Introduced in 2011, Law No. 6 of 2011 on Immigration, as amended several times, most recently through the issuance of Regulation of the Government in Lieu of Law No. 2 of 2022 on Job Creation (collectively referred to as “Law 6/2011”), currently serves as the umbrella framework for applicable provisions on immigration, which range from prerequisites to entry into or exit from Indonesian territory to immigration crimes.

However, in response to several judicial review petitions on Law 6/2011 that were issued by the Constitutional Court (Mahkamah Konstitusi – “MK”), the currently deliberated Draft Bill on the Third Amendment to Law 6/ 2011 (“Draft Bill”) has now been approved as a legislative product on the initiative of the Indonesian House of Representatives (Dewan Perwakilan Rakyat – “DPR”).[1]

In its present state, the Draft Bill is set to amend six articles that currently feature under Law 6/2011. Among various adjustments introduced under the Draft Bill, holders of Permanent-Stay Permits (Izin Tinggal Tetap – “ITAP”) are now entitled to receive re-entry permits with validity periods that are in line with those of the relevant ITAP.[2] Currently, re-entry permits may only be granted for two-year validity periods that do not exceed the original ITAP validity periods.[3]

Against the above backdrop, this edition of Indonesian Legal Brief (“ILB”) summarizes the new provisions that have been introduced under the Draft Bill, specifically as they relate to the following matters:

1. Adjusted Prevention (Pencegahan) and Prohibition (Penangkalan) Measures; and
2. Expanded Sources of Funding.

Adjusted Prevention and Prohibition Measures

As outlined above, one of the justifications for the introduction of the Draft Bill is to ultimately ensure that provisions set out under Law 6/2011 are in line with the results of judicial review petitions that specifically address this framework. In this regard, the Draft Bill has now amended two aspects that specifically relate to preliminary immigration investigations and investigations, as currently feature under Law 6/2011, by bringing said provisions into line with the relevant judicial review decisions, as highlighted in the following table:

Moreover, the Draft Bill now states that immigration prohibition measures may only be imposed in line with a maximum 10-year period and may only be extended for a further, single 10-year period.[8] Currently, maximum validity and extension periods of six months are available.[9]

Additionally, the Draft Bill states that immigration prevention and prohibition measures will be further addressed under a forthcoming Regulation of the Minister of Law and Human Rights.[10] Differing from the currently applicable Law 6/2011, such details are currently addressed under Regulation of the Government No. 31 of 2013 as the Implementing Regulation to Law 6/2011, as amended several times, most recently through the issuance of Regulation of the Government No. 48 of 2021 (collectively referred to as “Regulation 31/2013”).[11]

Expanded Sources of Funding

Law 6/2011 mandates that funds for the implementation and enforcement of the current framework should be borne through the State Expenditure Budget (Anggaran Pendapatan dan Belanja Negara – “APBN”).[12] However, the Draft Bill now allows for funding to also be sourced from other legitimate sources of funding in accordance with relevant Laws and Regulations, including:[13]

1. Utilization of state-owned goods and/or utilization of assets under control;
2. Utilization of cooperation schemes between the government and business entities; and/or
3. Participation of other parties (e.g. assignment of state-owned enterprises, strengthening the role of state-owned legal entities and contributions of the private sector).

Key Takeaways

If the Draft Bill ultimately comes into force, then the third amendment will provide greater legal certainty for individuals who are subject to the imposition of immigration prevention and/or prohibition measures. This improved clarity is in line with two judicial review petitions relating to Law 6/2011. Moreover, the expansion of the applicable sources of funding for immigration services should hopefully minimize dependence on the APBN, thus allowing for the further accommodation of other needs relating to the organization of immigration services by the Ministry of Law and Human Rights beyond those that are currently borne by the APBN. This, in turn, should ultimately improve the country’s various immigration services.[14]

Source: hukumonline.com