Integrity Legal

It recently came to this blogger’s attention that the Thai government has halted all incoming flights from overseas to Thailand. To quote directly from a recent article in Thai PBS World:

“[T]he prime minister wants to see stringent measures imposed on overseas arrivals for the period between April 2-15.  The Foreign Ministry has been tasked to find out ways to implement the directive from the prime minister.”

Further, in another article from The Nation, the following was noted:

“Taweesin Visanuyothin, spokesman for the Centre for Covid-19 Situation Administration, said Prime Minister Prayut Chan-ocha has told the Foreign Ministry to issue a new directive prohibiting new arrivals.”For the immediately foreseeable future, it appears that it will not be possible for anyone to enter Thailand by air.

Clearly, the Thai government has deemed the COVID-19 issues of a seriousness that it warrants across the board restriction of incoming flights. That stated, there appears to be a end date for these restrictions on the horizon. In a further article from the Bangkok Post:

“All passenger flights have been banned from landing in the country to curb the outbreak of the new coronavirus, the aviation agency said on Friday. The ban came into effect on Saturday morning and will run until the end of Monday, the Civil Aviation Authority of Thailand said in an order published late on Friday.”

Whether the government decides to extend this restriction on in-bound flights due to Coronavirus concerns remains to be seen. However, it seems logical to infer that if the restriction is lifted and in-bound flights are allowed to come to Thailand, the previously enacted restrictions on foreigners traveling to Thailand is likely to remain in effect over the medium term. To quote directly from the aforementioned Civil Aviation authority of Thailand:

With reference to the declaration of state of emergency in Thailand on 25 March 2020, the Civil Aviation Authority of Thailand hereby issues travel advisory to passengers planning to enter Thailand as follows:

1. Passengers or persons shall be permitted to enter, Transit or Transfer Thailand through international airport only if they fall under one of the following categories:

(a) Being in the situation or a person exempted by the Prime Minister or Permanent Secretary of Ministry of Foreign Affairs, under certain conditions and prescribed time period

(b) Carriers of necessary cargoes, but required prompt exit after the mission is completed

(c) Pilot-in-command, and crew members of the flight entering Thailand with clear schedule to depart

(d) Persons on diplomatic or consular mission, or under International Organizations, representatives of the government performing their duties in Thailand or other persons or international agencies that the Ministry of Foreign Affairs gives permission, and their families. In this case, certificate of entry to the Kingdom issued by Ministry of Foreign Affairs is required.

(e) Non-Thai nationals with work permit or who have been granted permission from Thai government agencies to work in Thailand (Smart Visa only)

(f) Thai nationals with certificate of entry to the Kingdom issued by Royal Thai Embassy or Royal Thai Consulate in their country of residence certifying that they are Thais returning to Thailand, and a Fit to Fly Health Certificate.
2. The persons in (d) (e) and (f) must have Fit to Fly Health Certificate issued no more than 72 hours before traveling.
3. Passengers or persons permitted to enter Thailand shall strictly comply with disease prevention measures imposed by the government.
4. The immigration officers have the power to deny the entry of Non-Thai nationals who have been tested positive for COVID- 19, or under the suspicion of being infected or who refuse to undergo such test.
5. All previous Notifications of CAAT become ineffective.

With limited exception, the vast majority of foreigners are not going to be permitted to enter Thailand in the upcoming weeks. The vast majority of those who are permitted to enter the Kingdom are likely to be Thai Work Permit holders. Bearing that in mind, it is notable that foreign nationals in Thailand maintaining work permit as well as Thai business visa status are likely to find unforeseen issues in renewing their work permits in coming months. This will likely be due to the unintended consequences of all of the lay-offs, furloughs, terminations, and voluntary reductions of work hours for Thai employees working in the Thai business sector.

