National Policies
Thailand: Migrants Barred from Regularity
Thailand: Laws on Deportation
Laws of Thailand
Countries of Origin: Laws and Policies
Thailand: Migrants Barred from regularity
Migration into Thailand is governed by the Immigration Act BE 2552 (2009), the Alien Employment Act BE 2551 (2008) and a series of Cabinet Resolutions issued since 1992. Successive Thai governments have taken a three track approach in response to the immigration of undocumented migrants from neighbouring countries by (a) allowing irregular migrant workers to register for a limited period of work in certain sectors (b) arresting and deporting migrant workers without registration documents and (c) attempting to contain migration and discourage movement to central Thailand by creating work sites or economic zones in the border areas.
In the past decade, Thailand has signed MOUs with Burma, Cambodia and Lao PDR on the regulation of migrant labour. The aims of the MOUs are (1) to ensure that the migrant’s country of origin provides travel documents to nationals already in Thailand and (2) to enable new migrants to migrate to Thailand through legal channels. Despite many set backs with the implementation of the MOUs, the Thai government is continuing its efforts on this process.
Participation in the MOU process is complex, expensive and time consuming for all concerned. In order for migrants to receive a work permit, they must first undergo a process of nationality verification to be issued a temporary identification card or passport and health insurance. Each stage incurs a cost for the migrant – the costs of the document, travel and time away from work. Employers and migrants are using private brokers to facilitate the process, further increasing the financial burden. Only migrants currently registered in Thailand, with enough money and time and a willing employer can hope to be regularised, but even then a lack of administrative capacity in sending countries has hugely delayed the process. This combination of factors has created frequently insurmountable barriers to regularisation under the MOUs and may have the perverse effect of increasing the number of irregular migrants and stateless persons in Thailand.
All migration policies have left migrants insecure and only enabled temporary regularisation. Since 2010, migrants registered under the MOU process have been allowed to work for two years and apply for a two year extension. At the end of four years, the migrants are required to return to their country of origin and are not allowed to work in Thailand for three years. Under previous registration exercises, migrants were able to register for set periods of between three months and two years.
Migrants who have registered for temporary workers’ cards are subject to considerable restrictions, including being denied freedom of movement, and being bound to a single employer. These migrants must request permission from local authorities to travel outside the area where they are registered. As well as violating a fundamental human right, the restriction on mobility creates labour market imbalances as migrants are unable to move to areas where work is available. Consequently, seasonal workers will stay in place when the season is over, creating an over-supply of workers and driving wages down in some areas. While the lifting of mobility restrictions for migrants entering Thailand under the MOU process is a welcome improvement, workers are still bound to a single employer meaning labour market mobility is still strictly controlled. Mobility restrictions leave registered migrants vulnerable to arrest and deportation. If a migrant needs to travel to a different area, for example if they are subcontracted to a different work site or need to visit a hospital, they can only do so clandestinely. The death of migrants who have suffocated in trucks transporting them from one area to another is a direct consequence of restrictions to their freedom of movement.
The status of migrant workers’ families remains even more vulnerable than that of the workers’ themselves. The existence of dependents has only been recognised occasionally, leaving families in constant uncertainty and instability. All children, regardless of legal status, are allowed to attend Thai schools and to register for a ten year status while studying . In contradiction to this, however, the MOU process makes no provision for dependents of migrant workers. Thus, within a single migrant family, each member could hold a different legal status, possibly leading to separation in raids and deportation.
Thailand: Laws on arrest
Thailand’s 2007 Constitution provides some protection in the areas of arrest and detention. Section 32 guarantees the right to liberty in “life and person” and prohibits torture, brutal acts and cruel and unusual punishment. It also provides that arrest and detention can only be made under legal grounds or with a warrant issued by a court of law and that if a person’s right to liberty is impinged they have the right to challenge the lawfulness of that impingement before a court of law.
Arrest and detention of non-citizens are also regulated by the 2009 Immigration Act, the 2008 Alien Employment Act, and a number of official orders. Under the Immigration Act, any non-citizen who does not have a residence certificate or documentation proving regular entry is considered to have entered Thailand illegally (Section 58). Non-citizens whose immigration status is irregular or suspected to be irregular can be arrested, detained for interrogation or deported by a competent official (Section 29). The 2008 Alien Workers Act provides that officials can arrest a migrant worker who does not have a work permit when the official has ordered the migrant to report to the police station but the migrant has resisted or attempted to escape. In this case, the official does not require an arrest warrant (Section 50). The Anti-trafficking in Persons Act BE 2551 (2008) also provides grounds for arrest without warrant when there are reasonable grounds to believe there is a case of trafficking and the delay resulting from obtaining a warrant will result in destruction of evidence or harm or concealment of the suspected victim of trafficking (Section 27).
