PENEGAKAN HUKUM KEIMIGRASIAN TERHADAP PENYALAHGUNAAN VISA

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1 PENEGAKAN HUKUM KEIMIGRASIAN TERHADAP PENYALAHGUNAAN VISA Disusun sebagai salah satu syarat menyelesaikan Program Studi Strata II pada Jurusan Magister Ilmu Hukum Fakultas Pascasarjana Oleh; RAHMATULLAH AYU H. R PROGRAM STUDI MAGISTER ILMU HUKUM FAKULTAS PASCASARJANA UNIVERSITAS MUHAMMADIYAH SURAKARTA 2017

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5 THE LAW ENFORCEMENT AGAINST VISA ABUSES BY FOREIGN LABOR Abstrak Sebagai salah satu negara yang berkembang yang juga bergabung sebagai salah satu anggota MEA ( Masyarakat Ekonomi Asean) Indonesia mulai memberlakukan kebijakan bebas visa untuk 169 ( seratus enam puluh sembilan) negara yang akan berkunjung ke Indonesia, bagi negara yang tidak termasuk dalam daftar bebas visa bisa menggunakan visa kunjungan untuk datang ke Indonesia. Kebijakan ini diharapkan bisa memberi manfaat dan memudahkan orang asing yang ingin berinvestasi atau berlibur di Indonesia. Disamping keuntungan dari kebijakan ini tentunya juga menimbulkan dampak buruk, seperti masalah keimigrasian yaitu tindakan penyalahgunaan visa oleh orang asing yang biasanya menggunakan bebas visa atau visa kunjungan untuk melakukan hal illegal seperti bekerja, penyelundupan, kejahatan internasional, dan lain-lain. Oleh karena itu, imigrasi harus menegakkan hukum keimigrasian terhadap pelanggaran visa oleh pekerja asing. Penelitian ini akan membahas tentang (a). Apa itu penyalahgunaan visa: bentuk, hukuman, dan pelaksanaan penegakan hukumnya. (B). Apa model penegakan hukum yang digunakan untuk menegakkan hukum imigrasi: bagaimana menerapkan model dan bagaimana menangani pelanggaran visa melalui model penegakan hukum tersebut. Kata Kunci: Visa, Penegakan Hukum, Penegakan Hukum Keimigrasian. Abstract As one of the developing countries, who also joined as a member of the MEA (Asean Economic Community) Indonesia began to enact a visa-free policy for 169 (one hundred and sixty nine) countries to visit Indonesia, for countries who not included in the free- Visa list, they can use the On Arrival Visa (VOA) to come to Indonesia. This policy is expected to provide benefits and facilitate foreigners who want to invest or vacation in Indonesia. Besides the advantages of this policy, of course, also have adverse impacts, such as immigration problems that are visa abuses by foreigners who normally use visafree or On Arrival Visa to do illegal activities such as work, smuggling, international crimes, etc. Therefore, immigration must enforce immigration laws against visa violations by foreign workers. This research will discuss about (a). What is a visa abuse: the form, punishment, and enforcement of the law, (b). What is the law enforcement model used to enforce immigration law: how to apply the model and how to handle visa violations through the law enforcement model. Key: Visa, The Law Enforcement, The Law Enforcement of Immigration Law. 1. INTRODUCTION The decision to do migration is not much different from other immigrants, that is, because of the expected benefits. The existence of information about the good quality of life abroad makes people want to have the same opportunities to migrate, although government restrictions on migration in origin countries or immigration destinations may 1

