VI. Rights Violations in the Migration Registration System

I don’t know about the situation with the registration and the Ministry of Labor because the civil servants only talk to the employers—they never send the cards or documents to us workers.

—Ma Myo, migrant worker from Burma, December 15, 2008, Mae Sot district, Tak province

On May 26, 2009, the Thai Cabinet passed a resolution to reopen migrant worker registration to new workers and to those who had previously registered and dropped out of the system because of job termination or for other reasons. Registration was permitted for work in a limited number of industries requiring unskilled labor—fishing, agriculture and livestock raising, construction, industries connected to seafood processing, domestic work, and other specified industries. This constituted the seventh round of temporary, short-term migrant worker registration since 1996.[169] The Minister of Labor proclaimed this exercise the “final registration.” According to Ministry of Labor statistics, a total of 1,054,261 migrants (785,017 Burmese, 120,824 Lao, and 148,420 Cambodians) registered for legal status in 2009.[170]

The Department of Local Administration (DLA) of the Ministry of Interior is responsible for the formal registration (history, photo, fingerprints) of each migrant and issuance of the TR 38/1 document that serves as proof of registration.

The DLA then issues a migrant worker ID card. Dependents and children of migrant workers are not covered by the TR 38/1 registration or work permit, but must go through a difficult supplemental registration process once their parent has registered and received a work permit.

After the migrant worker ID card is issued, then the Department of Employment (DOE) of the Ministry of Labor is responsible for receiving applications from the worker and prospective employer and issuing a work permit. Invariably, the number of workers applying for and receiving a work permit is less than the number who register in the first step of the process. Among migrants who registered during the so-called “final registration,” a total of 792,175 migrants applied for and received work permits, and another 382,541 migrants who had registered earlier renewed their permits. All 1,174,716 migrant work permit holders must apply to go through the nationality verification process before February 28, 2010[171]

Employers must report on the status of their migrant employees to the DOE every three months and inform DOE within seven days if the worker leaves the job or is terminated. Employers also must arrange housing for their migrant employees where government officials can easily inspect them. Employers are also strictly forbidden from hiring migrant workers who have left other employers without permission. The total fees for registration and health insurance for one year is 3800 baht.[172]

Critically, the migrant registration process allows temporary stays, but does not change the formal legal status of migrant workers. The Thai Cabinet authorizes registrations and instructs the Ministry of Interior to issue an announcement covering specific groups of migrants who are granted the right to stay and work under the authority of article 17 of the Immigration Act of 1979.[173] However, registered migrant workers from Burma, Cambodia, and Laos are still considered to have entered the country in violation of the Immigration Act of 1979 so their legal status is considered as “temporary, pending deportation.”

One consequence of classifying migrant workers this way is that it makes them ineligible for an array of legal protections, a form of discrimination that violates Thailand’s obligation to nondiscrimination under the ICERD. For example, the government has denied such workers access to compensation under the Workmen’s Compensation Act of 1994 (WCA). Nang Noom Mai Seng, a legally registered Shan migrant worker, was paralyzed from the waist down in a construction accident in Chiang Mai on December 4, 2006. Officials overseeing the Social Security Office’s Workmen’s Compensation Fund (WCF) decided she was not eligible to receive direct assistance from the fund. The ruling required her to show a passport showing legal entry or a standard work permit to access the fund.[174] The tribunal judged Nang Noom’s work permit to be temporary and therefore ineligible for compensation.

A November 2007 National Human Rights Commission decision on Nang Noom’s case found that the ruling “constitute[s] discrimination and place[s] an obstruction in the way of migrant workers being able to avail themselves of rights provided by the WCF.”[175] The State Enterprise Worker Relations Confederation filed a complaint against the Thai government for violating its obligations as a ratifying state of ILO Convention No. 19 on Equality of Treatment (Accident Compensation). Convention No. 19 requires that a ratifying state must provide the same treatment in providing worker’s compensation to foreign nationals of a state that has also ratified the convention as it does to its own nationals.[176]

The migrant registration system directly facilitates employer control by severely restricting migrant workers’ right to change employers. Registered migrant workers can request to change the type of work or location of work, but must remain working for the employer that registered them. Under the system, registered migrant workers can only change employers if an employer has gone bankrupt, has violated the worker’s rights according to the labor law, or the employer agrees to terminate the worker and sign a transfer form allowing him to go to another employer. In the case of rights violations, the worker must prove the violations to the satisfaction of a labor inspector from the Department of Labor Protection and Welfare. In case of termination, the rules provide a migrant worker only seven days to transfer—making it virtually impossible for workers to transfer unless they have the active cooperation of their former employer.

In order for a migrant worker to change employers, the existing employer must sign a bai jaeng awk (termination and employer transfer form). In Mahachai district of Samut Sakhon province, migrants report employers’ representatives commonly demand money—3000 to 4000 baht—to sign this form, and if they are not given the money, they will not authorize the transfer. Without a signed form, workers must abandon their legal status and registration. This happened to Zar Ni, who remarked that, “I get angry that where I want to go I am not allowed to go. It makes me feel that I must work for them forever.”[177] Another worker, Naing Ko, confirmed that “there are always difficulties about work transfer letters.... If the former employer does not give the transfer letter, we cannot continue our migrant ID and we become the illegal workers.”[178]

This system gives employers enormous leverage over migrant workers, who live in constant fear that they will be terminated, lose their legal status, and become subject to immediate arrest and deportation. Many employers exploit their position of power by demanding migrants work long hours for little pay, withholding wages, and failing to meet other minimum protections in Thailand’s labor law. Intimidation is compounded by employers’ common practice of seizing original migrant worker documents, such as migrant worker ID cards.

