Special Report: Permission to function in Phuket

Special Report

PHUKET: The separate arrests of a German man and a Swiss man at their homes in Chalong late last month (story here) by Immigration officials sent a chill through the law-abiding expat community in Phuket.

The two men were arrested despite their protests that they were each building their own boat for their own private use.

The Phuket Gazette was told both men were subjected to a fine, allegedly 60,000 baht apiece, and then released. As one of the two men survives on a meager pension, he had to borrow the money to gain his freedom.

At the time of the arrests, no officers at Phuket Immigration were willing to comment about either case. Instead, officers said Phuket Immigration chief Sunchai Chokkajaykij – who was in Bangkok at the time – was the only person with the authority to speak about the incident.

On receiving a call from the Gazette that same day, Col Sunchai terminated his conversation before our reporters could ask him whether or not he was aware of the arrests of the two men.

The next day, Phuket Immigration’s Capt Angkarn Yasanop called the Gazette to vehemently deny that the German and Swiss nationals were fined, attesting that they were arrested for overstaying their visas, but later set free.

“We received a tip-off from our undercover immigration officers that the two men were overstaying their visas. When our officers went there [to the men’s homes], the two men could not present them any documents,” he said.

Capt Angkarn did not make it clear whether the “documents” he was referring to were the men’s passports or work permits, or both.

“The men were taken to Phuket Immigration [in Phuket Town], but later when a lawyer turned up, we released them,” he said.

Capt Angkarn did not comment on why immigration officers did not check the national database to confirm immigration’s own records of the men’s legal status, before placing the retirees under arrest and taking them to the immigration office in Phuket Town.

By then, however, news of the arrests had spread throughout Phuket’s expat community. A flurry of comments posted on the Gazette website highlighted the dangerous “catch all” wording of the law that empowers officers to arrest any foreigner at anytime for literally anything.

The Alien Working Act 2551 (2008), according to the version listed on the International Labour Organization (ILO) website – no official versions of the law are available in any language other than Thai – explains the definition of work as: working by physical strength or knowledge whether or not intended for wages or any other benefits.

However, Yaowapa Pibulpol, chief of the Phuket Provincial Employment Office, the government office established to specifically regulate and administer employment law, maintained that the wording does not allow officers to apply the law beyond its intended scope.

“Foreigners cannot perform any work – in the true sense of the word – without a work permit. And they may only perform the work listed in the work permit and only at the place of work listed in the permit.

“But that doesn’t mean they can’t cook their own meals, clean their own houses or tend to their own gardens. Of course they can, but as soon as they are hired or profit by doing any of these things, they are ‘working’,” she said.

“And any foreigners who want to build their own boats on their own time, using their own skills and experience, for their own personal use are not breaking the law. They can do this, but they cannot build a boat so they can sell it later on. That would be profiting from the work,” Ms Yaowapa added.

Not applying the law beyond its intended scope is also what makes it legal for foreigners to assist in public cleanup campaigns and other community projects – as long as the volunteer work is not regular, she added.

“Being a volunteer for an organization requires a work permit. This is because although you might not get money from the volunteer work, you might get food or a place to stay as a reward. So if you do not have a work permit, you are illegal,” Ms Yaowapa said.

Meanwhile, Capt Angkarn at Phuket Immigration says the raids will continue, especially now that the number of officers at his disposal have been doubled.

“Previously, Phuket Immigration had only 20 officers. Then, in July, more officers arrived and now we have 40. This has made it easier to be more effective in our work, and this is why people are now hearing about more raids being conducted,” Capt Angkarn said.

“When investigating a foreigner, we check five points: 1) They have their passport with them; 2) Their visa is still valid; 3) They have a work permit; 4) The job and the workplace cited in the work permit match what they are actually doing as work; and 5) They are not performing work that foreigners are prohibited from doing by law,” he said.

Russians, Chinese and Australians are trending as the most likely to be caught, said Capt Angkarn, but only because there are large numbers of each on the island.

“We are not targeting any particular group of foreigners, but as many people of those nationalities come to Phuket, they are more likely to be subjected to a raid, and therefore more likely to be caught compared with other nationalities,” he added.

In making work permit arrests, immigration officers often co-ordinate their efforts with the Phuket Employment Office, Capt Angkarn explained.

“The authority of arrest is ours, so officers from the Employment Office do not join us during raids,” he said.

“However, we work together to share information. Sometimes they give us tip-offs about foreigners suspected of working or staying in the country illegally, and we go and arrest them. Sometimes, when we arrest foreigners, we have to check back with the Employment Office to make sure information about the foreigners is accurate.

“The Phuket Employment Office also conducts their own raids, but since they do not have many officers, they cannot do this often. Most of the raids are conducted by us instead,” he added.

In arresting foreigners on work permit and visa overstay charges, it is standard procedure for immigration officers to present the suspects to the nearest police station for processing, Capt Angkarn explained.

“When we make an arrest, we hand the suspect over to the local police station. The police investigator questions both the immigration officer who made the arrest and the suspect, and collects any evidence seized.

“If the police investigator proceeds with pressing charges, the case file is sent to the prosecutor and the prosecutor submits it to the court.

After the court hands down its verdict, and its sentence, the foreigner is returned to the police station where he was charged, then the police investigator hands custody of the foreigner over to Phuket Immigration.

Foreigners have the right to appeal the verdict, just as with any other court case, Capt Angkarn explained.

“They can file a complaint to the Court of Appeals if they are dissatisfied with the verdict or sentence,” he said.

However, if the foreigner does not contest the court’s decision, the standard procedure is deportation.

“We will send the foreigner to the Immigration Bureau in Bangkok, where the foreigner’s name is added to the immigration blacklist before he is deported out of the country,” Capt Angkarn said.

— Gazette Reporters