Tag: Foreign Working

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Suspension of the Incentives for Owning Lands by Foreigners in Thailand

On 21 January 2022, it is official that the incentives for foreigners owning the lands and real estates in Thailand has been halted. It was previously controversial that the governmental body for economy drive under the Covid-19 situation is deliberating the additional incentives for foreigners to own the lands and real estates in Thailand (the “New Incentives”).

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Prior to the deliberation on the New Incentives, foreigners, mostly individuals, are not permitted to own the lands in Thailand under general circumstances. Foreigners residing in Thailand are permitted to own only residential units in apartments or condominium with the regulated ratio that the foreign ownership in any specific condominium must not exceed 49% of the total space. The leasehold up to 30 years is also another option permitted by the laws.

Until late 2021, the economy driving body has proposed to deliberate on the New Incentives with details as follows:

  1. Lifting 49% restriction foreign ownership in condominium – this incentive is later halted due to the requirement to amend the Building Control Act B.E.2522. The amendment process will take approximately 1 year which will not be a swift action to tackle to economic crisis;
  2. Extending the leasehold from 30 years to 50 years – this incentive is not practicable. The 30-year leasehold is currently legitimated under the Thai Civil Commercial Code. The extension of the leasehold by foreigners to 50 years may require amending on Civil Commercial Code or passing a new act with a specific purpose to extend the timing limit of the leasehold by foreigners. This is not the swift response to spontaneous economic crisis; and
  3. Permitting foreigners to own the land for a space not more 1 rai (approximately 1,600 sq.m) – the responsibilities lie upon Department of Lands to work on the legitimation and the existing land laws of this incentive. As it is a sensitive issue, this incentive is now also suspended. 
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The ownership of lands/real estates by foreigners in Thailand for residential purpose is still under the existing options stated above. For the business and commercial purpose, the land ownership by foreigners is based on the similar principles. It is however can be slightly different depending on the type of business which require specific consultations with competent bodies and authorities.

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Announcement of the Ministry of Labor on Permission for Foreigners to Work in the Kingdom as a Special Case according to Economic and Investment Stimulus Measures by Attracting High Potential Foreigners to Thailand

To implement the Cabinet Resolution on December 7, 2021, the Cabinet, on January 18, 2022, has approved the draft Announcement of the Ministry of Labor on Permission for Foreigners to Work in the Kingdom as a Special Case according to Economic and Investment Stimulus Measures by Attracting High Potential Foreigners to Thailand (“Announcement”) which has the main principle of allowing foreigners and their spouses, according to the Draft Announcement of the Ministry of Interior on Permission of Certain Groups of Foreigners to Stay in the Kingdom as a Special Case, to work in the Kingdom as a special case in response to the government’s measures on economic and investment stimulus that will result in more domestic spending as well as bring the positive outcome to the entrepreneurs. These will generate solid income for people and workers and  lead to more investment and enable Thailand to have more specialists in various fields in which it  will be benefit to the country’s economy. The main points of this Announcement are as follows:

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  1. Defining the term “Foreigner” as a foreigner and its dependent who is a foreigner’s spouse in compliance with the Draft Announcement of the Ministry of Interior on Permission of Certain Groups of Foreigners to Stay in the Kingdom as a Special Case according to Economic and Investment Stimulus Measures by Attracting High Potential Foreigners to Thailand
  2. Stipulating that the foreigner can apply for a work permit in accordance with the law on foreign working management. Once, the foreigner has submitted an application, such foreigner will be allowed to work for the time being without a work permit.
  3. The duration of the work permit is as follows:
    • In case the foreigner works with its employers, the work permit shall be valid in the same period as the employment contract but not more than 5 years from the date of issuing of such work permit. The foreigner can renew its work permit to be in accordance with the duration of its employment contract but not more than 5 years at each time.
    • In case the foreigner works without any employer, the work permit shall be valid for the period as requested by the foreigner but not more 5 years from the date of issuing of such work permit. The foreigner can renew its work permit according to the period as requested by the foreigner but not more 5 years at each time.
  4. Permission for the foreigner to work shall be expired when the permission to stay in the Kingdom has expired according to the Draft Announcement of the Ministry of Interior on Permission of Certain Groups of Foreigners to Stay in the Kingdom as a Special Case, e.g. the foreigner acts against the Announcement of the Ministry of Interior, is lack of qualifications required by law, or is believed to behave as a threat to society, etc.