6 reduce their welfare. 1 According to Buckley in Warren F. Schwartz, a man will decide to migrate because of some considerations such as family, social and economic issues. 2 The benefits that immigrants may be able to get are divided into two categories: 3 ((a) the labor market in the immigration country provides a better opportunity; And (b) the immigration state is more attractive due to physical considerations, such as allowing family reunification or allowing migrants to escape from one form or other abuse or social unrest in the home country. One of the favorite destinations for immigrants is Indonesia because it lies between two continents and two oceans, and Indonesia also has a strong history of migration between the Middle East, Asia and Africa that makes Indonesia a strategic transit country Indonesia also provides many opportunities for foreigners in various fields such as employment, education, culture, and tourism. So immigrants think that the opportunity to get a better life in Indonesia is bigger than their home country. Immigrants who are later referred to as foreigners (OA / Foreigners), according to immigration law of the Republic of Indonesia are persons who do not have Indonesian citizenship, who enter or remain under the authority of the Territory of the Republic of Indonesia based on written permission by the Directorate General of Immigration. The entry permit is then called a visa that is used for entry or exit from the territory of Indonesia. In other purposes, a visa is used to obtain a residence permit and will only be granted to a qualified foreigner under the rule. 4 In 2016, based on the principle of mutual benefits, reciprocity and participation towards joining Indonesia into MEA members, the Indonesian government through the Republic of Indonesia's presidential decree authorizes the grant of visa-free visits to 169 countries from around the world. Countries that are included in the list of visa-free admission countries are no longer required to pay visa fees upon entering Indonesian territory, but they may only stay for approximately 30 days 5. For other countries not included in the visa-free visa list of visits may use visa on arrival (VOA). To get VOA, 1 Buckley. F. H. Reviewed work: Justice in Immihration by Warren F. Schwartz. Springer Vol. 94, No. 3/4. page: 15 2 Ibid. P Ibid, P UU N0.6.Year Concern Immigration. Article 34 5 The Presidential Regulation of The Republic of Indonesia. No 21, Visit Visa Exemption, Year 2016, Article 2. 2

7 foreigners are required to pay the visa fee of USD.35. As well as BVK, VOA has a validity period of 30 days from the date of arrival, and may be renewed once with a 30 day stay. The government hopes that the policy of granting visas will provide convenience to foreign investors who want to visit Indonesia. In addition, this policy is also expected to increase tourism and socio-cultural interest. The process for obtaining this visa is not so complicated, foreigners only need to show passports and return passes / pass tickets to the assigned immigration officer. Unfortunately, the free visa exempted brings bad indication beside its beneficial use, that is the increases of immigrant problems. On of immigration office at Surakarta shows the increase of immigrant problem who abuse visa within three years period, that is from 2014 to There are 67% offense committed by expatriates to temporary visa usage, ie 20% using VOA, 20% using BVK, and 27% using VKU. While as many as 33% of foreigners violate limited visas (vitas). This indicates that the number of temporary visa violations is higher than the limited visa. In this study the issue of limited visa infringement will be discussed more in depth. Pertumbuhan pelanggaran visa pada tahun 2014 adalah 37%, turun pada tahun 2015 menjadi 14%, dan meningkat pada tahun 2016 menjadi 49%. 7 Most violations occur because foreigners use temporary visas to work and they have violated the provisions of article 122 of immigration laws where temporary visas are not allowed to work. The percentage of visa violations above shows that cases of visa abuse change every year, ie decreases and increases.if the percentage increase continues to increase, it is likely that the same conditions could occur in the next year, especially if the government does not improve enforcement of immigration regulations.. 2. RESEARCH METHODOLOGY This study is an empirical law study in which this method is a legal method that serves to be able to see the law in the real sense and examine how the law works in a community environment, empirical research is often also called sociological research. According to Bambang Waluyo, empirical research is a research conducted to examine the actual 6 Immigration office of Surakarta s data about visa abuse in year 2014, 2015, to Ibid. 3