In order to maintain a Thai work permit and business visa it is required that a Thai company maintain a 4-to-1 ratio of Thai employees to foreign employees. For those foreigners using a Thai marriage visa as a platform for maintaining lawful status in Thailand as well as employment authorization the ratio of Thai employees to foreign employees is 2:1. With this in mind, the small business sector of Thailand is likely to see a significant contraction of its workforce in the second and third quarter of 2020. As Thai employees are furloughed, terminated, or resign (sometimes in order to be eligible for newly created Thai unemployment benefits) it is likely that this will have a direct impact upon the Thai/Foreign employee ratio. If the ratio of Thai to Foreign employees is not maintained within a Thai business organization, then an application for a Thai business visa extension or Thai work permit renewal may prove impossible. Therefore, those businesses, small and large, employing foreigners in Thailand should keep a sharp eye on their labor force if they wish to maintain their foreign employees’ lawful status. This can be an especially acute issue for self-employed foreign nationals in Thailand who are using their Thai limited company as a platform to maintain their status. Those in the precarious position are strongly encouraged to seek the advice and counsel of legal professionals experiences in Thai corporate compliance, accounting, staffing, immigration, and labor issues

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Posted in Thailand Business | No Comments »

It is becoming increasingly clear that Thai Immigration officials are becoming ever more concerned with those who are working illegally in Thailand. Therefore, this state of affairs begs the question: how does one obtain and/or maintain work authorization in Thailand?

It should be noted that there are two ways in which one can obtain employment authorization in Thailand. One way is to receive an offer of employment from a Thai company. Generally, if the prospective employee is offered employment while abroad, then a WP3 work pre-authorization letter will need to be obtained and the foreign worker will need to apply for a Thai business visa before traveling to Thailand to have their work permit booklet issued. However, if the foreign worker is not abroad, then that individual may need to travel abroad in order to see to it that a WP3 is issued as the Thai Labor Department will only issue such documentation on foreign workers who are physically residing outside of Thailand. Within Southeast Asia, the WP3 is increasingly necessary as those Royal Thai Embassies and Consulates in the region which issue Thai business visas will only do so for those who have been issued a WP3.

Once in Thailand with a B visa, the prospective employee can seek their work permit booklet. Their employer must formally request such documentation as the employer is the sponsor of the work permit. After the permit is issued it should remain either on the premises of the place of business or if the employee must travel to another location to undertake work-related activity a copy should go along with the employee. It is worth noting that in March of 2018 the Thai Labor Department relaxed Thai work permit rules and therefore it is now possible for foreign work permit holders to engage in work activity away from their sponsoring-business’s premises.

The protocols regarding work permit issuance in the context of a business owner are qualitatively different compared to work permit issuance for someone wishing to be employed at a company in Thailand. One significant difference, especially in the context of an SME or a startup company is the “Catch-22” situation some prospectively self-employed foreigners find themselves in. For example, in order for an entrepreneur to obtain a work permit, they need a business visa, a WP3 is often necessary, and in order to obtain a WP3 a company is necessary. Therefore, Thailand company registration is often the first step toward obtaining a Thai business visa and work permit. Those wishing to setup a Thai company are well advised to seek professional guidance as there are multiple ways to incorporate a Thai business which, depending upon the legal structure, may provide differing benefits.

Tags: B Visa Thailand, business incorporation thailand, Thai B Visa, thai business setup, Thai Business Visa, Thai Work Permit, Thailand B Visa, Thailand Business Registration, thailand business setup, Thailand Business Visa, Thailand company registration, Thailand Work Permit, work permit Thailand, Work Visa Thailand, working visa thailand, WP1, WP3
Posted in Thailand Work Permit | No Comments »

In recent months, the rules upon which the regime for issuing and maintaining Thai work permits and visas have been undergoing some changes. However, the permanence of these changes remains to be seen and the practical implications of these changes are also open to speculation. Hopefully the following posting with provide some clarification with respect to where work permit and visa rules currently stand.

