IA01: Retrospective Immigration Enforcement and the Rule of Law in Cambodia

There has been growing confusion and anxiety among foreigners in Cambodia since the Cambodian Ministry of the Interior announced in late 2014 that immigration laws around foreign work permits would be actively implemented in 2015. The Prakas 555, which relates to work permits for foreigners has been on the books since 1995, however it has not been enforced in the past 20 years, which has led to complacency and lack of adherence by long-term foreigners working in Cambodia.

The announcement made in January of this year warned that foreigners who had been working in Cambodia without a work permit would be liable for backpayment of the $100 per year fee as well as a $77 fine. For those working within the NGO sector, or those recent arrivals, there is little concern providing that their visa requirements are in order; however for long-term expats the future is uncertain.

The Minister for the Interior has provided little clarity for those who are likely to bear the costs of retrospective work permit fees. Some foreigners have reported that they were able to negotiate the backpayment down to $500 regardless of the number of years worked in Cambodia, while others have claimed that they paid only for their work permit commencing this year with the backpayment waived entirely. The Ambassador to the EU in Cambodia pleaded with the government to be flexible in its application of retrospective visa fees for foreign citizens who have opened a small business in good faith, which the Minister for the Interior assured he would.

Even more concerning for long-term expats is the collection of tax revenue dating back until they arrived in the country, which could add up to several thousands of dollars in debt. The Minister for the Interior has not announced the enforcement of unpaid taxes by foreigners without working permits, but there are fears that it could be imposed. Many foreigners are anxiously waiting for officials to arrive at their workplace, when they will be forced to decide whether to pay the fines (some in excess of $1000) or to leave the country.

Despite work permit laws for foreigners being valid since 1995, the sudden decision to fine foreigners retrospectively undermines the rule of law in Cambodia. The failure of the government to enforce the law does not make the failure of foreigners to obtain working permits legal, however the decision to impose fines and backpayment after almost 20 years is an unjust application of the law. Some foreigners have reported that they have attempted to comply with the work permit law before the announcement by the Minister for the Interior was made in 2014, however they were told by officials that they did not have to seek a work permit. Prospective enforcement of the law is not problematic in itself, however the decision to penalize foreigners for a law that was systematically ignored in an attempt to raise revenue casts a serious shadow over the justice of the announcement.

The flexibility in enforcing the backpayment of working permits which was promised by the Minister for the Interior raises grave concerns over the transparency of transactions. While the announcement assured that foreigners would receive a receipt for all fees and fines, and could make a complaint for any misconduct by public servants, the scope for corruption is especially wide. Reports that some foreigners who have sought to backpay several years of work permits have been charged differing amounts and offered different fines for similar situations demonstrates that the process of retrospective enforcement of these laws is flawed.

The other question that arises is how officials will know how long each person has been working in the country and the amount to be paid. If expats have moved between jobs and have failed to keep paperwork and employment contracts, it creates significant difficulty for officials to accurately calculate. There have been reports of immigration officials checking the passports for visa renewals in order to work out the amount owed for previous work visas, however such an approach does not take into consideration that foreigners may not have worked for part of that period. The potential for errors in calculation, lack of records, and flexibility make the process of retrospectively fining expats fraught with issues.

The most basic formal elements of the rule of law require that any legislation is publicized, applies prospectively and is consistent and equal to all. The Minister of Interior’s plans to retrospectively apply this hitherto redundant law raise serious concerns of justice. In the meantime, for those foreign workers and business owners who are not yet long-termers awaiting the dreaded knock on the door and the uncertainty, it is time to apply for a working permits. The law should be looking forward rather than backwards, and the Cambodian Government should focus on ensuring legal compliance now and into the future, rather than pursuing a witch hunt in a thinly veiled attempt to raise revenue and assert some dominance.

Gabrielle Ward is the Research Director at the Professional Research Institute for Management and Economics (PRIME).

* IA01 = Issue Analysis 01 - This article is the first Issue Analysis (IA) published by PRIME. The IA series is for short analysis of news, policy, and current events, and will generally be published as newspaper opinion, in a newsletter, online media, or the PRIME blog.

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