Greetings “Aliens”, foreigners and all those who think they can guess or hope the laws relating to labour and immigration somehow work in their favour. If you are planning to visit the United Kingdom, my former home, anytime soon – let me advise you not to Google “obtaining a VISA to go to, or attempting to work in, the UK” and then follow the advice blindly. Similarly, don’t pick the highest Google rated Thai or other country-based web forums for your visa and work permit advice! And, if you ever hear the words “No problem, we can ‘fix’ it”, increase your radar settings to maximum frequency for anything that might be a shortcut, misinterpretation of the law or downright cowboy-esque shootingfrom-the-hip style approach to your right to be in this beautiful Kingdom of Thailand.
“Can I just pop into Thailand and conduct a seminar?”
No. The type of visa you require is a ‘Type ED’ visa. This covers word study tours, observation tours, participating in projects or seminars and studying as a foreign Buddhist monk.
Once you have the correct visa, you then need to obtain either a full work permit, or a temporary work license known as a WP.11
“I’m a hobby DJ and would like to bang out some tunes at my favourite hotel bar and maybe pick up some chicks and free drinks while I do so. I don’t want to go through the hassle of obtaining a temporary 15 day work license for just a few hours. Is that OK?”
Predictably, no. You may be a popular DJ in your local discotheque, but that won’t help you if you DJ in Thailand without the correct legal documents. Performing as a musician or other type of performance is not generally restricted under the list of activities reserved for Thais in the Alien Employment Act.
If you intend to conduct a one-off performance, you may be able to do so with an authorised WP.11, provided it clearly denotes precisely what you will be doing and is supported by the correct visa.
Even if you live in Thailand and already have a work permit for another job, unfortunately you can’t simply pick up your memory stick and CDs, visit your local club and start hammering out your ‘tunes’.
“My accountant advised me to become a director of my Thai company and told me I don’t need a work permit for that. In my home country, I have business friends who are ‘Non-executive Directors’. If I don’t sign any documents, but attend a few meetings or teleconference calls here and there, surely I can ‘get away’ with not having a work permit. A friend of mine telephoned a Global Big 20 firm and asked the same question, and they told her over the telephone ‘not to worry about it’. Is that OK?”
The definition of work is to ‘exert effort and employ knowledge’ whether or not for wages or for other benefits. Clearly, you can’t avoid the law simply by not being paid. Further, there is a minimum salary that foreigners who are working have to receive. By asserting that you are not working, when in fact you are, and then further not declaring the minimum salary and paying tax on it, you will be in violation of multiple laws and regulations.
If you receive verbal advice, or unqualified advice, and rely upon it, you run the risk of being placed in a situation where you are interviewed by a government official and the best defense you can offer is that you received an ‘OK’ on the telephone from a friend.
Even if you don’t sign documents as a registered director of a Thai company, you will most likely have to (a) attend a meeting now and again, (b) discuss the business and apply your mind to it, (c) communicate with shareholders or approve shareholder communications, (d) accept liabilities and – very importantly – whether you have signing authority or not, (e) potentially deal with any litigation lodged against the company or you as a director.
Directors tend to panic somewhat when they realise they may have to testify in court regarding a company matter, and will also possibly have to explain that they don’t have a work permit.
“Recently, a Phuket Immigration officer at the airport asked me if I could speak Thai and when I admitted I could (‘Chai Khrap, Khop Khun Khrap’), he immediately asked me for my work permit. Do all foreigners who speak Thai need to have work permits?”
A work permit is not a document granting permission for you to enter the Kingdom of Thailand. Your passport is your official document and, in fact, the Immigration official is not carrying out a specific duty in requesting your work permit, as this is a duty of a competent official or Registrar of the Employment Department under Section 24 of the Alien Employment Act 2008. It is not illegal for the Immigration officer to ask, but you may politely decline to answer, or state you do not have it with you or do not have a work permit. You must make sure you are following the rules under the Immigration Act 1979 though. But speaking Thai, and admitting you do so, should not result in an additional requirement for you to offer up a work permit.
“I bought an apartment overlooking a football stadium and a beach club as part of a managed estate. I’m a qualified lawyer in Australia and my neighbours thought it would be a good idea if I joined the committee that manages the estate’s common areas, fees and management decisions. As the committee is not registered under Thai law, I don’t think I need a work permit to join. Additionally, my salary is so large in Australia that I don’t need a salary here, so I can’t see how I’m working if I simply join this committee. Am I right?”