8 situation or real condition that occurs in the community with the intention to know and find facts and data collected, where after the required data is collected then the research will continue to identify the problem Ultimately leading to problem solving. The focus of this research lies in the implementation of the law or norm (law) on all actions and behavior that often occur in the life of the community. Legal research taken is the facts that exist within a community, legal entity or government agency. In this study, research will be conducted using judicial and non judicial studies related to the problems that exist in the background of the problem. 3. RESEARCH AND DISCUSSION Visa violations do not occur only in some places in Indonesia, but visa violations are also commonly found in border areas, cross-border posts, and immigration areas. Perpetrators of visa violations are not only foreigners, but also Indonesian citizens (WNI) themselves, where according to the Head of the Surakarta First Class Immigration Office, citizens who have links with foreigners have an important role for the presence of foreigners as guarantor. Guarantor are people who have direct responsibility for obtaining visas including facilitating the life of expatriates in Indonesia. Formally, the guarantor must submit an expatriate document to the Directorate General of Immigration to obtain a visa so that the foreigner can enter and stay in the territory of Indonesia within the specified time. Examples of cases taken in this study came from one of the Immigration Offices located in Surakarta within three years, ie in 2014, 2015, and The number of foreigners in the last three years is 813 people (535 of whom are women and 278 are men). The cases indicate the number of visa violations by foreigners that occurred in the Surakarta region as shown in the table below. Table No Year Temporary Stay Limited Stay Total Ammount VOA BVK VKU ITAS ITAP Ammount Traffic Data of Foreigners at Immigration Office of Surakarta. Year

9 Note: -VOA : Visa On Arrival - ITAS : Limited Residence Permit -BVK : Free Visa Arrival - ITAP : Permanent Residence Permit -VKU : Bussines Visa From the above table it can be seen that there are 67% of violations committed by expatriates using temporary visas, of which 20% violates VOA, 20% BVK, and 27% are VKUs. While the rest, ie 33% OA abuses Vitas. This indicates that the number of temporary visa abuses is higher than Vitas. Temporary visas provide a lot of convenience to expats who have a destination for sightseeing, business, or visiting family. However, the provision of a temporary visa policy raises the possibility of visa abuse as seen in the above table, of which 67% of abuse has been committed by expatriates using temporary visa-primarily visa-free visas. Visa-free is regulated and ratified in the Presidential Regulation of the Republic of Indonesia stating that Indonesia will free the visa charge on 169 countries in the world with a stay period of 30 days. This useful facility is intended to make the easier way for foreigners and Indonesians themselves to cultivate their welfare based on the principle of reciprocity as written in the decree of the President of the Republic of Indonesia regarding visa-free visits.the presence of foreigners in Indonesia is not entirely harmful to the state, but the law must be upheld and strengthened. The proximity of Indonesia to the free market allows the emergence of various bad threats to state security.a theorist states that the phenomenon of immigrants gives different opinions, some of them provide new knowledge, have excellent capabilities and provide benefits for the statein terms of development. 9 The law in this case not only aims to impose restrictions on foreigners, but the law must be able to control foreigners to continue to comply and respect the rule of law in Indonesia. This objective is in accordance with the objectives of a state of law in which the law is the supreme power and is made to control and protect its country. 10 The increasing cases of visa violations in the Unitary Territory of the Republic of Indonesia show that immigration law enforcement still has weaknesses. This is evident 9 Christina Boswell, The Political Uses OF Expert Knowledge : Immigration Policy and Social Research, 2009, P James R Silkenat, James E.Hickey, The Legal Doctrines of the Rule of Law and the Legal States (Reechtsstaat), 2014, P

