The legal framework governing immigration offenses in Indonesia is primarily established under Chapter XI of Law No. 6 of 2011 on Immigration (Undang-Undang Nomor 6 Tahun 2011 tentang Keimigrasian), as amended by Law No. 6 of 2023 regarding the Stipulation of Government Regulation in Lieu of Law No. 2 of 2022 on Job Creation into Law. These statutes delineate specific criminal acts (Tindak Pidana Keimigrasian) that are distinct from administrative violations, carrying penalties of imprisonment and substantial fines.

Criminal Offenses and Penalties

Immigration crimes are categorized based on the nature of the violation, ranging from procedural non-compliance to organized transnational crimes such as human smuggling.

Illegal Entry and Exit Article 113 of Law No. 6 of 2011 stipulates that any person who enters or exits the Indonesian territory without passing through an Immigration Border Control (Tempat Pemeriksaan Imigrasi) is subject to a maximum of one year imprisonment and/or a maximum fine of IDR 100,000,000.

Misuse of Stay Permits One of the most frequently prosecuted offenses involves the misuse of immigration status. Article 122 of Law No. 6 of 2011 provides:

“Dipidana dengan pidana penjara paling lama 5 (lima) tahun dan pidana denda paling banyak Rp500.000.000,00 (lima ratus juta rupiah): a. setiap Orang Asing yang dengan sengaja menyalahgunakan atau melakukan kegiatan yang tidak sesuai dengan maksud dan tujuan pemberian Izin Tinggal yang diberikan kepadanya; b. setiap orang yang menyuruh atau memberikan kesempatan kepada Orang Asing menyalahgunakan atau melakukan kegiatan yang tidak sesuai dengan maksud dan tujuan pemberian Izin Tinggal yang diberikan kepadanya.”

(Punished with imprisonment for a maximum of 5 (five) years and a fine of a maximum of IDR 500,000,000.00 (five hundred million rupiah): a. any foreigner who intentionally misuses or carries out activities that are not in accordance with the intent and purpose of the Stay Permit granted to him/her; b. any person who orders or provides an opportunity for a foreigner to misuse or carry out activities that are not in accordance with the intent and purpose of the Stay Permit granted to him/her.)

This provision extends liability to sponsors or employers who facilitate the misuse of a permit, such as employing a holder of a Visit Visa for professional labor.

Human Smuggling Article 120 defines human smuggling as an organized crime. Any person who carries out actions aimed at seeking profit, whether directly or indirectly, for themselves or others, by bringing people into or out of Indonesia illegally, faces a minimum of five years and a maximum of 15 years imprisonment, and fines between IDR 500,000,000 and IDR 1,500,000,000.

Document Fraud and Forgery Article 126 proscribes the fraudulent use of travel documents. Specific criminal elements include:

  1. Using a forged or altered Indonesian Travel Document or Foreign Passport to enter or exit Indonesia.
  2. Providing false data or incorrect information to obtain an Indonesian Travel Document.
  3. Using another person’s valid Travel Document as if it were one’s own.

Corporate Liability Under Article 134, if an immigration crime is committed by or on behalf of a corporate entity, the criminal charges and sanctions may be imposed on the corporation and/or its management. For corporations, the only applicable criminal sanction is a fine, which is tripled from the maximum fine stipulated for individuals in the respective article.

Investigation and Prosecution Procedures

The investigation of immigration crimes is conducted by Civil Servant Investigators (Pejabat Pegawai Negeri Sipil or PPNS) within the Directorate General of Immigration. According to Article 105 of Law No. 6 of 2011, immigration investigators are granted the authority to:

  1. Receive reports or complaints.
  2. Examine persons suspected of committing immigration crimes.
  3. Search premises and seize evidence.
  4. Request information and evidence from individuals or legal entities.
  5. Arrest and detain suspects in coordination with the Indonesian National Police (POLRI).

The procedural framework follows the Indonesian Criminal Procedure Code (Kitab Undang-Undang Hukum Acara Pidana or KUHAP). Once an investigation is complete, the case file is submitted to the Public Prosecutor (Jaksa Penuntut Umum) for trial in the District Court (Pengadilan Negeri).

Judicial Review of Immigration Laws

Judicial review in the Indonesian context occurs at two levels: the Constitutional Court (Mahkamah Konstitusi) for the review of statutes against the Constitution, and the Supreme Court (Mahkamah Agung) for the review of lower-level regulations against statutes.

Constitutional Court Review of Law No. 6 of 2011 The Constitutional Court has played a critical role in refining the limits of immigration enforcement power. A landmark decision is Decision No. 40/PUU-IX/2011, which reviewed the provisions on “Prevention” (Pencegahan—exit bans). The Court ruled that the authority of the Minister of Finance and other non-judicial bodies to impose indefinite exit bans was unconstitutional. The Court mandated that:

  1. Exit bans must have a clear time limit (currently six months, extendable once).
  2. The authority to request an exit ban must be strictly regulated to prevent the infringement of the constitutional right to freedom of movement (Article 28E Paragraph 1 of the 1945 Constitution).

In Decision No. 64/PUU-IX/2011, the Court addressed the duration of administrative detention. While the case primarily concerned administrative measures, it established the principle that any deprivation of liberty by immigration authorities must be subject to judicial oversight to prevent arbitrary detention.

Pre-Trial Review (Pra-peradilan) Under Article 77 of the KUHAP, suspects in immigration criminal cases have the right to file a Pra-peradilan petition in a District Court. This mechanism allows a judge to review the legality of:

  1. Arrests and detentions conducted by immigration investigators.
  2. The termination of an investigation (SP3).
  3. The seizure of assets or documents.

If the court finds that the PPNS did not follow the procedural requirements stipulated in the KUHAP or Law No. 6 of 2011, the arrest or detention may be declared void, and the suspect must be released.

Judicial Review of Administrative Decisions

While criminal acts are tried in District Courts, administrative decisions made by immigration officials (such as the denial of a permit or a deportation order) are subject to review by the Administrative Court (Pengadilan Tata Usaha Negara or PTUN). According to Law No. 5 of 1986 (as amended), a plaintiff must demonstrate that the immigration office’s decision violated prevailing laws or the General Principles of Good Government (Asas-Asas Umum Pemerintahan yang Baik). However, Article 67 of the Administrative Court Law stipulates that a lawsuit does not automatically suspend the execution of the administrative action unless the court issues a specific stay order (penetapan penundaan).

Sources Cited