Need advice/help: Stuck in an immigration loophole because of this emergency declaration

[Mikeinapac]

Hi have an urgent problem,
 

I arrived back in Bangkok on Thursday having just returned from Australia to finalise my work permit in getting a Non-B visa. Unfortunately the emergency declaration had been brought forward a day and it resulted in me getting pulled up by Immigration.

I have approval to work in Thailand, but need the TM6 card (immi stamped) to finalise the work permit process from the One Stop shop. However, Immi need the work permit to let me come back in. My company has tried working with Immigration and Labour department on this but have hit a chicken and egg situation where Immi dont want to give me the stamped TM6 card because the declarations says I need the work permit, and Labour dont want to issue my work permit without the stamped TM6 card.

I've been in Thailand on business visas for several months already for most of last year consulting for a company here that have now hired me.

I've already organised an apartment here mid last year as I knew this was coming and have already setup everything relocating the entirety of my life here in January from Singapore.

I dont have family in Australia and I was working in Singapore for eight years before giving up my residence there to move here and work in Thailand.

 

As another example, there is also a Thai permanent resident stuck at Suvarnabhumi airport too (Indian national though) who has been in Thailand for forty years, with family and everything who cannot enter because this edict doesnt allow for PRs. So her family (all Thai) are waiting for her at home.

I'm COVID-19 free for now, have all the medical checks, insurance, permissions and clearances needed, just not the physical card (TM6) to finalise my work permit process because that's what the policy says I need to have to enter - physical work permit. 

 

My company has a lot of contacts in Immi and Labour departments, but noone they know is game to sign to let me get either the WP or the stamped TM6. I've also got an immigration lawyer looking into this because it's a circumstance the decree didnt really allow for (I was flying when the decree was announced), evident in them completely disregarding permanent residences who have every right to be here also (presuming they meet the medical requirements of course like everyone else).

 

Appreciate any help on this, I have no where else to go to. I'm Tom Hanks'ing it at the airport current in the transit hotel but being here too long is also a risk, just as flying back to Australia is as well. I dont want to get sick because the decree was rushed and didnt consider all scenarios. I just want to go home to my apartment here in Bangkok and hide away like everyone else.

 

Greatly appreciate any advice or help, the lawyer said if she can't get a win on the grey route she is trying that I can appeal the decision which will take up to seven days. That might be enough time for the decree to be reissued to be better written, but I'm getting more and more anxious the longer I am here and at the thought of another ten hour flight.

 

Sincerely,

 

 

Mike

Edited March 28, 2020 by Mikeinapac
grammar corrections

[blackcab]

It won't help your situation, but the Department of Employment probably don't want to see a stamped TM6 card. What they want to see is your passport with an entry stamp in it.

 

This is because you need to be present in Thailand to submit your work permit application.

 

I have a work permit, and many, if not most of my TM6's over the years do not have a stamp on them.

 

Unfortunately you are stuck in between the cracks. You need to be within Thailand to apply for your work permit but you need a work permit to get into Thailand at the minute.

 

I think you are going to have to wait this one out because I really can't see immigration letting foreigners in without a work permit at the minute.

[DrJack54]

Good advice blackcab. Seems between rock and hard place. The "....wait this one out...." is a bit scary.

[ubonjoe]

43 minutes ago, Mikeinapac said:

I arrived back in Bangkok on Thursday having just returned from Australia to finalise my work permit in getting a Non-B visa. Unfortunately the emergency declaration had been brought forward a day and it resulted in me getting pulled up by Immigration.

I am a little confused. Where are you at now?

You cannot get a TM6 if you did not enter the country.

If not here they could do a WP3 application so that you could apply for a non-b visa at a embassy or consulate. But that would not resolve the entry problem unless a WP3 would be accepted instead of a actual work permit.

 

43 minutes ago, Mikeinapac said:

As another example, there is also a Thai permanent resident stuck at Suvarnabhumi airport too (Indian national though) who has been in Thailand for forty years, with family and everything who cannot enter because this edict doesnt allow for PRs.

Permanent residency is something that the government missed when they wrote the entry requirements. They should of been put under the same category as Thais are if they don't have a work permit.

[Mikeinapac]

4 hours ago, ubonjoe said:

I am a little confused. Where are you at now?

You cannot get a TM6 if you did not enter the country.

If not here they could do a WP3 application so that you could apply for a non-b visa at a embassy or consulate. But that would not resolve the entry problem unless a WP3 would be accepted instead of a actual work permit.

 

Permanent residency is something that the government missed when they wrote the entry requirements. They should of been put under the same category as Thais are if they don't have a work permit.

I'm in Suvarnabhumi currently living the Tom Hank's life but in the Transit Hotel at least..