Work Permit Restrictions Appear to be Loosened

Since the promulgation of the Emergency decrees regarding work permits in Thailand analysts seem increasingly convinced that regulations regarding time, place, and manner of work in Thailand have loosened. In the past, Thai work permit regulations (and the enforcement agencies associated therewith) viewed the rules very strictly when it came to the specific locations where foreigners could undertake labor, the specific functions foreigners could perform, and the timing of when a foreign worker could begin working. For example, foreign temporary workers had to await issuance of a work permit book or temporary work document in order to begin working. Meanwhile, those issued with long term work permits were at one time restricted to performing their job only within the premises of the business acting as the work permit sponsor. Later, the geographic scope of labor endeavor was expanded to allow foreigners to undertake work throughout a specific province in Thailand. However, under any circumstances the foreign national with work authorization had to be circumspect in their endeavors as the work activities they undertook had to fall within the boundaries of the job description specified within the provisions of the work permit itself.

Pursuant to the provisions of the second emergency decree regarding the management of foreign workers in Thailand it appears that many of the restrictions regarding geographic scope of activity have been lifted. Meanwhile, the strict scrutiny of job functions appears to be a thing of the past as well (although a list of occupations restricted to Thai nationals is still in force so long as the activity in question is not specifically in violation of that list the foreign worker should be free from sanction). Furthermore, it appears that certain temporary workers who are brought into Thailand for a short period of time may be able to perform their function in a much more immediate manner compared to the past as, depending upon circumstances and subject to the aforementioned list of restricted activity, many workers may be able to immediately begin performing their functions.

The Return of the One Year Multiple Entry Visa?

It would seem that there is another possible change to Thai regulations regarding work authorization and business visas in Thailand. Apparently, regulations now stipulate that some of those working for a foreign company in Thailand (such as a Representative Office) are no longer required to obtain a work permit. This new exemption apparently only extends to Directors of such organizations. Furthermore, it appears that so-called Amity Treaty Companies (those corporations certified as American and therefore accorded protections pursuant to the US-Thai Treaty of Amity) are now subject to such exemption. Under such circumstances the directors of such companies are able to apply for a 1 year multiple entry visa from their country of origin. As of the time of this writing, this blogger has yet to personally deal with a matter arising under these new rule changes, but the creation of new immigration options is always noteworthy. It should be noted that these regulatory changes appear to be exclusive to Labor matters. Thai immigration regulations have not changed with respect to the rules regarding visa extension in the Kingdom. At the present time a work permit appears to still be required for those wishing to remain in the Kingdom long term via a Thai business visa extension application.

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Posted in Amity Treaty, Thailand Business, Thailand Visa, Thailand Work Permit | No Comments »

Officials at Thailand’s Ministry of Labor are currently in the process of promulgating guidelines pertaining to the issuance of Thai work permits for ASEAN citizens, according to an official report from the Government Public Relations Department. These measures are being implemented in an attempt to better manage what are perceived to be substantial future inflows of skilled and professional labor coming from the other jurisdictions which comprise the Association of Southeast Asian Nations (ASEAN). For those unaware, the ASEAN economic community (AEC) is currently poised to economically integrate in 2015.

According to officials at the Ministry of Labor, initially work permits may be issued for citizens of other ASEAN nations in twenty-five career fields. This prospective policy is in keeping with the provisions of the ASEAN Agreement on the Movement of Natural Persons (MNP). Professionals operating in areas involving: computers, advertising, marketing research, research and development, agriculture, telecommunications, management, education, finance, health, translation services, construction, engineering, and transport services (to name a few areas) may be eligible for a Thai work permit. Labor Ministry officials are apparently poised to utilize the National Skill Standard in order to ascertain whether approval of a work permit application for an ASEAN citizen is warranted. This measure is being undertaken in an effort to insure that only qualified workers are granted a work permit. Meanwhile, the Ministry of Labor and the Ministry of Commerce are preparing to work in conjunction with the Management System Certification Institute (Thailand) in an effort to set policies aimed at providing temporary status for qualified ASEAN citizens wishing to enter the Kingdom of Thailand.

