On 5 October 2021, Coordinator and lawyer of the Human Rights and Development Foundation (HRDF) has gone to the Bang Khen Immigration Detention Center to pick up Ms. P, a female migrant worker from Myanmar, who had been remanded in custody being accused of being an alien and worked without the permit, an offence against the Royal Ordinance Concerning the Management of Foreign Workers’ Employment 2017.
She could face up to a fine of 50,000 baht and be barred from working in the Kingdom of Thailand for the period of two years.
Background of the case
- On 22 June 2021, officials from the Bangkok Office of Employment Region 2 and the Bangkok Internal Security Operations Command have conducted a labour inspection in the company where the female migrant worker, Ms. P, worked. After finding her work permit had expired, they charged her for being an alien and working without a permit an offence against the Royal Ordinance. The police later fined her and had her held in custody pending the process of deportation.
- After reviewing concerned information and documents, HRDF has found Ms. P was a legally registered migrant worker recruited through the Government-to-Government MoU and her work permit had expired on 20 February 2021, She has since applied to renew her work permit with the Bangkok Office of Employment Region 2 before the expiry date of her permit. The renewal could not be completed, however, since the official could not retrieve her information from the depository of migrant workers.
HRDF has thus coordinated with concerned agencies as follows;
The Immigration Bureau was asked to discharge Ms. P from custody since she was among the migrant workers who benefit from the waiver made possible by the Ministry of Interior’s Notification on permission for certain groups of migrants including migrants from Cambodia, Laos and Myanmar to continue staying in the Kingdom on a special basis amidst the Covid-19 pandemic dated 3 August 2021. It basically allowed migrant workers whose work permits have expired between 1 January to 3 August 2021 to continue living in Thailand temporarily and they are required to renew their work permits within 2 December 2021.
In its reply on this case, the Immigration Bureau, however, states that Ms. P is not a migrant as defined in the Notification.
The Department of Employment: We sought an urgent discussion whether Ms. P is a worker who enjoys a waiver pursuant to the Ministry of Interior’s Notification or not. On 15 September 2021, the Department of Employment replied in a letter that Ms. P has pled guilty for being an alien and working without the permit and even though her employer has filed the application on her behalf to renew her permit, but the registrar was unable to grant her the permission to work.
HRDF has further clarified to the Department of Employment that Ms. P has filed an application to renew her work permit before its expiry date. In its written reply on 28 September 2021, the Department states that Ms. P has applied to renew her work permit and the Bangkok Office of Employment Region 2 has been instructed to renew her work permit and to coordinate with the Immigration Bureau to have her released from custody. Even though Ms. P has already applied to renew her work permit before its expiry date as required by Section 64/1 of the Royal Ordinance Concerning the Management of Foreign Workers’ Employment 2017 and the registrar has yet renew it for her, she still retains the right to continue working until the registrar eventually decides to not renew her work permit pursuant to Section 67/2.
In such case, Ms. P should not be held accountable for an offence of being an alien and working without the permit, an offence against Section 8 which is punishable according to Section 101 of the Royal Ordinance and its amendments.
Therefore, the Department of Employment has thus instructed by letter for the Bangkok Office of Employment Region 2 to review and renew the work permit to allow her to resume her work. The letter has since been furnished to the inquiry official to further information the Immigration Bureau to have her released from custody. HRDF’s staff have gone to pick up Ms. P at the Immigration Detention Center and coordinate with her employer to reinstate her as an employee.
Acting Sub Lt. Watchirawit Wutthipatchara, lawyer from the Human Rights and Development Foundation (HRDF)’s Chapter in Samut Sakhon, comments that this case reflects the flaws of the documentation system of the renewal of work permit and employment of the migrant workers, particularly during the Covid-19 pandemic which has become an obstacle for the migrant workers to renew their work permits. Such flaws have made the migrant worker a victim being deprived of her liberty and rights even though she has done nothing wrong.
Ms. P should therefore be entitled to a compensation from concerned agencies since the case has stemmed from the erroneous action of the officials who have failed to properly review their information even though the application to renew the work permit has been filed before its expiry date as attested to by the receipt issued by the agency itself.
Previously, there have been complaints from a number of migrant workers in various areas who were unable to renew their work permits since the information about their employment and their renewal of work permit has not been properly recorded.
The Department of Employment was thus asked to inform the Offices of Employment in all areas to ask all in-charge officials to properly record all the employment information of the migrant workers immediately upon the filing of application or relevant procedures. This will prevent any unintended consequences and the arrest in such case. This will fulfill the spirit of the Ministry of Labour which wants to reform the relevant law and policy concerning the management of migrant worker to make them compatible with the General principles and operational guidelines for fair recruitment by the International Labour Organization (ILO) and Thailand was part of the drafters of the principles.