Is it human smuggling to use a travel visa to work?
DAFTAR ISI
INTISARI JAWABAN
The type of visa granted to foreigners who will travel to Indonesia depends on the purpose of arrival. Thus, it is not allowed for foreigners to state that the purpose of traveling to Indonesia is for tourism, but in reality, the foreigners are doing some work. This is because the type of visa and the period of validity of the visa granted are different.
Then, if someone uses a tourist visa to work in Indonesia, can this be categorized as human smuggling?
Please read the review below for a further explanation.
This article is an update from the article with the same title,written by Erizka Permatasari, S.H. and was published on Monday, 25 October 2021.
All legal information available on Klinik hukumonline.com has been prepared for educational purposes only and is general in nature (read the complete Disclaimer). In order to obtain legal advice specific to your case, please consult with Justika Partner Consultant.
To answer your question, we assume the visa you are asking for is a Visa of the Republic of Indonesia, from this point onwards referred to as Visa, which is a written statement, either manually or electronically, granted by an authorized official to travel into Indonesian Territory and becomes the basis for granting a Stay Permit.[1]
Granting Visas for Foreigners
As quoted from the article entitled Types of Indonesian Visas and Their Uses, visas consist of diplomatic visas, service visas, limited stay visas, and visitor visas, which are granted depending on the purpose of the foreigner traveling to Indonesia.
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For foreigners who travel to Indonesia for tourism, a visitor visa is granted,[2] which consists of three types, namely single entry visa, multiple entry visa, and Visa on Arrival (“VOA”).[3] However, visitor visas that can be used for tourism are single entry visas and VOAs, the description of which is as follows:
Single entry visa, this type of visa is granted to foreigners to stay in Indonesia for a maximum of 60 days or 180 days.[4]
Visa on Arrival, this type of visa is granted to foreign citizens of countries, governments of special administrative regions of a country, and certain entities subject to a visa on arrival to stay in the territory of Indonesia for a maximum of 30 days.[5]
Meanwhile, foreigners traveling to Indonesia for work, which is not diplomatic in nature, can be granted:
Service visa, for foreigners who carry out non-diplomatic official duties from the relevant foreign government or international organization;[6]
Temporary stay visa, for foreigners working to reside for a limited period of time.[7] A temporary stay visa is granted for a maximum period of 5 years, 2 years, 1 year, 180 days, or 90 days.[8]
Visitor visa, with the provisions as follows:
Single entry visa, for foreigners who will carry out activities in the context of tourism, family, social, business, pre-investment, arts and culture, government duties, non-commercial sports, comparative studies or short courses and short training, doing emergency and urgent work, giving lectures or attending seminars, continuing travel to other countries, joining conveyances in Indonesian territory, making journalistic visits, participating in international exhibitions, attending meetings held with headquarters or representatives in Indonesia, purchasing goods, filming, providing guidance, counseling, and training in the application and innovation of industrial technology to improve the quality and design of industrial products and foreign marketing cooperation for Indonesia, conducting audits, production quality control, or inspections at company branches in Indonesia, and prospective foreign workers in testing their ability to work.[9]
Multiple entry visa, granted to foreigners for government duties, pre-investment, business, and family purposes.[10]
Visa on Arrival, which is granted to foreign citizens of countries, governments of special administrative regions of a country, and certain entities subject to a visa on arrival to stay in Indonesian territory for a maximum of 30 days.[11]
From the above provisions, it can be concluded that the type of visa granted to foreigners depends on the purpose of arrival. So, it is not allowed for foreigners to state that the purpose of traveling to Indonesia is for tourism, but in reality, the foreigners are doing some work. This is because the type of visa and the period of validity of the visa granted are different.
Human Smuggling
Then, if a foreigner enters Indonesia using a single entry visa or a VOA, which is a type of visa intended for foreigners traveling to Indonesia for tourism, but he/she comes to work, does that mean human smuggling has occurred?
According to Article 106 number 1 Perppu 2/2022 which amended Article 1 number 32 Immigration Law, human smuggling is an act that aims to seek profit, either directly or indirectly, for oneself or for other people who bring a person or group of people, whether organized or unorganized, or order other people to bring a person or a group of people, whether organized or unorganized, who do not have the legal right to enter Indonesian Territory or exit Indonesian Territory and/or enter the territory of another country where that person does not have the right to enter the territory legally, either by using valid documents or falsified documents, or without using travel documents, whether through immigration checks or not.
Therefore, to answer your question, to be able to assess whether an act is human smuggling or not, it is necessary to ascertain whether the above elements are met. If the use of a tourist visa for work, as you have asked, contains the above elements, then it can be said that the act is human smuggling.
These are the answers we can provide, we hope you will find them useful.