All of these measures appear to be designed to provide ASEAN citizens with the rights and privileges that come with work authorization in Thailand. It is thought that as ASEAN becomes increasingly integrated larger numbers of foreign workers will descend upon Thailand as increasing numbers of Thai nationals seek employment opportunities in other ASEAN countries.

At the time of this writing, virtually all foreign nationals working in the Kingdom of Thailand are required to obtain work authorization in the form of a Thai work permit. Except in the case of a foreign national married to a Thai, such individuals are also required to obtain a Thai business visa in order to be eligible to apply for a work permit. As can be inferred from the information noted above, notwithstanding the integration of the ASEAN economies, foreign nationals from ASEAN countries are also likely to be required to obtain business visas and work permits before being able to legally undertake employment in the Kingdom.

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Posted in Thailand Work Permit | No Comments »

In previous posts, this author has discussed visa runs and border runs. Another common method of obtaining lawful status in the form of a Thai visa is by traveling to Thai Embassies and Consulates outside of the Kingdom of Thailand. This can be a difficult endeavor for some, but the difficulty can be increased as Embassies and Consulates change their internal rules frequently. This is a by-product of doctrines similar to that of Consular Absolutism also known as Consular NonReviewability. This doctrine states, in a nutshell, that Consular Officers are given wide latitude to use their own discretion when making factual determinations about visa issuance.

Recently, this author has learned that the Royal Thai Embassy Kuala Lumpur will no longer issue the 1 year multiple entry Thai business visa to those with a work permit that is valid for less than 7 months. In the past, it was routine to see the 1 year Thailand business visa issued to those with a valid work permit regardless of the duration of its validity. Now, it seems that only a 90 day business visa will be granted to those with a Thai work permit that is valid for less than 7 months.

In recent years, the Thailand work permit and the Thailand visa have been effectively “decoupled” in the sense that one is no longer necessarily dependent upon the other. For a long period of time one had to have a work permit in order to obtain a Thai visa extension. Once that extension was obtained one needed to then extend the work permit so that the two documents’ validity were in sync. This has changed as the Ministry of Labour is more apt to grant a 1 year work permit to first time applicants and then the applicant can easily obtain a visa extension. The side effect of this system is that Thai Embassies and Consulates are increasingly less willing to issue one year Thai visas since their personnel view the decision regarding issuance of such a long term travel document ought to be made by the Royal Thai Immigration Police in the Kingdom of Thailand.

When analyzed, this policy makes sense as the Royal Thai Immigration Police in Thailand are often better equipped to adjudicate visa extension requests. However, there are often very compelling reasons why an applicant would wish to obtain a 1 year multiple entry visa from outside of Thailand. One notable reason, such a travel document would not require the issuance of a Thai Reentry Permit as would be necessary if a one year visa extension were issued.

It should be noted that each Thai Consular and/or Diplomatic Post has a different set of rules with regard to visa issuance so what is the rule at one post may not be the same at another.

Tags: Consular Absolutism, Consular Nonreviewability, Royal Thai Embassy, Royal Thai Embassy Kuala Lumpur, Thai Embassy KL, Thai Embassy Kuala Lumpur, Thai Immigration, Thai Visa, Thai Visas, Thai Work Permit, Thailand Embassy Kuala Lumpur, Thailand Immigration, Thailand Visa, Thailand Visas, Thailand Work Permit, Visa Thailand, work permit Thailand
Posted in Legal Opinion, Thai Embassy Kuala Lumpur, Thailand Business, Thailand Embassy, Thailand Visa | No Comments »

Work Permits are always an important issue for foreign nationals living in Thailand. Under Thai law, the right to work is bifurcated from the right to remain in the Kingdom. Therefore, many find that it can be easy to be lawfully admitted to Thailand on a validly issued Thai visa and remain for relatively long periods of time, but it can be difficult to obtain work authorization in the form of a Thai work permit. One of the reasons for this difficulty is that the Thai Foreign Business Act restricts the types of activities that foreign nationals are allowed to engage in while present in Thailand. In many ways, Thailand has maintained protectionist measures in order to insulate the Thai labor force from some of the detrimental side effects of globalization.

