exclusions does not mention immigration. It is a well-intentioned measure which (if enforced) would make it harder for officials to elicit bribes to do their jobs. In the end, though, it comes down to enforcement. There are plenty of regulations that are selectively ignored in Thailand, and asking them to follow section 7 would just cause another to be added to the list.

[elviajero]

Maestro, I think your logic is impeccable. I think the intent is to force all government bodies to have standard procedures that are properly followed, and the list of exclusions does not mention immigration. It is a well-intentioned measure which (if enforced) would make it harder for officials to elicit bribes to do their jobs. In the end, though, it comes down to enforcement. There are plenty of regulations that are selectively ignored in Thailand, and asking them to follow section 7 would just cause another to be added to the list.

I think Thai immigration, like the immigration services in all other countries, must have the final say over permission to stay and for that reason I don't see the Immigration Bureau falling within this act.

[Maestro]

I think it would be a bit of a stretch to say that anything immigration does would fall under the act.

Its intent was for issuance of licences for doing business and such things as building permits.

I agree.

As the act came in to force over a year ago, and Immigration have not changed any of their practices since, I think it's safe to say they aren't regulated by this act.

It would surprise me if any government agency had already started to comply with the Licensing Facilitation Act. Land Transportation Office, for application for a driving license, for a vehicle registration? Land Office for a land title deed? Etc. Now lets see what happens to a government agency if they fail to comply with this Act. The final two sections of the law:

Section 17. All authorities shall finish the licensing manual for the public under section 7 within one hundred and eighty days as from the day this Act is published in the Government Gazette.

Section 18. The Prime Minister shall have charge and control of the execution of this Act.

Surprise! The Act provides for no penalty. No transfer to an inactive post. No heads will roll. The Act was published in the Government Gazette on 22 January B.E. 2558 (2015) and entered into force 180 days later, ie on 21 July 2015. Seemingly nothing has been implemented since then. Is the whole thing an exercise in futility?

[elviajero]

I think the act is a good thing and meant to reduce corruption with from the agencies issuing business permits etc. How effective it will be is debatable. I don't see that it is right or practical for Immigration to be bound by strict rules. Publishing the basic application standards (police orders) would be enough in my opinion, but beyond that Immigration need discretion.

I see immigration as entirely different to an agency, for example, issuing a licence for selling food in a restaurant, which can be easily and reasonably standardised.

Edited July 11, 2016 by elviajero

[BritTim]

I think the act is a good thing and meant to reduce corruption with from the agencies issuing business permits etc. How effective it will be is debatable. I don't see that it is right or practical for Immigration to be bound by strict rules. Publishing the basic application standards (police orders) would be enough in my opinion, but beyond that Immigration need discretion.

I see immigration as entirely different to an agency, for example, issuing a licence for selling food in a restaurant, which can be easily and reasonably standardised.

Technically, today, immigration is supposed to follow Section 12 in refusing entry into the country. At both major Bangkok airports, they indeed do. I see no reason why Section 7 of the licensing act (and its other provisions) could not be applied there. The problem is with other entry points where they want to deny entry without following procedures. You seem to feel it important that they have this option. I am not convinced. I do not think decisions being up to the vagaries of individual entry points and officers is a good idea at all.

[JackThompson]

I think the act is a good thing and meant to reduce corruption with from the agencies issuing business permits etc. How effective it will be is debatable. I don't see that it is right or practical for Immigration to be bound by strict rules. Publishing the basic application standards (police orders) would be enough in my opinion, but beyond that Immigration need discretion.

I see immigration as entirely different to an agency, for example, issuing a licence for selling food in a restaurant, which can be easily and reasonably standardised.

Technically, today, immigration is supposed to follow Section 12 in refusing entry into the country. At both major Bangkok airports, they indeed do. I see no reason why Section 7 of the licensing act (and its other provisions) could not be applied there. The problem is with other entry points where they want to deny entry without following procedures. You seem to feel it important that they have this option. I am not convinced. I do not think decisions being up to the vagaries of individual entry points and officers is a good idea at all.

Section 12 is not always followed at airports according to some reports (even in Bangkok), but those seeking entry anywhere may appeal a denial of entry. But because that process can take up to 7 days, while the petitioner waits in detention, and a "denied entry" stamp in one's passport results if the appeal is denied, most opt to try another entry-point, or book a last-minute flight. OTOH, I recall some threads reporting that after speaking to a supervisor, some were let through without having to go through the formal appeal process.

IMO, it would be easier for travelers and IOs if the rules were explicitly defined, so that every party knows exactly what to expect and do, respectively, in every case.

[elviajero]

I think the act is a good thing and meant to reduce corruption with from the agencies issuing business permits etc. How effective it will be is debatable. I don't see that it is right or practical for Immigration to be bound by strict rules. Publishing the basic application standards (police orders) would be enough in my opinion, but beyond that Immigration need discretion.

I see immigration as entirely different to an agency, for example, issuing a licence for selling food in a restaurant, which can be easily and reasonably standardised.

Technically, today, immigration is supposed to follow Section 12 in refusing entry into the country. At both major Bangkok airports, they indeed do. I see no reason why Section 7 of the licensing act (and its other provisions) could not be applied there. The problem is with other entry points where they want to deny entry without following procedures. You seem to feel it important that they have this option. I am not convinced. I do not think decisions being up to the vagaries of individual entry points and officers is a good idea at all.

We are/were discussing the licensing act in respect to extensions of stay. I didn't say that immigration shouldn't follow procedure when denying entry. Different entry points have different challenges and it's right, and better for all, that they have the power to exercise local rules. It is every countries right to protect her border, and to suggest that IO' should strictly follow a 'manual' is never going to happen. An immigration officer is employed as the last line of defence and as such must have certain discretion. If someone is denied entry they have the right to appeal and others will make the final decision.

[Maestro]

I mentioned extensions of stay in the topic title because these are easiest to relate to the question whether the Licensing Facilitation Act applies also to the Immigration Act. If the Immigration Act is not exempt – and I don't see that it is – there are other aspects of granting permission, registration, acceptance of notification by immigration that fall under Section 4 of the Licensing Facilitation Act.

For example, the first thing a foreigner does upon arrival in Thailand is present his passport and arrival card to an immigration officer and in so doing he is applying for permission to stay and, with the arrival card he submits his address for registration. Subsequently, for some foreigners there is the need to apply for an extension of permission to stay, to apply for a permit to re-enter Thailand, to notify a change of address, to notify staying in the kingdom longer than 90 days, etc.

For all this and more, there is the Immigration Act and related Ministerial Regulations and Orders, Police Orders, Immigration Orders, and internal guidelines for the immigration officers. The details are all there, the only thing that needs to be done by Immigration is to collate them in manuals, eg a separate manual for each permission, registration or notification, and these manuals "shall be placarded at the place designated as the place for submission of application and shall be disseminated in an electronics media" (Section 7 of the Licensing Facilitation Act), eg the website www.immigation.go.th