People have the right to be informed of the reason for their arrest and the charges against them (the Constitution, Section 237and the Criminal Procedure Code, Section 84). While detained or held under arrest, the Criminal Procedure Code also grants detainees with the right to a lawyer and private consultation, other visits and to receive prompt medical treatment if they fall ill; administrative or police officials in charge of the detainee are obliged to inform detainees of their rights (Criminal Procedure Code, Section 7 bis).
Thailand: Laws on Detention
Migrants can be detained under the broad discretionary powers conferred by sections 19 and 20 of the Immigration Act. Under these provisions, “competent officials” have the authority to detain non-citizens. Once detained, there is no legal limit to the length of detention permitted. Following initial limits on detention of 48 and then seven days, detention can theoretically be extended indefinitely by application to a court every 12 days (Immigration Act, 2552, Sections 19-20).
Powers on arrest and detention have recently been supplemented by the 2010 Order regarding the suppression, prosecution and arrest of migrants working underground issued by the Prime Minister’s Office (No. 125/2553). The order mandates special cooperation on immigration enforcement between the Ministry of Labour, Ministry of the Interior, Office of the Royal Thai Police Force, the Army and Navy. Cooperation of the police and armed forces in the apprehension and detention of migrants lacks of operational transparency and has led to concerns about the treatment of migrants in detention.
A disturbing feature of registration periods has been the way in which they have been followed by harsh crackdowns on undocumented migrants. For example, in April 2010 it was announced that there would be no new registrations and a period of open hostility towards migrants commenced, supported by several directives announcing crackdowns and deportations. Ranong province, in particular led the way in treating unregistered migrants as criminals, and in 2010 set up an armed task force to control them.
In terms of sanctions for breaches to immigration regulations, if a case is processed formally through the court system, the Alien Employment Act specifies that irregular migrant workers are subject to a period of imprisonment of up to five years and/or a fine of between 2,000 and 100,000-baht. Further, if the migrant agrees to return voluntarily to their country of origin, the prison sentence may be waived (Section 51). The Immigration Act specifies that when an order of deportation has been issued for a non-citizen, detention is not always required. The non-citizen can be ordered to stay in a specific location, or issued a bond and required to report to an official at a set time and place. However, officials can decide to detain non-citizens “at any given place as may be necessary” (Section 54). Significantly, the Immigration Act holds that “the expense of detention shall be charged to the alien’s account” (Section 54).
Under the Anti-Trafficking in Persons Act, people suspected of being victims of human trafficking can be held in custody in order to clarify facts surrounding their case. An initial period of 24 hours in custody can be extended by seven days with permission of a court. While in custody, people thought to be victims of trafficking are to be held in an “appropriate place, which shall not be a detention cell or prison” while taking into account “all human rights principles” (Section 29).
In a report to the UN Human Rights Committee in 2004, the Thai government stated that official policy was to separate detainees according to sex, age and conviction status. So men, women and children are to be held separately, as well as unconvicted and convicted detainees. The report notes, however, that overcrowding in the prison system makes segregation very difficult in practice.
Thailand: Laws on Deportation
Deportation is regulated under the Immigration Act, and can be enforced when a non-citizen has entered Thailand “without permission or when such permission expires or is revoked” (Section 54). Deportation can take any means or route considered “appropriate” by the authorities, although if a non-citizen prefers to take a different route they can pay to do so (Section 55). The cost of deportation is a blurred area under the law. Section 55 of the Immigration Act specifies that the cost should initially be borne by “the owner or person in charge of the conveyance which brought the alien into the Kingdom”, if there does not appear to be such a person, the deportee ”will have to pay the expense of deportation”. At the same time, the 2008 Alien Employment Act provided for the creation of a deportation fund (Section 29), which is to cover deportation costs when workers are to be deported from Thailand (Section 20), although payments into the fund have been deferred until March 2013.