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The Cabinet has approved for a Draft Notification of the Ministry of Interior Re: Permission for Certain Groups of Aliens to Remain in the Kingdom as a Special Case (“Draft Notification”) as proposed by the Royal Thai Police in order to assist the aliens extending their permission to stay in the Kingdom temporarily due to Covid-19 pandemic situation.

The groups of aliens permitted to extend their stay in the Kingdom under the Draft Notification are as follow:

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  1. Aliens holding non-immigrant visa (include visa on arrival).
  2. Aliens allowed to stay in the Kingdom temporarily under the visa waiver program according to Section 13 of the Ministerial Regulations on Guidelines, Methods and Conditions for Examination, Exception and Change of Visa Type B.E. 2545 and its amendments.
  3. Aliens allowed to stay in the Kingdom temporarily under the Petroleum Act B.E. 2514 and its amendments, Investment Promotion Act B.E. 2520 and its amendments, Industrial Estate Authority of Thailand Act B.E. 2522 and its amendments or related notifications of the Ministry of Interior and that the period of permission for staying in the Kingdom will be expired on the date that this Draft Notification becomes enforced, such aliens will be allowed to extend their  period of remaining in the Kingdom until 31 December 2021.
  4. Aliens allowed to stay in the Kingdom more than 90 days and the notification for such 90 days period will be reached on the date that this Draft Notification becomes enforced, such aliens will be allowed to extend their notification until 31 December 2021.

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On 19 October 2021, The Cabinet has approved in principle of the draft Notification of the Ministry of Interior regarding the Permission of Foreigners Granted Thailand Privilege Card to Stay in Thailand for Working as a Special Case (“Draft Notification”) and the draft Rules and Conditions for Allowing Foreigners Received Thailand Privilege Card to stay in Thailand for Working as a Special Case (“Draft Rules and Conditions”) as proposed by the Ministry of Tourism and Sports and considers this matter as an urgent matter.

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The main points of the 2 drafts are as follows:

  • Draft Notification
    1. The aliens who receive Thailand Privilege Card under the conditions as specified in  the Ministry of Interior’s Notification regarding permission of certain classes of aliens to stay in Thailand as a special case dated 22 February 2013 and have minimum investment of USD 1,000,000 per year, in a specified business, including their spouses and their under-20-year-old children, can request to change the type of visa to Non-Immigrant Visa for a term of 5 years throughout the investment period in the Flexible Plus Program.
    2. The aliens whom their types of visa have been changed as mentioned above, can apply for a work permit under the law on foreigners working management.
    3. The termination of the permission of aliens and their dependents to stay in Thailand according to this Draft Notification is under one of the following cases:
      • The minimum investment, in a specified business, does not reach USD 1,000,000 within one year from the date of entering into the program;
      • The work permit has been terminated under the law on foreigners working management; or
      • Such aliens have presumably into believing that their behavior that is danger to society, have been issued a warrant of arrest by a foreign government, being deported by the Thai government or foreign governments, or being revoked the right to stay in Thailand.
  • Draft Rules and Conditions
    1. Aliens must be a special member holding Thailand Privilege Card:
      • For the remaining members, Thailand Privilege Card must be validity at least 5 years; or
      • For the new members, they must apply for Thailand Privilege Card with a minimum card value of 1 million Baht and the validity of the card is for more than 10 years.
    2. An alien must receive a special Privilege Entry Visa (PE).
    3. An alien must invest in Thailand within 1 year from the date of requesting to join the Flexible Plus Program or from the date of approval to be a special member with a total investment value not less than USD 1,000,000 which consists of 3 types:
      • Investment in real estate according to the rights of foreigners;
      • Investment in a limited company or a public limited company; or
      • Investment in stock exchanges such as ordinary shares, debentures, or investment units which has been approved by the Securities and Exchange Commission.
    4. An alien must have all qualifications under the law on foreigners working management.

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On 29 September 2021, the Cabinet has approved a draft Announcement of the Office of the Prime Minister and the Ministry of Interior (MOI) regarding Limitation of Numbers of Alien Annually having residence in Thailand as proposed by MOI.

The aliens under nationality of each country having residence in Thailand of the year 2021 will be limited to not exceeding 100 persons per country and stateless aliens will be limited to not exceeding 50 persons.