Recently, it was announced that the government would be easing some of the restrictions in the Thai Foreign Business Act. At the same time, the Thai government has also announced that the rules still on the books would become the subject of more stringent enforcement. This leads us back to the issue of work permits. It would appear that the government is preparing to allow foreign companies to engage in certain previously restricted activities, but the upshot of this is that the rules and regulations regarding activities that are still restricted will be enforced more diligently than before.  To quote a recent posting on Thaivisa.com from the British Chamber of Commerce in Thailand Magazine:

“Unfortunately, the Labour Department has revised Work Permit regulations and a new list of the types of work foreigners are allowed to conduct will be issued by February 2010 at the latest. According to the current draft of the Ministerial Regulation, the new rules and practice will impact on current work permits (when they are extended) and also new work permits. [...] Despite the position of all foreign Chambers that liberalisation and streamlining of visa and work permit regulations would be advantageous for attracting and retaining much needed foreign investment, certain ministries appear to have taken the opposite view.”

It would appear that the Thai Ministry of Labour is taking a rather tough stance with regard to the enforcement of work permit regulations.

Although it is quite common to see such attitudes in difficult economic times, this author cannot help but wonder if this is the best course of action for the overall Thai economy. Small and medium sized businesses owned or managed by foreign nationals will likely be the most adversely impacted by this new policy and there is strong evidence that such enterprises act as the driving force for the economy-at-large. In these tough economic times, attracting foreign skilled labour and investment may be better than promulgating rules that make working in Thailand more difficult.

Tags: employment authorization Thailand, Thai Foreign Business Act, Thai Visa, Thai Work Permit, Thailand Foreign Business Act, Thailand Visa, Thailand Work Permit, work in Thailand, work permit in Thailand, work permit Thailand
Posted in Thailand Business, Thailand company, Thailand Visa, Upcoming Legislation | No Comments »

Work Permits can be a major issue for those engaging in non-recreational activity in Thailand. Thaivisa. com is reporting that some of those involved with the King’s Cup Regatta were worried that the Ministry of Labour and the Royal Thai Immigration Police may crackdown on foreigners participating in the Regatta. The reason for the possible crackdown was supposedly to be due to unsanctioned employment-like activity. Fortunately, as Thaivisa.com is reporting, rumors of a crackdown are unfounded as authorities have stated that no sailors will be detained for work permit violations connected with the event.

Quoting Thaivisa.com:

Rumors of an imminent crackdown on foreign sailors taking part in the King’s Cup Regatta over work permit violations are untrue, the head of Phuket Immigration has confirmed. A thread on the popular Thai Visa web forum yesterday started with the post:  ’Latest from Phuket Town… raiding King’s Cup regatta tomorrow for professional sailors without work permits….’ As Immigration Police would have to play a role in any such crackdown, the Gazette contacted Phuket Immigration Police Superintendent Col Chanatpol Yongbunjerd to see if the rumor was true; it wasn’t, and isn’t. ‘I guarantee that such arrests won’t happen,’ he said.”

Although it may seem trivial, some officials take work permit violations very seriously. As a result, some activities which foreigners consider to be “non-employment,” are used as a basis for fining or detaining individuals in the Kingdom for violations of Thai Labor law.