The Anti-Trafficking in Persons Act holds that victims of trafficking should be returned to their country of “residence or domicile without delay”, unless they are allowed permanent residence in accordance with immigration law, or in exceptional cases they are granted relief by the Minister of the Interior (Section 38). This controversial clause has been tempered by a Cabinet Resolution passed on 4 May 2010 requesting Ministries to develop guidelines on the temporary stay and work of victims of trafficking. Advocacy groups had been calling for victims of trafficking to be granted access to the same legal status available to other migrants and that they be made eligible for a temporary passport and the right to work in all sectors available to other migrants. The resulting regulation issued by the Ministry of the Interior in 2012 provided, however, that victims of trafficking could remain in Thailand for the duration of legal trials, medical treatment and rehabilitation. During this period, which must not exceed six months, they could apply for a work permit to work in domestic work or manual labour.
Laws of Thailand
Constitution of Kingdom of Thailand (English) [PDF]
Source: Office of the National Human Rights Commission of Thailand http://www.nhrc.or.th/2012/wb/en
Constitution of Kingdom of Thailand (Thai) [PDF]
Source: Office of the Council of State http://www.krisdika.go.th
Immigration Act B.E. 2522 (English) [PDF]
Source: The Immigration Bureau http://www.immigration.go.th
Immigration Act B.E. 2522 (Thai) [PDF]
Source: Office of the Council of State http://www.krisdika.go.th
Foreign Working Act B.E. 2551 (English) [PDF]
Source: Office of Foreign Workers Administration http://wp.doe.go.th/sites/eng/index.html
Foreign Working Act B.E. 2551 (Thai) [PDF]
Source: Office of the Council of State http://www.krisdika.go.th
Anti-Trafficking in Person Act B.E. 2551 (English) [PDF]
Source: United Nations Inter-Agency Project on Human Trafficking: UNIAP http://www.no-trafficking.org/resources_laws_thailand.html
Anti-Trafficking in Person Act B.E. 2551 (Thai) [PDF]
Source: Office of the Council of State http://www.krisdika.go.th
Act on Confinement Procedure under Penal Code B.E. 2006 (Thai) [PDF]
Source: Office of the Council of State http://www.krisdika.go.th
Deportation Act B.E. 2499 (English) [PDF]
Source: International Labour Organization http://www.ilo.org/dyn/natlex/natlex_browse.home
Deportation Act B.E. 2499 (Thai) [PDF]
Source: Office of the Council of State http://www.krisdika.go.th
Countries of Origin: Laws and Policies
Burma/Myanmar
Constitution of the Republic of the Union of Myanmar (English) [PDF]
Source: Online Burma/Myanmar Library http://www.burmalibrary.org/show.php?cat=1140
Constitution of the Republic of the Union of Myanmar (Burmese) [PDF]
Source: Online Burma/Myanmar Library http://www.burmalibrary.org/show.php?cat=1140
Cambodia
Constitution of the Kingdom of Cambodia (English) [PDF]
Source: Constitutional Council of Cambodia http://www.ccc.gov.kh/english/index.php
Law on Nationality (English) [PDF]
Law on Suppression of Human Trafficking and Sexual Exploitation (English) [PDF]
Source: United Nations Inter-Agency Project on Human Trafficking: UNIAP
http://www.no-trafficking.org/cambodia_laws.html
Law on Immigration (English) [PDF]
Source: United Nations Inter-Agency Project on Human Trafficking: UNIAP
www.no-trafficking.org/content/pdf/law_on_immigrationeng.doc
Lao PDR
Constitution of the Lao People’s Democratic Republic (English) [PDF]
Source: Ministry of Finance http://www.mof.gov.la/?q=en/docarc/Law
Law on Criminal Procedure 2004 (English) [PDF]
Source: Source: The National Assembly of the Lao People’s Democratic Republic http://www.na.gov.la
Law on Criminal Procedure 2004 (LAO) [PDF]
Source: The United Nations Inter-Agency Project on Human Trafficking: UNIAP
http://www.no-trafficking.org/lao_laws.html
Law on the Development and Protection of Women 2004 (English) [PDF]
Source: Source: The National Assembly of the Lao People’s Democratic Republic http://www.na.gov.la
Law on the Development and Protection of Women 2004 (LAO) [PDF]
Source: The United Nations Inter-Agency Project on Human Trafficking: UNIAP
http://www.no-trafficking.org/lao_laws.html
Labour Law (Amended) 2006 (English) [PDF]
Source: The National Assembly of the Lao People’s Democratic Republic http://www.na.gov.la
Labour Law (Amended) 2006 (LAO) [PDF]
Source: The United Nations Inter-Agency Project on Human Trafficking: UNIAP
