The legal framework governing immigration in Indonesia has transitioned from colonial-era control mechanisms to a modern system predicated on the “Selective Policy” (Kebijakan Selektif), balancing national security with economic development. The evolution of these statutes reflects Indonesia’s shifting posture toward global mobility, sovereignty, and international human rights standards.

The Colonial Foundation and Post-Independence Transition

The origins of Indonesian immigration law are rooted in the Dutch colonial administration’s efforts to regulate the movement of persons within the East Indies. The primary instrument was the Immigratie-ordonnantie (Staatsblad 1944 No. 22), which remained the prevailing legal authority long after Indonesia’s independence in 1945. Under the transitional provisions of Article II of the 1945 Constitution (UUD 1945), colonial laws remained valid as long as they did not contradict the new republic’s constitution. This era was characterized by a restrictive approach focused on the surveillance of “foreign Orientals” and Europeans, managed through the Toelating-Besluit 1916 (Admission Decree).

Law Number 9 of 1992: The First National Codification

The first comprehensive post-independence legislative overhaul occurred with the enactment of Law No. 9 of 1992 concerning Immigration. This statute formally repealed the Immigratie-ordonnantie of 1944 and the Paspor-ordonnantie of 1918. Law No. 9 of 1992 established immigration as an integral part of national security and sovereignty. It introduced the foundational principle that immigration is a manifestation of the state’s sovereign right to determine who may enter its territory. This law also formalized the administrative structure of the Directorate General of Immigration under the Ministry of Justice (now the Ministry of Law and Human Rights).

Law Number 6 of 2011: The Current Statutory Bedrock

The most significant evolution in the modern era is Law No. 6 of 2011 concerning Immigration, which replaced the 1992 Law. This statute was designed to align Indonesian law with international human rights norms and the demands of globalization. Article 1, Paragraph 1 defines immigration as:

“Hal ihwal lalu lintas orang yang masuk atau keluar Wilayah Indonesia serta pengawasannya dalam rangka menjaga tegaknya kedaulatan negara.” (Matters concerning the traffic of people entering or leaving the Indonesian Territory and its supervision in order to maintain the upholding of state sovereignty.)

The 2011 Law codified the “Selective Policy” as the guiding doctrine of Indonesian immigration. As articulated in the Elucidation of Law No. 6 of 2011:

“Berdasarkan kebijakan selektif, hanya Orang Asing yang memberikan manfaat serta tidak membahayakan keamanan dan ketertiban umum diperbolehkan masuk dan berada di wilayah Indonesia.” (Based on the selective policy, only Foreigners who provide benefits and do not endanger security and public order are allowed to enter and reside in Indonesian territory.)

This law introduced several structural shifts, including the formalization of the “Immigration Intelligence” function and the expansion of the types of stay permits. It also established the legal basis for the Pejabat Imigrasi (Immigration Officer) as a specialized law enforcement role with the authority to conduct investigations (penyidikan) and administrative actions.

The Omnibus Law Reforms (2020–2023)

The legislative landscape underwent a major shift with the enactment of Law No. 11 of 2020 concerning Job Creation (the “Omnibus Law”), which was later superseded by Law No. 6 of 2023. These reforms modified several articles of Law No. 6 of 2011 to facilitate foreign investment and ease of doing business.

The primary evolutionary change introduced by the Omnibus Law was the decoupling of certain immigration requirements from rigid labor and investment categories. For example, it amended Article 39 of Law No. 6 of 2011 to allow for more flexible stay permit durations and introduced the concept of “Second Home” permits and “Golden Visas” as statutory possibilities, though the specific operational details were left to implementing regulations. These amendments reflect a transition from a purely security-oriented approach to one that views immigration as a catalyst for national economic growth.

Evolution of Implementing Regulations

The substantive application of Indonesian immigration law is governed by Government Regulations (Peraturan Pemerintah or PP), which have evolved to reflect the changes in the primary statutes. The primary implementing regulation is Government Regulation No. 31 of 2013, which has undergone multiple significant amendments:

  1. Government Regulation No. 26 of 2016: Amended provisions regarding the duration of stay permits and the conversion of permit types.
  2. Government Regulation No. 48 of 2021: Implemented the changes mandated by the Omnibus Law, specifically regarding the “Second Home” category and the elimination of the requirement for certain foreign workers to obtain a visa before entry in specific economic zones.
  3. Government Regulation No. 40 of 2023: The most recent major amendment, which further refined the “Golden Visa” framework and adjusted the financial thresholds and requirements for long-term stay permits to attract high-net-worth individuals and global talent.

Judicial and Doctrine Evolution

The Indonesian Constitutional Court (Mahkamah Konstitusi) has also played a role in the evolution of immigration law, particularly regarding the rights of foreigners and the limits of administrative power. In Decision No. 40/PUU-IX/2011, the Court reviewed the constitutionality of the “Exit-Entry” (Cekal) provisions in Law No. 6 of 2011. The Court ruled that the power to prevent citizens from leaving the country must be subject to clear time limits and judicial oversight, reinforcing the principle that immigration law must operate within the framework of the Rechtsstaat (Rule of Law).

Furthermore, the doctrine of Tri Fungsi Imigrasi (The Triple Function of Immigration) has evolved. Historically, the functions were defined as:

  1. Service to the community (Pelayanan Masyarakat);
  2. Security and Law Enforcement (Penegakan Hukum dan Keamanan);
  3. Facilitator of Economic Development (Fasilitator Pembangunan Ekonomi).

While Law No. 9 of 1992 prioritized the security function, the current legal regime under Law No. 6 of 2011 and its subsequent amendments increasingly emphasizes the “Facilitator of Economic Development” function, aligning immigration policy with the national strategic objective of increasing foreign direct investment.

Sources