No, you are wrong. A committee, often tellingly described as a ‘working group’ or ‘steering committee’ is a function of persons carrying out tasks in order to benefit their properties individually, and collectively. On the face of the facts above, a temporary work license would be required for each meeting WP.11, or a full work permit for permanent membership of the committee. However, to join a Housing Development which is regulated under Thai law, and to be a committee member, it is arguable (but not absolute fact) that a work permit should not be required. This is because such functions are, under law, necessary as part of the functioning of the estate. There are issues, though, with such an interpretation as foreigners will generally own leasehold in such estate, or may own a minority shareholding in a Thai company – of which they are most likely a director, and therefore do need a work permit.
“Some of my football heroes are planning to visit Thailand to take part in a friendly tournament. They receive sponsorship benefits, and I’m sure a few other benefits whilst they’re visiting. Do they need a work permit?”
Technically yes. A special Visa Type B is required, with a temporary work license WP.11. However, applications can be made through the Sport Authority of Thailand for special consideration from the Ministry of Foreign Affairs to allow an expedited process, but within the parameters of the law.
“I applied for a work permit, and the officer receiving my application said he was very busy at the moment, and would get back to me within a few months. This is going to be a problem for me, as I need to pay rent, pay my Thai staff, and I can’t see how I can work and produce income without a work permit. Does the officer know this? How long is he supposed to take to process my application? Can I sue him or the government department?
Officers are generally aware that persons seeking a work permit need efficient processing of their applications for personal reasons relating to income and prospective work. Under S.12 of the Alien Employment Act 2008, the registrar must issue permits to ‘aliens’ within seven days of receiving the complete application. Issues can arise when an officer asserts an application has a defect or is ‘incomplete’.
If you feel you have been wronged in your application, you should bear in mind the following law: Article 9, Para 2 of the Establishment of Administrative Courts and Administrative Courts Procedure Act 1999, permitting action for a state official’s neglect of official duties required by law to be performed without unreasonable delay.
An action under this provision can only be instituted where an administrative agency or state official has a particular duty to perform under the law, but neglects it or performs it with unreasonable delay. In this case, the Administrative Court may issue a decree by directing the Head of the Administrative Agency concerned, or the state official in question, to perform the required duty within the time specified by the Court.
“What is the penalty for working with no Work Permit?”
Under S.5 Alien Employment Act: “An alien working without a work permit shall be liable for punishment of imprisonment not exceeding 5 years or a fine from 2,000 baht up to 10,000 baht or both”.
The consequences of a criminal conviction for foreigners who need to stay in Thailand can be devastating. They may lose the rights to enter Thailand in extreme circumstances, and thereby may lose the right to see their families too.
“What is the penalty if a government officer asks for a bribe?”
The penalty includes death. Under section 149 of the Thailand Penal Code: “Whoever, being an official, member of the State Legislative Assembly, member of the Changwat Assembly or member of the Municipal Assembly, wrongfully demands, accepts or agrees to accept for himself or another person a property or any other benefit for exercising or not exercising any of his functions, whether such exercise or non-exercise of his functions is wrongful or not, shall be punished with imprisonment of 5 to 20 years or imprisonment for life, and fined 2,000 up to 40,000 baht, or death.”
Desmond Hughes – Senior Partner, Hughes Krupica
Hughes Krupica is a law firm which specialises in Real Estate; Construction; Hospitality; Corporate; Dispute Resolution; and Litigation, operating in Bangkok and Phuket, servicing clients in relation to their business activities in Thailand and in other regions of Asia.
www.hugheskrupica.com
Contact info:
Hughes Krupica Consulting
PHUKET (HEAD OFFICE)
Hughes Krupica Consulting Co. Ltd
23/123-5 Moo 2 Kohkaew Plaza
The Phuket Boat Lagoon
T. Kohkaew Amphoe Muang
Phuket 83000 Thailand
Tel: (0) 76 608 468
BANGKOK (SERVICED OFFICE)
Hughes Krupica Consulting (Bangkok) Co. Ltd
29/41 Soi Ladprao 22
Ladprao Road
Chankasem, Chatuchak
Bangkok 10900 Thailand
Tel: (0) 20 771 518
[email protected]
www.hugheskrupica.com
Contact info:
Hughes Krupica Consulting
PHUKET (HEAD OFFICE)
Hughes Krupica Consulting Co. Ltd
23/123-5 Moo 2 Kohkaew Plaza
The Phuket Boat Lagoon
T. Kohkaew Amphoe Muang
Phuket 83000 Thailand
Tel: (0) 76 608 468
BANGKOK (SERVICED OFFICE)
Hughes Krupica Consulting (Bangkok) Co. Ltd
29/41 Soi Ladprao 22
Ladprao Road
Chankasem, Chatuchak
Bangkok 10900 Thailand
Tel: (0) 20 771 518
[email protected]
www.hugheskrupica.com
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