Criminal Penalty for Foreigners Working Illegally in Indonesia

PERTANYAAN

Recently, many foreigners have been reported to be working illegally in Bali, for example, as yoga teachers, photographers/videographers, spiritual experts, art workers, villa keepers, pet sitters, and others without valid licenses from the government. Is there any legal basis to regulate tourists or foreign citizens working in Indonesia? What are the requirements for foreign citizens to work in Indonesia?

INTISARI JAWABAN

In essence, the main requirement for a Foreign Citizen (Warga Negara Asing/ ”WNA”) who wishes to work in Indonesia must be in possession of a Limited Stay Visa (Visa Tinggal Terbatas/ “Vitas”) which is obtained through the application. So, what are the legal sanctions if foreigners work without Vitas? Can foreign employers without Vitas also be subject to criminal sanctions?

Please read the review below for a further explanation.

ULASAN LENGKAP

This article is an English translation of Jerat Hukum WNA Kerja Ilegal di Indonesia written by Dian Dwi Jayanti, S.H., and was published on Tuesday, 14 March 2023.

This article below is an update of the article entitled Criminal Penalty for Foreigners Working as Illegal Villa Keeper, which was first written by James Peter N. C. Paath, S.H. from Lembaga Bantuan Hukum Mawar Saron and was first published on Tuesday, 9 October 2018. 

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.

Definition of Foreign Workers

Before answering your question, we should first understand what is meant by Foreign Workers (Tenaga Kerja Asing/ “TKA”). According to Abdul Hakim, Foreign Worker is any person who is not an Indonesian Citizen who is able to perform work, either inside or outside the working relationship, in order to produce services or goods to fulfill the needs of the community.[1] This definition is in line with Article 1 number 1 Regulation of the Minister of Manpower 8/2021, Article 1 number 1 Government Regulation 34/2021, and Article 1 number 13 Law 13/2003, which defines Foreign Workers as foreign citizens who hold visas with the intention of working in Indonesian territory.

Visas and Stay Permits for Foreign Citizens to Work in Indonesia

As defined above, the main requirement to become a Foreign Worker is that a Foreign Citizen (Warga Negara Asing/ "WNA") must be in possession of a visa. The type of visa required by a Foreign Worker in order to work in Indonesia is a Limited Stay Visa (Visa Tinggal Terbatas/ "Vitas") which is obtained through an application.[2] You can read a complete description of the various types of visas in the article Types of Indonesian Visas and Their Uses.

Vitas, in order to work, may be granted to foreigners to carry out activities including:[3]

1. as experts;
2. join to work on ships, floating equipment, or installations operating in the waters of the archipelago, the territorial sea, or the continental shelf, as well as the Indonesian Exclusive Economic Zone;
3. carry out their duties as clergy;
4. undertake activities related to the profession by receiving payment;
5. engage in commercial filmmaking activities and have obtained licenses from authorized institutions;
6. supervise the quality of goods or production;
7. conduct inspections or audits at company branches in Indonesia;
8. serve after-sales;
9. installing and repairing machines;
10. undertake non-permanent work in the framework of construction;
11. organize art, music, and sports performances;
12. organize professional sports activities;
13. undertake medical activities; or
14. prospective foreign workers who will work in order to test their skills.

The Limited Stay Visa application in order to work may be submitted by Guarantor to the Immigration Official at the Directorate General of Immigration through application by enclosing:[4]

1. letter of guarantee from the Guarantor who is the employer of the Foreigner;
2. Legal and Valid Nationality Passport:

1. minimum of 12 (twelve) months for those who will work in the Indonesian territory for a maximum of 180 (one hundred and eighty) days;
2. minimum of 18 (eighteen) months for those who will work or stay in the Indonesian territory for a maximum of 1 (one) year; or
3. minimum of 30 (thirty) months for those who will work or stay in the Indonesian territory for a maximum of 2 (two) years.

 

3. proof of having the cost of living for themselves and/or their families during their stay in the Indonesian territory of at least US$2000 (two thousand US dollars) or its equivalent;
4. 2 (two) recent colored photographs with white background, with a size of 4 cm x 6 cm (four centimeters by six centimeters);
5. proof of insurance ownership in an insurance company with an Indonesian legal entity which includes health financing as long as the Foreigner is in Indonesian territory; and
6. a letter of recommendation from the authorized agency in charge of manpower or other relevant agencies.

Furthermore, the Limited Stay Visa application shall also be used as an application for Limited Stay Permit (Izin Tinggal Permit/ “ITAS”) for work purposes.[5]

Provisions on Foreign Worker Employers

Basically, Foreign Workers may only be employed by Foreign Worker Employers in an employment relationship for a certain position and for a certain period of time, and have competencies in accordance with the position to be occupied.[6]

Any employer who employs foreign workers must possess a Foreign Workers Recruitment Plan (“Rencana Penggunaan Tenaga Kerja Asing/ “RPTKA”) that is validated by the Central Government and individual employers are prohibited from employing foreign workers.[7]

Foreign Workers Recruitment Plan is also regulated in Article 6 Government Regulation 34/2021 which states:

1. Every Foreign Worker Employer who employs Foreign Workers must have a Foreign Workers Recruitment Plan which is validated by the Minister or an appointed official.
2. In the event that Foreign Worker Employer is going to employ Foreign Workers who are being employed by another Foreign Worker Employer, the respective Foreign Worker Employer must have a Validation of the Foreign Workers Recruitment Plan.
3. Foreign Worker Employers as referred to in section (1) and section (2) are required to employ Foreign Workers in accordance with the Validation of Foreign Workers Recruitment Plan.