Monday I've got my company and an immigration lawyer going to Labour minister to see if they can issue the work permit without needing the stamp. If that isn't successful, I can appeal through Immigration to get it in front of someone who can make a decision. The issue is the wording in the decree says on the PMs office can approve entry and noone wants to go against that unless it wont get them in <deleted> (that's why I got a lawyer heh).

I don't blame anyone except the person who wrote the decree that cleaarly didnt consider all scenarios. There is a person here as well who has a work permit but his family have the spouse visa or whatever it is called. He can get in, but they cannot. Really hope that something can be done before they make me leave the airport and head back to Oz...

 

[Mikeinapac]

5 hours ago, blackcab said:

It won't help your situation, but the Department of Employment probably don't want to see a stamped TM6 card. What they want to see is your passport with an entry stamp in it.

 

This is because you need to be present in Thailand to submit your work permit application.

 

I have a work permit, and many, if not most of my TM6's over the years do not have a stamp on them.

 

Unfortunately you are stuck in between the cracks. You need to be within Thailand to apply for your work permit but you need a work permit to get into Thailand at the minute.

 

I think you are going to have to wait this one out because I really can't see immigration letting foreigners in without a work permit at the minute.

Yea i'm not 100% certain of the requirements other than Labour want to see a stamp to give me the permit, and Immi won't give me the stamp without the permit.

The main hope is a loophole in the wording that states "...work permit OR approval to work.." that they Thai immigration lawyer told me. Technically a Non-B is approval to work, but they might want to see evidence of employment in another company which I dont have. They might also be willing to allow me through just based on the Non-B itself...if the Lawyer can give them enough of a legal buffer to feel safe and comfy, then hopefully this issue can be resolved. Otherwise I'll have a week to appeal and/or hope that the decree can be updated.

 

Lawyer is confident, so I remain optimistic. But will update as things change!

[blackcab]

33 minutes ago, Mikeinapac said:

Technically a Non-B is approval to work...

 

Technically it isn't. A Non-B visa gives you permission to present yourself at a border entry point where the immigration official will consider your application to enter the country and consider if you are suitably qualified to do so. A Non-B visa does not guarantee you entry unless you meet all other requirements.

 

An extension of stay based on working gives you permission to stay in the country until the expiry date of the extension. Once again, when used in conjunction with a re-entry permit the extension gives you permission to present yourself at a border entry point where the immigration official will consider your application to enter the country and consider if you are suitably qualified to do so.

 

A Non-B visa is granted by the Ministry of Foreign Affairs. The MFA does not grant permission to work. A Non-B extension of stay is granted by the Department of Immigration. The Department of Immigration does not grant permission to work.

 

The Ministry of Labour grants permission to work, and they have absolutely nothing to do with the Ministry of Foreign Affairs or the Department of Immigration.

[Mikeinapac]

2 hours ago, blackcab said:

 

Technically it isn't. A Non-B visa gives you permission to present yourself at a border entry point where the immigration official will consider your application to enter the country and consider if you are suitably qualified to do so. A Non-B visa does not guarantee you entry unless you meet all other requirements.

 

An extension of stay based on working gives you permission to stay in the country until the expiry date of the extension. Once again, when used in conjunction with a re-entry permit the extension gives you permission to present yourself at a border entry point where the immigration official will consider your application to enter the country and consider if you are suitably qualified to do so.

 

A Non-B visa is granted by the Ministry of Foreign Affairs. The MFA does not grant permission to work. A Non-B extension of stay is granted by the Department of Immigration. The Department of Immigration does not grant permission to work.

 

The Ministry of Labour grants permission to work, and they have absolutely nothing to do with the Ministry of Foreign Affairs or the Department of Immigration.

Non-B is a Business Visa. It entitles you to work in Thailand (not for a Thai company though) or do business.

So technically, it is. You cannot work or do business under the Visa Exemption or Tourist visa. Eg, you work for a company in Singapore, and come for a meeting and work on a project WITH a Thai company. You need a Non-B visa.

 

Non-B serves two functions. A business visa, and a gateway visa for the Work Permit. There's a TT1 or TT3 form/process that converts it to a Work Permit.

From the Immigration Lawyer. 

 

Edited March 28, 2020 by Mikeinapac

[blackcab]

2 hours ago, Mikeinapac said:

From the Immigration Lawyer

 

What you have said is factually incorrect. Perhaps you misunderstood your lawyer.

 

2 hours ago, Mikeinapac said:

You cannot work or do business under the Visa Exemption or Tourist visa. Eg, you work for a company in Singapore, and come for a meeting and work on a project WITH a Thai company. You need a Non-B visa.