Comprehensive research by the ILO found employers engaged in widespread confiscation and holding of workers’ ID cards, with these practices affecting 39 percent of fishing sector workers, almost 50 percent of domestic workers, and more than 33 percent of manufacturing employees and agriculture workers.[179]

When migrant workers change employers, they find themselves in a risky legal status as they wait for the transfer to be finalized. In some instances, police arrest migrant workers during this period. Sai Saw said local police apprehended him in Chiang Mai in August 2008 at the construction site of his new employer. He told police he was in the process of changing his registration but his card still listed him as attached to his previous employer. The police refused to believe his explanation and detained him at the Chang Phuak sub-district police station overnight. The next day, the Chiang Mai court fined him 1000 baht. He said he evaded deportation by bribing a well-connected broker 3000 baht to be set free in front of Chiang Mai city hall instead of being taken back to the Chang Phuak police lock-up.[180]

Mistreatment of Migrants by Employers, Brokers, and Authorities in the Migrant Worker Registration System

The highly complicated migrant registration system is daunting to many migrant workers who lack both the detailed understanding of the bureaucratic steps and the requisite skill in written and spoken Thai to successfully navigate the process. Most migrant workers either hire brokers or rely on their employer to make their applications. As a result, they are frequently overcharged, paying more than the official 3800 baht for registration and medical insurance. Brokers cheat unsuspecting migrant workers by offering to handle the workers’ registration application and then simply taking their money.

Some employers take advantage of restrictions on workers’ ability to change employers to charge excessive fees. Aik Neng described how he paid his employer at a knitwear factory in Om Noi district in Nakhon Pathom province 4000 baht before the registration process had even started, and was expected to pay an additional 4000 baht after the registration was completed.[181]

Even more skilled migrants pay inflated fees. Ma Myo, a line supervisor at a garment factory in Mae Sot, said that “I had to pay 4300 baht this year to get my work registration. Really, I know that it is only supposed to cost 3800 baht, but my employer said that she has to pay 500 baht for what she calls ‘employers fees.’”[182]

In some cases, brokers are willing to serve as a migrant’s employer of record or locate a Thai who has previously received permission to hire migrant workers and is willing to file an application for migrant registration in return for fees. Say Sorn, an ethnic Mon migrant worker who is fluent in Thai, explained that even he had to pay a broker 5000 baht for his re-registration, “because I did not know the law.”[183] His factory would not register him, so he relied on the broker to find a “paper” employer. He added, “The employer listed as my employer is not my real employer, but someone at that factory who the broker found to say that he is my employer.”[184]

The failure of the migrant registration system also spawns informal, substitute provincial systems for registration of migrant workers. In Rayong, Pattani, and Ranong, provincial governors launched systems to attempt to identify the numbers of migrant workers in the province and set out systems of control. As a result, in these three provinces, there are systems to issue local ID cards with unclear standing in law.

In Ban Phe sub-district in the Muang district of Rayong, migrant workers pay 200 to 300 baht per month for a card that will help prevent them from being arrested by the local police. However, migrants report that if police come from other sub-districts or the provincial level police offices, the monthly card will not protect them from arrest.[185] Copies of the monthly card seen in Ban Phe in January 2009 list the migrant worker’s name and nationality, the name of the fishing boat to which the migrant is attached, the workers’ photo, and a stamp of the Rayong branch of the Thai Fisheries Association (TFA). NGO workers in the area told Human Rights Watch that monthly fees from fishermen and their shore-based family members are sent to the TFA.[186]

A researcher holds a “Rayong ID card” issued to a Cambodian migrant worker in Rayong’s Muang district. The card has the stamp of the provincial chapter of the Thai Fisheries Association and is intended to prevent the bearer from being arrested by local police for immigration violations. The card contains the name of the worker, nationality, name of the fishing boat to which she or he is attached, and the phone number of the boat owner or captain. The cost of the card varies between 200 to 300 baht (US$ 6 to 9) per month to renew. © 2009 Human Rights Watch

In Pattani, the production of ID cards is done by the provincial chapter of the Thai Fisheries Association. Migrant workers told Human Rights Watch that the card protects them from arrest by local police in areas near the Pattani fishing port. The card costs 500 baht for three months. The provincial Department of Employment chief insists that the association card does not have legal status but that he is largely powerless to prevent its distribution because it is a private arrangement between the migrant workers, the TFA Pattani chapter, and the police.[187]

Ranong province previously issued a local migrant worker ID card offering protection from arrest by local police in certain areas of Ranong. The degree of the card’s coverage and protection is subject to the discretion of local police and army officers intercepting migrants. Su Su described the police arrest of her husband and sister on November 20, 2007, as they traveled from their workplace at Ranong National Park to see Su Su’s sick father in Ranong Hospital. She said that

Usually the police don’t accept this [as an ID] and always ask for bribes. He [the policeman] said [to my husband] “Your card is already out of date and you are not allowed to come here ... This temporary card does not allow you to go out at night.”

Su Su had to enlist the help of a Thai to travel to the local police post where her relatives were held, and negotiate the price of release from 6000 baht down to 3000 baht.[188]