Officials Flexible in Enforcing Aspects of Immigration Law

According to the letter of Cambodia’s immigration law, all foreigners working in Cambodia—NGO workers and diplomats excluded—are doing so illegally.

And despite the government’s interpretation of the law, which allows foreigners to be employed if they fulfill certain requirements, the majority of foreigners still work illegally—and mostly without repercussion.

Chinese workers—especially those working in garment factories—are the exception, comprising the vast majority of immigrants who are warned and punished for working illegally.

Part of the problem is that Cambodian immigration law is a byzantine web of often contradictory regulations, which may leave the enforcement up to the whim of individuals.

Many decrees and sub-decrees have been written to clarify procedures since the Immigration Law was passed in 1994 because the law is brief, with just 41 articles to cover subjects as diverse as tourist visas and family reunification, said Brigadier General Kirth Chantharith, director of the Department of Foreigners at the Ministry of Interior.

When those are not detailed enough, he said, “we think about it and try to work out something that works.”

For instance, the Immigration Law requires that all foreign workers must obtain a resident card. Not one resident card has been issued since the law was passed, Kirth Chantharith said.

The procedure to get a resident card, technically needed for a work permit and the related employment card, is prohibitively complicated—it requires, among other things, that each applicant get a written proclamation from the Ministry of Interior.

“The law is written in such a way that it is impossible to implement,” said Iulian Circo, a legal officer with the International Organization for Migration and author of an assessment of Cambodian migration legislation, which was presented at a conference at the Hotel Cambodiana on Jan 8.

The Immigration Law was among the first laws sent to the National Assembly for approval by the Funcinpec-CPP government that took office after the 1993 Untac-sponsored election, Kirth Chantharith said. The law was largely a response to fears that foreigners, especially Vietnamese, were exploiting Cambodia’s resources, he said.

At the time, Circo said, officials had little experience with immigration, so the law does not effectively deal with many complex situations, from protection for trafficking victims to foreigners coming to work in the country.

Circo praised the Department of Foreigners, which issues visas, for finding practical solutions to unenforceable legislation. “Without them,” he said, “there would be no way to get into the country.”

In practice, Kirth Chantharith said, those coming to Cambodia to work are given an E visa, which many, including Phnom Penh International Airport immigration, call a business visa.

According to the 1994 Immigration Law, an E visa actually prohibits the holder from seeking “gainful employment,” Circo said.

As the law is enforced, the makeshift business visa only allows foreigners to apply for a work permit and employment card, rather than grant-ing permission to work, said Kirth Chantharith.

He said that about half of all foreign workers don’t have a work permit, but he was waiting for the results of a recent Interior Ministry census, which should be released in a few months, to get actual numbers on how many foreigners are working in the country.

A comparison between E visas and work permits shows that the actual percentage of foreigners working illegally may be much higher, though officials caution that just paying for an E visa doesn’t indicate that a foreigner is actually employed.

Duong Ngeap, chief of the checkpoint border division of the Ministry of the Interior, said 69,640 E visas were issued in 2003 alone. Only 5,727 work permits were issued between 1994 and July 15, 2003.

For those who do work without a permit, whether or not they are caught seems to depend on nationality and place of employment. Many factory employees, principally those from China, are made to obey the rules, while workers in other sectors and from other countries, especially those outside Asia, are left alone.

An informal survey of Australian, US and British workers and business owners found few who had heard of the requirement and even fewer who had heard of anyone being punished.

“I definitely know of the requirement, but it has not been enforced,” said Bretton Sciaroni, president of the American Cambodian Business Association.

Jimmy Gao, president of the Chinese Chamber of Commerce in Cambodia, has had a different experience. “The inspector team has continuously been to factories since the last three or five years,” he said.

Seng Sakda, director of the Employment and Manpower Department of the Ministry of Social Affairs and Labor, acknowledges that the inspection team, made up of inspectors from his department and the Department of Foreigners, targets the Chinese, saying that the team lacks manpower and funds to inspect the entire working population for illegal workers.

“We have a lot of work to do,” he said. “We mainly focus on Chinese because a lot of garment factories are Chinese.”

According to a document from the department, 3,835 Chinese have obtained work permits since 1994, compared to just 54 US workers. Thai workers hold 376 work permits, the next most numerous nationality after Chinese.

The business visa costs $180 per year and the work permit plus employment card cost $100 per year, officials said. The business visa must be renewed every year and the work permit is good for as long as two years, Seng Sakda said, though it cannot be used without a visa.

According to Kirth Chantharith, those who continue to work without a permit after several warnings are subject to fines. When asked how many people have been fined he said, “Of course there were many, but I don’t remember how many.”

Seng Sakda, whose department issues the permits, said that no one has ever been fined. Workers found without a permit are advised to get one, he said, and if they don’t comply they are sent back to their country. Several Chinese workers have been deported, he said.

Arbitrary enforcement in general is engendered largely by weak legislation and a lack of trained staff, according to the IOM’s assessment.

“The immigration act covers a very limited number of migration issues, and it could be argued that the covered areas are treated in an insufficient manner, to say the least,” Circo wrote in the assessment.

“This fact may create many legislative loopholes and tends to invest enforcement officials with an often too high potential or even necessity to use unacceptable degrees of discretion.”

He argues for a new comprehensive law covering aspects of migration ranging from protections for trafficked victims and unaccompanied minors to work permits, replacing the laws, decrees, sub-decrees and prakas that currently govern migration in Cambodia.

“The instruments that constitute the Cambodian Migration Legislation are many and incoherent enough as they are right now, and an additional instrument will not make any significant difference,” he wrote.

A recent draft of a proclamation circulated by the Ministry of Social Affairs and Labor is a good example. If the proclamation, or prakas, is signed by the minister, it would give the government more power over who comes and works in the country.

The draft restates the requirement that foreign workers get a resident card, even though, as Seng Sakda also admitted, they are never issued.

It also restates sections of the Labor Law and the Immigration Law, saying that all employers of foreigners without employment cards will be punished and employees working illegally will be deported.

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