Vol.4, No.05, Mei 2023

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P-ISSN: 2723-6595

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Jurnal Indonesia Sosial Sains, Vol. 4, No. 05, Mei 2023 425

Selective Policy in Handling Illegal Immigrants

Kristofel Aditya Prathama Pardamean Hutauruk

, Ahmad Redi

, Suparno

1,2,3

Universitas Borobudur

Email: [email protected], [email protected], [email protected]

Corresponding Author: [email protected]

ARTICLE INFO

ABSTRACT

Submitted

:22-04-2023

Received

:25-04-2023

Approved

:05-05-2023

The weak legal position of the Indonesian state in tackling the

problem of illegal immigrants has resulted in the Indonesian state

no longer being a transit country for illegal immigrants from the

Middle East to Australia but has become a destination country

because the people in Indonesia are known to be friendly and

welcoming in dealing with illegal immigrants who later became

destination countries with the target of seeking political asylum,

human smuggling agents deliberately made Indonesia a destination

country for people smuggling. Various efforts have been made by

obligated parties, such as the Police institution. The steps taken by

the National Police so far have been to arrest illegal immigrants and

smugglers, but the investigation process does not use the Special

Law, but the Migration Law, so the results obtained do not show

significant changes. After Indonesia's independence, Indonesia did

not implement the previous policy, namely the "open door policy";

which is considered no longer appropriate. Therefore the

Government of the Republic of Indonesia issued a new policy,

namely a selective policy that allowed the entry of foreigners only

according to their needs and provided benefits for the development

of the State and the Government of the Republic of Indonesia.

Keywords: Wisdom; Selective

Policy; Handling; Illegal

Immigrants.

Attribution-ShareAlike 4.0 International (CC BY-SA 4.0)

1. Introduction

Indonesia is home to the world's largest archipelago. Indonesia's location is very

special and important. It can be seen from the geographical location of Indonesia which is

between two oceans, namely the Indian Ocean and the Pacific Ocean. The geographical

location of Indonesia is also between two continents, namely the continent of Asia and the

continent of Australia/Oceania. Even though it is not a destination country, with the

consequence of its geographical location, the country of Indonesia is the final stopover for

waves of asylum seekers and refugees going to the destination country, namely Australia. The

presence of illegal immigrants will raise demographic problems (population) and is related

to social-economic conflicts and is directly proportional to the crime rate (Winarno, 2008).

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The United Nations High Commissioner for Refugees (UNHCR) is said to have

registered approximately 1.9 million asylum seekers. Of these, 36,200 individuals were

recorded as attempting to look for shelter in Australia. However, applying for asylum is not

an easy process. From their home country, asylum seekers travel hundreds or even

thousands of kilometers. Not inconsistently, the greater part of them experience passing and

debacle on their way. Asylum seekers travel in a variety of ways. Shipping lanes on the sea

are one of them. Additionally, they are unable to immediately reach their destination. In most

cases, they need to make a transit stop in some countries. Asylum seekers from Asia and the

Middle East, for instance, frequently make Indonesia their stopover destination when

traveling illegally to Australia (Rahayu, 2022).

Immigrants are people who come from other countries and live in a country. In the

past, the term immigrant was not limited to humans as perpetrators, but could also be used

for animals and objects that moved across country borders (Hujjailah, 2016). Initially, this

population movement occurred due to wars and natural disasters, so the residents looked

for other, safer areas. Then the term immigrants were narrowed down to humans only after

countries experienced developments that automatically created laws and regulations. Law

No. 6 of 2011 concerning Immigration stipulates that:

"To settle in Indonesian territory, a permanent residence permit is required which is

given to foreign nationals who have valid travel documents. If the foreign national does not

have a valid travel document and unclear permits, the immigration official can expel or

deport from Indonesian territory or refuse entry to Indonesian territory."

There are two significant regulatory elements in the Immigration Law of the Republic

of Indonesia Number 6 of 2011, namely:

a. arrangements for a variety of issues pertaining to the flow of people into, out

of, and around the Republic of Indonesia's territory;

b. Arrangements regarding various surveillance not only for foreigners but also

for Indonesian citizens in Indonesian territory, to uphold state sovereignty.