Besides that, Foreign Worker Employers have some obligations such as appointing Indonesian workers as Foreign Worker Understudy Workers who are employed for the transfer of technology and transfer of expertise from Foreign Workers, carrying out education and job training for Foreign Worker Understudy Workers in accordance with the qualifications for the position occupied by Foreign Workers, return the Foreign Workers to their country of origin after the employment agreement expires,[8] and must facilitate Indonesian language education and training for Foreign Workers.[9]

As an information, there are several occupations, such as art worker, villa keeper, and pet sitter, which are not regulated under the Regulation of the Minister of Law and Human Rights 29/2021 or Law 13/2003. Therefore, we assume that the work undertaken by the foreigners can be categorized as informal/non-formal sector work which has the following characteristics:[10]

1. Work orders that are not permanent, but rather follow the orders of the employer;
2. Unspecified working hours;
3. Wages that are not paid in the form of money but only accommodation, or which are legally known as non-wage income.

However, such a wage system does not eliminate the fact that there is work to be done, the employer, and the counter-performance of what is done. Thus, foreigners must still have Limited Stay Visas.

Also read: Is It Permissible to Employ Foreign Workers as Blue-Collar Workers?

Sanctions for Foreigners Who Work Without Permits

According to our opinion, Foreign Citizens who work without having Limited Stay Visas or Vitas have committed violations of the law, for that reason, Immigration Officials are authorized to carry out Immigration Administrative Actions against Foreigners who are in Indonesian Territory and who carry out dangerous activities and are reasonably suspected of endangering security and public order or not respecting them or not complying with laws and regulations,[11] such as:[12]

1. including their names in the list of Exit Ban or Entry Ban;
2. restriction, change, or cancellation of their Stay Permit;
3. prohibition from residing in one or several certain places in Indonesian Territory;
4. obligation to reside at a certain place in Indonesian Territory;
5. liable to a fine; and/or
6. Deportation from Indonesian Territory.

In addition to administrative sanctions, there are also criminal sanctions for foreigners who misuse the granting of Stay Permits granted to them. These matters are regulated under Article 122 Law 6/2011, specifically:

A sentence of imprisonment for a maximum of 5 (five) years and a fine for a maximum of IDR500,000,000.00 (five hundred million rupiahs) shall be imposed on:

1. any Foreign National deliberately misusing or conducting activities that do not comply with the purposes and objectives of the Stay Permit granted to them;
2. any person inciting or allowing Foreign Nationals to misuse their Stay Permit or conduct activities that do not comply with the purposes and objectives of the Stay Permit granted to them.

Based on the abovementioned provisions, any persons who provide employment to foreigners who misuse or engage in activities that are contrary to their stay permits may also be subject to imprisonment for a maximum of 5 (five) years and a maximum fine of IDR 500 million.

Also read: Requirements for Foreign Workers to Work in Indonesia

In conclusion, Foreign Workers are Foreign Citizens who hold Limited Stay Visas with the intention of working in Indonesian territory. In other words, to be able to work in Indonesia, foreigners are required to have visas. Foreigners who fail to comply with the laws and regulations may be subject to administrative sanctions and deportation from Indonesian territory. In addition, if a foreign citizen intentionally misuses it or engages in activities that are not in accordance with the purpose and objectives of the granting of a Stay Permit, then they may be subject to a maximum of 5 (five) years of imprisonment and a maximum fine of IDR 500 million.

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These are the answers we can provide, we hope you will find them useful.

Legal Basis:

1. Law Number 13 of 2003 on Manpower;
2. Law Number 6 of 2011 on Immigration;
3. Regulation of the Government in Lieu of Law of the Republic of Indonesia Number 2 of 2022 on Job Creation;
4. Regulation of the Government Number 34 of 2021 on the Recruitment of Foreign Workers;
5. Regulation of the Minister of Manpower of the Republic of Indonesia Number 8 of 2021 on Implementing Regulation of Regulation of the Government Number 34 of 2021 on the Utilization of Foreign Workers;
6. Regulation of the Minister of Law and Human Rights Number 29 of 2021 on Visa and Stay Permit;
7. Circular of the Minister of Manpower Number SE-07/MEN/1990 of 1990 on Classification of Wage and Non-Wage Income Components.

Reference:

Abdul Hakim. Dasar-Dasar Hukum Ketenagakerjaan Indonesia. Jakarta: Citra Aditya Bakti, 2009.

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[1] Abdul Hakim. Dasar-Dasar Hukum Ketenagakerjaan Indonesia. Jakarta: Citra Aditya Bakti, 2009, p. 27.

[2] Article 29 Regulation of the Minister of Law and Human Rights Number 29 of 2021 on Visa and Stay Permit (“Regulation of the Minister of Law and Human Rights 29/2021”).

[3] Article 30 section (1) Regulation of the Minister of Law and Human Rights 29/2021.

[4] Article 32 section (1) Regulation of the Minister of Law and Human Rights 29/2021.

[5] Article 32 section (2) Regulation of the Minister of Law and Human Rights 29/2021.

[6] Article 4 section (1) Regulation of the Government Number 34 of 2021 on the Recruitment of Foreign Workers (“Government Regulation 34/2021”).

[7] Article 81 number 4 Regulation of the Government in Lieu of Law of the Republic of Indonesia Number 2 of 2022 on Job Creation (“Perppu 2/2022”) which amended Article 42 section (1) and (2) Law Number 13 of 2003 on Manpower (“Law 13/2003”).

[8] Article 7 section (1) Government Regulation 34/2021.

[9] Article 7 section (2) Government Regulation 34/2021.

[10] Circular of the Minister of Manpower Number SE-07/MEN/1990 of 1990 on Classification of Wage and Non-Wage Income Components (“Circular of the Minister of Manpower 07/1990”).

[11] Article 75 section (1) Law Number 6 of 2011 on Immigration (“Law 6/2011”).

[12] Article 75 section (2) Law 6/2011.