10 from the data of the use of visas used by illegal foreign workers who deliberately use temporary visas to work. Generally foreigners often pretend to travel (tourists), make family visits, and move around to avoid direct contact with immigration, even among them already living or married to Indonesian citizens. 11 Immigration law enforcement is not only upheld by immigration, but the entire Indonesian community. To keep the state free from adverse threats to foreigners traffic, the table below will explain the rules of immigration law in detail Table. 1.3 Violation List. 12 No Year Violation Point Amount Jo 122 Jo 83 (1) (1) jo 122 (e) Jo 123 Jo 122 (a) Jo 123 (a) Amount (a) jo 75 (1) Note: - Point 38 Jo 122 : Temporary visa abuse of doing illegal activity. - Point 51 Jo 83 (1): Expired Limited Stay and deportation given. - Point 52 (e) Jo 123: expatriate who marries Indonesian and giving falsification data in order to get license permit to stay with his family in Indonesia. - Point 75 Jo 122 (a) : Deportation, prevention, and deterrence impose for stay permit abuse. - Point 75 (1) jo 122 : Deportation given, fine imposed, and imprisoned sanction for expatriate who intentionally or not gives falsification data to the 11 Direct interview with The Head of PPNS at Immigration Office of Surakarta, Adi Purwanto on January 13 th Violation List based on The Rule of Law of The Republic of Indonesia concern in Immigration at The First-Class Immigration Office of Surakarta. This data is taken within three years period. 6

11 immigration official in order to get stay permit or people whom guarantee and intentionally giving facility to the defendant. - Point 75 jo 123: Deportation, fine, and imprisoned sanction to expatriate whom intentionally doing activity which contrary from his stay permit, including and manipulate his identity information. - Point 78: Deportation, Deterrence, and over stay fine to expatriate whom his permit is already end and still living in Indonesian s territory within 60 days. - Point 122 (a) jo 75 (1) : Fine and imprisoned sanction to expatriate whom intentionally doing manipulation data and visa abuse which later imposed deportation process. - Point 123 : Fine and 5 years imprisoned for expatriate whom intentionally manipulate his personal data and doing visa abuse to living in Indonesia. The table above shows the frequent violations at the Surakarta immigration office from 2014 to 2016, similar to the table of 1.2 legal action imposed on the defendant is the enforcement of administration and pro-justicia. The PPNS at the Surakarta immigration office found many abuses committed by foreigners in the Surakarta region that carried out some illegal activities such as working without permission or conducting commercial activities. 13 They use visa-free or visa visas to visit Indonesia and work in the company. Some of them use business visas that have multiple entry permits, so they can re-enter Indonesia. Increased visa violation in 2014 was 37%, in 2015 fell to 14%, and then increased by 2016 to reach 49%.Most violations occur due to the use of visit visas and BVK in violation of Section 122 of the Immigration Law, in which some foreigners engage in illegal activities that are contrary to their visa including providing document data or data manipulation during the visa application process is considered unlawful for immigration.the percentage of visa violations above shows that cases of visa abuse change every year, ie decreases and increases. If the percentage decline and increase both more than doubled in a year, then the same conditions could happen next year if the government does not improve and strengthen the enforcement of immigration regulations. 13 Interview with Al Ayubi (PPNS staff ) at immigration office of Surakarta, on January 20 th

12 Lawrence Friendmand said that the success of law enforcement also depend on its law officer hence PPNS and all of immigration people should keep on eye with people who hold Indonesian stay permit including the Indonesian, foreigners, and so does the immigration people itself. The enforcement of law, is not only do when foreigners do violation only. The enforcement actually has already do in several phases, that is when before the foreigners enter, arrived, and living in Indonesia. This enforcement is called the supervision program, its is also written on the immigration law as the main concern. In the Government Regulation of the Republic of Indonesia on Immigration, it is written that there are two types of law enforcement that have been discussed above namely Immigration Measures that impose administrative sanctions and Pro-Justicia Actions that use the judicial process. While the legal advisor of both actions is PPNS as the executor and the first Subject that must prevent and handle actions that may be indicated in violation of immigration rules. Therefore, immigration laws set up surveillance programs designed to control and prevent regulatory violations of direct supervision and administrative oversight. 14 The model used by PPNS to enforce the law is not only taken from the consideration and track record of expatriate documents, but how to develop the phenomenon into a case. First, the use of direct supervision as written in the immigration declaration containing the administrative process, the place of visit, and the obligation to report the expatriate documents by the company. Collecting documents and verifying with data systems is one common way to check expatriate data, but when connecting with other immigration and cross-border checking people, it helps PPNS get more information about their previous recordings. The second supervision is called an oversight-approach, this model is used to draw the awareness of the people around the residence OA, so that the awareness of the existence of foreign workers is illegal and how the importance of law enforcement in this country increases. As a nation of Indonesia, every citizen must fight against his country and respect the law and his self-enactment. Together with the PPNS, they must remain alert to any indication by not complying with the law by expatriates or other concerned parties. In the case of pro-justicia, the most important information comes from the 14 UU no 16 Year 2016 Concern on immigration Point 25. 8