Immediately following the relatively recent Tsunami in Southern Thailand, many volunteers arrived to assist in relief efforts. Some of these volunteers were disturbed to be informed by Thai authorities that they were in violation of Thai labor regulations. To quote Thailandqa.com:

“‘More than 1,000 foreign volunteers from about 25 countries helping tsunami survivors rebuild shattered lives were outraged yesterday to hear they face legal action by the Labour Ministry unless they have a work permit. Sombat Boonngam-anong, director of the Chiang Rai-based Krajok Ngao Foundation, said confusion and anger reigned among the foreign volunteers at Khao Lak in Phangnga’s Takua Pa district when a Labour Ministry official told a local English-language newspaper that they were required to register with the ministry for a work permit otherwise legal action would be taken against them starting March 1.’ — Bangkok Post, 2nd March 2005, PENCHAN CHAROENSUTHIPAN”

Normally, in order for a foreign national to obtain a Thai work permit the applicant must also present a validly issued Thai visa. Many Thailand visa categories enable the bearer to apply for a work permit. However, the most optimal visa category to support a work permit is the business visa. Unfortunately, it can be difficult to obtain a Thai business visa from a Thailand Embassy or Consulate abroad and therefore many opt to stay in Thailand on tourist visas or exemption stamps. Neither of these documents, on their own, can be used as a basis for submitting a Thai work permit application. Therefore, those wishing to work in the Kingdom should seriously consider applying for a proper visa prior to arrival.

Tags: Ministry of Labor Thailand, Ministry of Labour Thailand, Thai Immigration, Thai Ministry of Labor, Thai Ministry of Labour, Thai Visa, Thai Visas, Thai Work Permit, Thailand Ministry of Labor, Thailand Ministry of Labour, Thailand Visa, Thailand Visas, Thailand Work Permit, Visa Thai, Visa Thailand, work permit Thailand
Posted in General Legal Information, Thailand Business, Thailand Embassy, Thailand Visa, Weird Law | No Comments »

In Thailand, any foreign national who wishes to be employed in the Kingdom must first obtain a work permit. Any Thai company that wishes to employ a foreigner must first meet certain requirements before the Thai Ministry of Labour will issue a work permit to a foreign national. Most notable among the requirements: any company employing a foreigner must have at least 2 million baht in registered capital (There may be exceptions for those with Thai Permanent Residence or an O visa based upon marriage to a Thai national). For the most part, employees in Thailand will only have one employer. However, sometimes situations arise where a foreign worker wishes to take up a second job. In this case a second employer will need to be noted in the work permit booklet.

There is a common misconception that a Thai work permit allows a foreigner to work anywhere in any capacity within the Kingdom of Thailand. Unfortunately, this is not the case, the work permit simply allows the foreigner to be engaged in the specifically noted activity stipulated in the work permit. Further, the work permit only allows the foreigner to be employed at the place of employment noted in the work permit booklet. Therefore, the address of the employer could be inferred as the only location where the foreigner is eligible to work.

Should secondary employment be sought by the foreigner, then it may be possible have another employer noted in the foreigner’s work permit. However, the first employer must agree to have a second employer noted therein. Further, the activity specified in the permit must be in conformity with the employment restrictions in the Thai Foreign Business Act. This legislation restricts foreigners from engaging in certain business activities in the Kingdom of Thailand.

The addition of a second employer should not have an impact upon the foreign national’s visa status in the Kingdom provided the original employer continues to meet the Thai Immigration rules regarding requirements for sponsorship of a Thai visa extension. Basically, the foreign national will continue to maintain one visa (sponsored by the original employer), but will have two work authorizations (one for the original employer and another for the secondary employer).

In a case where the original employment is ending, but the foreign national wishes to continue to reside in the Kingdom and work for what had been his second employer, a new Thailand visa extension could be issued if the foreigner quickly petitions for such an extension (it usually must be within 7 days) and the secondary employer meets the requirements for sponsoring a Thai visa extension.

Tags: Thai Visa, Thai Visa Extension, Thai Work Permit, Thailand Business, Thailand company, Thailand Visa, Thailand visa extension, Work Permit, work permit Thailand
Posted in Legal Opinion, Miscellaneous, Thailand Business, Thailand Visa | 1 Comment »