 

This is incorrect. Based on the opinion of the Council of State, in 2015 the Ministry of Labour issued a notification specifying the following activities would not be considered as ‘work’ under the Act:

1. Attendance at meetings, discussions or seminars.
2. Attendance at exhibitions or trade exhibitions.
3. Visits to observe businesses or to meet for business dialogues.
4. Attendance at special lectures and academic lectures.
5. Attendance at technical training and seminars.
6. Purchasing of goods in trade exhibitions.
7. Attendance at board of directors meetings of one’s company.

 

You do not need a Non-B visa or a work permit to conduct the above activities.

 

2 hours ago, Mikeinapac said:

There's a TT1 or TT3 form/process that converts it to a Work Permit.

 

A Non-B visa is not "converted". It is the document that forms the basis of your entry into the country, as I detailed above.

 

I can assure you that a Non-B visa does not grant you permission to work. How could it? Work permits specify your employer; your employer's address; your job title; the type of work you are permitted to do; your job description and more (digital work permits show less information than the physical work permit books).

 

A Non-B visa has none of this information on it. Does that mean if you get a Non-B visa you can legally go and work anywhere you want, and do any job you want to, because you have no restrictions?

[Myran]

2 hours ago, Mikeinapac said:

Non-B is a Business Visa. It entitles you to work in Thailand (not for a Thai company though) or do business.

So technically, it is. You cannot work or do business under the Visa Exemption or Tourist visa. Eg, you work for a company in Singapore, and come for a meeting and work on a project WITH a Thai company. You need a Non-B visa.

 

Non-B serves two functions. A business visa, and a gateway visa for the Work Permit. There's a TT1 or TT3 form/process that converts it to a Work Permit.

From the Immigration Lawyer. 

 

A visa doesn't entitle you to anything. It's basically a document stating that you seem to live up to the requirements for a specific type of entry, but it's not a permit or a guarantee.

[ubonjoe]

I wonder if getting a 15 day work permit issued for urgent work would be accepted by immigration for entry to the country.

No need for a entry stamp or TM6 card. Only a copy of your passport and non-b visa.

Form and requirements are here: https://www.doe.go.th/prd/assets/upload/files/alien_en/3ce03a7d9178d0ca0ff302a45e8b11e7.pdf

[Mikeinapac]

2 hours ago, ubonjoe said:

I wonder if getting a 15 day work permit issued for urgent work would be accepted by immigration for entry to the country.

No need for a entry stamp or TM6 card. Only a copy of your passport and non-b visa.

Form and requirements are here: https://www.doe.go.th/prd/assets/upload/files/alien_en/3ce03a7d9178d0ca0ff302a45e8b11e7.pdf

Would ask the lawyer about that, if it can be converted, but would be a stretch that the work was urgent though unless it could be tied to the crisis currently.

As it stands there's a loophole on the TT3/WP3. There's nothing that says it must be applied for before granting the Non-B, only that it should be done "before entering Thailand". Apparently this approach is ok, but will know more Monday. 

The decree states "work permit OR approval to work". The TT3/WP3 is the "..OR approval to work" part. Having a lawyer involved means the officers just following the rules dont have to make a call themselves. and the lawyer is saying this is all valid but will depend on Labour department ultimately.

[Mikeinapac]

14 hours ago, blackcab said:

 

What you have said is factually incorrect. Perhaps you misunderstood your lawyer.

 

 

This is incorrect. Based on the opinion of the Council of State, in 2015 the Ministry of Labour issued a notification specifying the following activities would not be considered as ‘work’ under the Act:

1. Attendance at meetings, discussions or seminars.
2. Attendance at exhibitions or trade exhibitions.
3. Visits to observe businesses or to meet for business dialogues.
4. Attendance at special lectures and academic lectures.
5. Attendance at technical training and seminars.
6. Purchasing of goods in trade exhibitions.
7. Attendance at board of directors meetings of one’s company.

 

You do not need a Non-B visa or a work permit to conduct the above activities.

 

 

A Non-B visa is not "converted". It is the document that forms the basis of your entry into the country, as I detailed above.

 

I can assure you that a Non-B visa does not grant you permission to work. How could it? Work permits specify your employer; your employer's address; your job title; the type of work you are permitted to do; your job description and more (digital work permits show less information than the physical work permit books).

 

A Non-B visa has none of this information on it. Does that mean if you get a Non-B visa you can legally go and work anywhere you want, and do any job you want to, because you have no restrictions?

Very good chance I may have misunderstood them ????

However over the last several years I've spent about 50% of my time on business in and out of Thailand, and that came from the Immigration head at the airport. The Exemption is only for rare circumstance, the Non-B is what I should be getting (multiple entry) that allows me to do business in Thailand. Tourist visa definitely cannot. Exemption is just occassional use.

 

Regardless, the Non-B doesnt qualify under the "..OR approval to work" part as from the PMs office its only the work permit or TT3 that qualifies. Non-B allows you to "conduct business", which they blocked.