13 community. This would roughly help immigration to find indications of non-compliance laws rather than direct supervision. Therefore, the public wants to be open, selective, and responsive to the expatriates around them. Selective means that people must share good expatriates with good benefits or not, while responsive means that they must tell if there are expats living near them. Immigration always conducts socialization, calling, and warning approaches in this supervisory approach. Such as socialization programs, can be started from institutions under government, companies, and the whole community with direct presentations, news, online media, and announcements. This approach should often be done to extend law enforcement in the public sphere, as it is still possible for Indonesians who also do not comply with the regulation for various reasons. From the above enforcement model, the high instinct and innovative should be enhanced by PPNS itself as it is an important skill that can help PPNS to analyze some phenomena and cases of abusive violations. Enforcement should not only be imposed by PPNS or other legal agents, but must be enforced by all Indonesians to maintain our legal unity. If all Indonesians are aware and concerned about the rules not only for themselves, cases of abuse and other cases should be reduced over time. The law enforcement model contributes greatly to enforcing immigration and immigration control regulations. Both direct enforcement and approaches are used to reduce immigration problems. the demand for immigration officers to add skilled employees should also be considered by the government, as it will affect the service process and enforcement of immigration. On the other hand the obligation to have foreign language skills also has a great influence on immigration to communicate with expats directly. Due to the lack of unskilled language will make the officers only pay attention to their documents, then the expatriate can enter or leave Indonesia easily. On the other hand, administrative oversight implies that officers should conduct brief interviews on expatriate arrivals or departures. In addition, a higher standard should undoubtedly be enforced to demonstrate the strictness and importance of immigration regulations in Indonesia. Higher standards must be balanced with more optimal enforcement practices by officers, 15 selective screening, 15 Christina Boswel and Thomas Straubhaar, The Illegal Employment of Foreigners in Europe, P

14 direct awareness and supervision of expatriate sites or underwriters can help immigration prevent any indication of abuse because perhaps even legal expatriates can still be shown to carry out illegal activities. Certainly higher regulatory standards must be supported by appropriate sanctions or penalties, and should be upheld as the objective of a lawful state in which the state controls its property by the law. `Both law enforcement standards and methods have a strong relationship with law enforcement, law enforcement forces also have an effect on law enforcement processes. Weak law enforcement will undermine the law itself, and certainly other negative factors will threaten the life of the country. In this case, the government is directly responsible for controlling and managing it in a line under the law. Regulatory balancing, law enforcement, and the community will empower Indonesia as a legal state that can manage and protect the country from the threat of illegal foreign labor as a result of visa violations. Law enforcement of increased visa violations should be addressed as soon as possible, starting with improving and optimizing immigration services including online services. The government should ask the immigration officers to have foreign language skills such as English, Japanese, Chinese, and so on. In addition, Immigration must also have document detection tools and language translator engine for easy and efficient foreign supervision. Sanctions against certain parties who intentionally do not report the existence of OA to immigration should be more severe, especially on lodging managers, hotels, rental housing and regional heads. Immigration also reserves the right to require any inn, hotel, board or messenger manager to register as an immigration partner with a partner identity or permission to receive OA as a guest or user of the facility at their place of business. Which means, the business moving in the inn must have permission to receive OA to stay. In addition to the guarantor / corporation and inn entrepreneurs, citizens who are underwriters of OA must also have a license as an OA sponsor, for example having a family relationship as evidenced by the deed of civil registration or trial. So immigration can determine whether the OA deserves to be granted permission to stay in Indonesia for a long time. This is aimed at restricting the movement of illegal OA and easier immigration supervision, because then every foreigner who resides in Indonesia will be 10