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This Announcement is structured to be in accordance with Section 40 paragraph one and Section 41 of the Immigration Act B.E. 2522 (1979) and Section 5 paragraph one of the Immigration Act B.E. 2522 (1979), as amended by the National Council for Peace and Order Announcement No. 87/2557 dated 10 July 2014.

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Elite Membership is one of the visas schemes for tourists managed by the Tourism Authority of Thailand (“TAT”) having varieties of package ranging from 5-10 years of membership.

TAT has proposed for extending its privileges to the Cabinet for approval in order to magnetize wealthy foreigners around the world to visit and stay in Thailand for long term periods.

On 8 June 2021, the Cabinet approved in principle for such proposed Flexible Plus Program as one of the national economic reliefs responding to the effect from Covid-19 pandemic. The Thailand Flexible Plus Program has 4 target groups, i.e. Wealthy Global Citizen, Wealthy Pensioner, Work-from-Thailand-Professional, and High-Skilled Professional.

Details of the project after working with the working team under supervision of the Deputy Prime Minister Supattanapong Punmeechaow was referred to the Cabinet but was rejected by the Secretariat of the Prime Minister thereafter. The Secretariat of the Prime Minister deemed that the matter is related to the Ministry of Interior and, therefore, ordered the TAT to schedule a meeting for further discussions in which the meeting was held on 9 July 2021.

stylish businesspeople in outerwear shaking hands

The proposed plan includes a new type of Long-term Resident Visa (LTR VISA) and establishment of the LTR service unit to accommodate this plan. The LTR service unit will be established in a form of private entity having a concession granted by the Ministry of Finance to specifically manage this project. The key current requirements for the Elite Flexible Plus Program, as far as the TAT can confirm to the public at this moment, are making investment in Thailand in real estate, shares both in limited companies and stock market, debentures, or depositing in the bank accounts for a minimum of 1 million USD or around 30 million THB. The investment can be diversified and collectively reaches the minimum amount or can be invested wholly in one category. Other details will be announced later once it becomes clear.

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With the current situation in Samut Sakhon Province, which has large numbers of new infections among migrant workers, it is expected that the 6 provinces around Samut Prakarn Province including Bangkok, Samut Prakan, Nonthaburi, Nakhon Pathom, Ratchaburi, and Samut Songkhram will be affected. This situation is a threat to public order and safety, public health security and Thailand’s economic and social system affecting the employers to temporarily pause their businesses and the insured employees who contributes the funds to the social security system will be unemployed and unpaid.  

The Ministry of Labour then has proposed a Draft Ministerial Regulation on Unemployment Benefits in the Event of Force Majeure arising from the Outbreak of Dangerous Diseases under the Communicable Disease Act B.E. …. (the “Draft Ministerial Regulation”) to the Cabinet in order to alleviate suffering of insured employees affected by the outbreak of COVID-19 and it was approved by the Cabinet on 22 December 2020.

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Summaries of the Draft Ministerial Regulation are as follows:

  1. The Draft Ministerial Regulation was effective retrospectively from 19 December 2020 onwards.
  2. A definition of “Force majeure” will include “A danger arising from the outbreak of dangerous communicable disease under the Communicable Disease Act, which creates effect to the public and to the extent that the insured employees are unable to work or the employers are unable to operate their businesses normally.
  3. In case that force majeure event occurs and the government and authorities order to lock down the area in order to prevent spreading out of outbreak of dangerous communicable disease under the Communicable Disease Act in which it creates non-payment of wage to the insured employees, such insured employees will be entitled to receive the benefit at the rate of 50% of their dairy wage rate. Such benefit will be payable during the whole period of time that government and authorities order to lock down, but within one calendar year, will not be more than 90 days for each occurrence of force majeure event.

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As the numbers of foreign workers have been increased steadily in Thailand. However, the system and personnel to handle on the matters related to such foreigner works such as issuing of visa and work permit, notification of such foreign workers and related procedures have not been suitable, up-to-date and it also creates time-consuming to all related persons.

The Cabinet then has resolved in principle for the development of foreign worker management services as proposed by the Ministry of Labour by allowing an outsourcing service provider to manage and handle on the same. This can improve the foreign worker management services to be more systematic, convenient, modern and verifiable. Brief details of development of such foreign worker management services are as follows:

  1. Using an e-WorkPermitOS system instead of customary services for all processes in relation to issuing a work permit. It can be done via a smartphone or tablet by using mobile application.
  2. Arranging for 45 places for the e-WorkPermitOS information Center.
  3. Issuing the work permit in a plastic card and digital forms having QR-code and barcode.
  4. Providing services for 24 hours a day.
  5. Accumulating all data to be in a single database.
  6. Verifying all processes through single database.

