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Thai Law Insights

Urgent Work Permits for Meetings and Seminars: One step forward or one step back?

Patsaraporn Promkot

patsarapornp@csbc-law.com

On the 27th of March 2018, a new emergency decree dealing with Thai work permit law was announced to amend the Emergency Decree Governing Management of Foreign Employment of 2017 (henceforth referred to as the original emergency decree or original decree). Emergency decrees are passed by Executive Branch of government by virtue of Section 172 of the Thai Constitution (2017) for specific emergency situations. After issuance of an emergency decree, it must be approved by the National Legislative Assembly to become an Act. Once approval is given and the Prime Minister makes an official announcement, the emergency decree transforms into an Act (Though it is still referred to as an emergency decree).

This new emergency decree was created with the purpose of reducing the severity of punishments that expats faced for working without work permits, along with making it easier for foreigners to obtain work permits.

The main change found in this emergency decree deals with foreigners who wish to enter Thailand with the purpose of attending meetings or seminars for a short period. With the new decree, foreigners who wish to enter Thailand for the above specified purposes (meetings, lectures, etc.) will no longer be required to apply for work permits.

However, as of the time of writing, the vague wording of the emergency decree leaves it unclear as to what exactly constitutes the criteria listed (e.g. What is a meeting? Would a lunch with a potential client count?). The emergency decree states that a subordinate law is needed to explicitly clarify multiple points such as what constitutes a meeting or the specific length of time allowed for such meeting. Based on the author’s research and discussion with officials from the legal department of the Employment Department of the Ministry of Labor, such subordinate law to clarify this issue should be Notification from the Prime Minister’s Office, but such notification could take months or years to be released. Until the notification is released, foreigners attending the meeting or seminar may still be subject to the 15-day work permit. The new emergency decree is beneficial as it exempts non-governmental related meetings and seminars, something not existing in the ‘Royal Decree (No. 2) Issued in 1985 Governing Expats Engaging in Duties in Thailand Excluded from the Foreign Employment Act of 1978’ (“Royal Decree”) (Currently in force by virtue of the original emergency decree). [Note that per the existing Royal Decree, foreigners are exempt from the work permit process if they enter Thailand for the purpose of attending governmental functions for a period of no more than 30 days.]

Another change found in the new emergency decree deals with increased oversight to how relevant officials handle work permit applications. The new decree states that officials who fail to issue work permits without adequate reasoning (or for no reason at all) are deemed to be in breach of duty and will be punished accordingly. This is a clear deterrent to abuse of power. Furthermore, the official must complete the entire application process within 15 days (starting from the day when the application is filed). If the entire application process exceeds 15 days then an official internal investigation must be conducted to find the reason for such delay, with disciplinary measures taken accordingly. These changes are beneficial to foreigners as the officials should speed up the application process and help eliminate abuse of power scenarios, while bringing the application procedure in line with general principles of Thai administrative law. One of the principles of Thai administrative law is that officials must complete and handle applications in a timely manner in order to bring convenience to the people.

Overall, the new emergency decree is a huge net positive for foreigners who wish to enter Thailand to conduct business. Concerns stem from certain points of legal uncertainty. Even though a new emergency decree has come into force, no real effect has yet to occur. At the very least time constraints and increased oversight have been placed on relevant officials. A government initiative to make sure all relevant officials are knowledgeable regarding the new emergency decree and employ a standardized and consistent handling procedure will also greatly increase the effectiveness of the decree and ensure that foreigners can actually benefit from these changes.