15 more respectful of Indonesian immigration law rules and the public will be more vigilant in the future. 4. CONCLUSION 4.1 Conclusion This study concentrates on implementation of law enforcement against visa abuses. The cases that have occurred give some opinions that OA often violates immigration rules for personal gain. This can be seen from the data of immigration violations against visa abuse, so in this study the conclusion that can be taken is as: a. Law enforcement is conducted through the supervision of immigration officers and community reports on the activities and whereabouts of foreigners. Law enforcement visa violation is done by PPNS immigration through two actions, namely administration and pro-justicia where deportation is the most recent sanction given to illegal foreign worker who was preceded by detention and detterance. b. There are two enforcement models implemented by immigration officers: a direct supervisory and supervisory approach. Immediate monitoring is carried out by PPNS under immigration rules, beginning with foreign data collection, interviews and lansgung interactions at immigration offices or cross-border posts. Meanwhile, the supervisory approach is carried out by PPNS to attract the public to know the importance of the existence of illegal Foreign Workers through socialization, the establishment of a foreign inspection team (PORA) and requiring the lodging entrepreneurs to report the presence of foreigners in their places. 4.2 Suggestion From the above conclusions, the researcher will give some suggestions that could be useful in the future. (a). Governments with law enforcement should raise legal awareness and moral commitment to the whole community to reduce abuse in the use of immigration services, optimize and review the forms of sanctions imposed on perpetrators, and empower immigration services and facilities. Where immigration is authorized to block data of counterfeiting or misconduct in using immigration services. (b). Legal agencies and related institutions should provide further dissemination of 11

16 immigration knowledge to communities and foreigners in the territory of Indonesia including the positive and negative impacts of the existence of expatriates, closely related to the state enterprise, and the enhancement of foreign language abilities for their enforcement councils especially in English. 4.3 Thank s Note Thanks for all of supports by each person who already gave much contribution and advices to finish this study to achieve Postgraduate of law at Muhammadiyah University of Surakarta. (a). Allah S.W.T for blessing me to finish this research. (b). Prof. Dr. Aabsori, S.H, M.Hum, who always guide the researcher to finish this research, and ( c). Dr. Ir. Imam Hardjono, M.S, who also gave the advices and guide the researcher patiently. (d) Dearest friend of Postgraduate of Law at Muhammadiyah University of Surakarta year BIBLIOGRAPHY Ahmad Yulianto. Penegakan Hukum Keimigrasian Menurut UUD Keimigrasian. Jurnal Hukum. ( Ali, Muzafar. Linda Briskman. Asylum Seekers and Refugees in Indonesia : Problems and Potentials International Journal. Vol 8, No 2 (2016). Bingham, Tom. The Rule of Law Penguin books. New York. Bintarto, Lucky Aagung Pelaksanaan Penyidikan oleh Penyidik Pegawai Negeri Sipil Direktorat Jenderal Imigrasi dalam Rangka Penegakan Hukum terhadap Pelanggaran Undang-Undang Keimigrasian. Universitas Diponegoro. Boswell, Christina The Political Uses OF Expert Knowledge : Immigration Policy and Social Research. New York: Cambridge University Press. Boswel, Christina. Thomas Straubhaar. The Illegal Employment of Foreigners in Europe International journal. Buckley. F. H. Reviewed work: Justice in Immihration by Warren F. Schwartz. Springer Vol. 94, No. 3/4. ( Costra, Pietro. Danilo Zolo The Rule of Law: Theory History and Criticism. University of Florence. Netherlands: Springer. Flemming, James E. Getting to the Rule of Law New York University Press. 12

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