The Ministry of Labour then is required to work together with all related authorities and then repropose this development of foreign worker management services to the Cabinet for its final approval.

Author: Panisa Suwanmatajarn and Parita Preamsawat

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On 25 June 2019, the cabinet approved in principle for 3 draft Ministerial Regulations (“Draft Ministerial Regulations”) issued by virtue of the Foreigners Working Management Emergency Decree (“Emergency Decree”) (No.1) B.E. 2560 (2017) and its amendment (no. 2) B.E. 2561 (2018) as proposed by the Ministry of Labor and that those Ministerial Regulations will be sent to the Council of State for its review and consideration. After that the Draft Ministerial Regulations will be returned to the cabinet for its final approval before becoming enforce. Brief details of such Ministerial Regulation are as follows:

  1. The Draft Ministerial Regulations specifying rules, procedures and conditions for applying for work permit, issuing of work permit, applying for renewal of work permit notifying of extension of time and notifying of issuance of notification of work permit.
  2. Draft Ministerial Regulations determining qualifications of foreigners who are able to obtain the work permit are as follows:
    • Individuals who do not hold Thai nationality;
    • Individuals who do not have insanity or mental infirmity;
    • Individuals who have never been sentenced by a final judgment to imprisonment under the immigration-related law or the management of foreigner working law within 1 year before the date of applying for the work permit; and
    • Individuals who have never been being illness with the certain diseases: leprosy, active tuberculosis, lymphatic filariasis in the presence of symptoms that are disgusting to society, addiction disease, alcoholism or syphilis in phase 3.
  3. The Draft Ministerial Regulations prescribing fees related to obtaining the work permit, including work permit fee, renewal fee, annual fee and substitute of work permit, for foreign workers.

Once the 3 Draft Ministerial Regulations have been promulgated, it will provide clearer conditions and more consistent in regard to the procedures, qualifications and fees in requesting for the work permit for foreign workers in Thailand.

Author: Panisa Suwanmatajarn and Anon Chanrueng

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Foreign Business Act B.E. 2542 (1999) (“FBA”) is a master law which is aimed to restrict foreigners who would like to invest and conduct their business in the country. There are 2 key important provisions of the FBA which are 1. definition of a foreigner and 2. types of business that prohibit foreigners from entering into and conduct such business in a form of lists as annexed to the FBA. Nowadays, the Thai Government are pushing the country to be transformed into Thailand 4.0 model which in that model the policy of Thai Government will include providing privileges in investment promotion for the foreigners who would like to invest and conduct their business in Thailand.

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The current FBA which has been in force for a considerable period of time and also contains certain lists of businesses which those are inconsistent with circumstances in regard to the economy, investment and international trade of the present time. Therefore, on 21 May 2019, the Cabinet approved in principle a draft Ministerial Regulation in Regard to Service Businesses Requiring Not to Obtain Permission by Foreigners B.E. …. (“Draft Ministerial Regulation”) proposed by the Ministry of Commerce.

According to Section 9 of FBA, it provides that “the Commission shall consider and review categories of businesses in the lists annexed hereto at least once every duration of one year as from the date of the entry into force of this law…….”

the Foreign Business Commission examined the service businesses listed in category 3 and were of the view that the three services businesses which are

  1. Service business to provide loan to affiliated companies in the group located in the country
  2. Service business to provide office for rental with utilities for affiliated companies in the group and
  3. Service business to provide consulting service for affiliates companies in the group for certain services, i.e. management, human resources, marketing and information technology which the Foreign Business Commission considered as they do not create adverse effect to the Thai entrepreneurs in competition readiness with foreigners as it is limited in providing services to affiliated companies, reducing the costs of operation among the group and increasing the business efficiency of business units in the national economy.

This Draft Ministerial Regulation will be submitted to the Council of State for its consideration and revision and then returned to the Cabinet for its final approval together with the comments from the Ministry of Finance, Bank of Thailand and Ministry of Digital Economy prior to be enforced.

Author: Panisa Suwanmatajarn and Anon Chanrueng