Current conditions in Indonesia only have 13 Immigration Detention Centers

(RUDENIM) to accommodate asylum seekers who eventually stop in Indonesia (Hamidi &

Christian, 2021) . Of course, the number of detention centers is minuscule when compared to

the thousands of asylum seekers who enter Indonesia. The fact that Indonesia is a country of

transit (in transit) for illegal immigrants is evident from the duration of their stay. As many

as 17.50 percent of immigrant respondents stated that they lived in Indonesia for 2-4 weeks.

It was the immigrants could pause for their next journey, change smuggling agents, or use

transit as a separate strategy before entering Australian territory.

The high number of foreigners entering the territory of Indonesia requires the

Government of Indonesia to adopt certain policies so that the negative impacts arising from

these migration flows can be minimized. Through a selective policy, the Indonesian

government selects which foreigners are permitted to enter the Indonesian state's territory.

The Indonesian state will not allow all foreigners to enter its territory. The selective policy

will be applied more selectively to every foreigner who comes from vulnerable countries.

Each country has its terms for categorizing these vulnerable countries. In Indonesian

immigration terms, countries that have a certain level of vulnerability are known as calling

visa countries.

According to Indonesian law, immigrants must carry valid identification when

entering Indonesian territory, as stipulated in Article 8 paragraph 1 of Law No. 6 of 2011 on

Immigration. Law enforcement against foreign nationals is aimed at issues of falsification of

identity, lack of documents, registration of foreigners and provision of foreign control books,

abuse of residence permits, illegal entry or stay illegal, expiry of residence permit, being in

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Indonesia outside monitoring by raids and geographic vulnerability in crossings (Santoso,

2014).

Refusals to grant entry permits, immigration actions, and refusals to issue

immigration permits are all examples of administrative forms of law enforcement carried out

by the immigration institution. On the other hand, Pro Justitia law enforcement is the

investigative authority, the task of investigating (summons) is included. , arrest, examination,

search, and confiscation), filing of cases, and submission of case files to the public prosecutor

(Sudiar, 2019).

The initial understanding of the legal process in criminal cases begins with the process

handled by the police as investigators, investigative officers, and other officers. In the case of

enforcing criminal acts in the field of immigration, the authorized party is a civil servant

official. The first understanding of the legal process in criminal cases begins with

investigations, prosecutions, and trials. as defined by Article 4 of the Criminal Procedure

Code, which states that any official of the Republic of Indonesia Police is an Investigator.

Based on Article 119, paragraph 1, of Law No. 6 of 2011 Concerning Immigration,

illegal immigrants without travel documents may be subject to sanctions. From several

immigrants, we can see that there are illegal immigrants who do not have passports and

documents, but they are not processed based on applicable laws and regulations, these

immigrants are placed in the immigration detention room to be deported, in the territorial

principal study it is explained that the criminal rules in the law Indonesia's invitation applies

to everyone who commits a criminal act in the territory of the Republic of Indonesia. Criminal

law applies to anyone who commits an offense in the territory of the State. A State must

uphold the law and maintain law and order in its territory against anyone(ARDIYANTI, n.d.).

The problem in this paper is how is the Implementation of Selective Policy Policy in

Indonesia in Handling Illegal Immigrants in Indonesia.

2. Materials and Methods

The descriptive analytical method was used to write this applied paper. This means

that data that clearly describes problems directly in the field were used, and then the analysis

was done and the problem was solved. Observation and literature review as methods of data

collection in order to solve problems and prepare this paper.

In line with the research objectives to be achieved, the realm of this research is

included in the authentic qualitative research, thus a qualitative approach method will be

used. According to Petrus Soerjowinoto et al., a qualitative method is a method that

emphasizes the process of understanding researchers on the formulation of problems to

construct a complex and holistic legal phenomenon.[8]

Normative juridical approach carried out against certain laws and regulations or

written, linking to issues of illegal immigrants who are in Indonesia.[9] The study describes

the condition of the object under study, i.e., focusing on regulation and the Implementation

of Selective Policy Policies in Indonesia in Handling Illegal Immigrants in Indonesia in

practice.

3. Results and Discussions

3.1. Implementation of Selective Policy in Indonesia in Handling Illegal

Immigrants

History records that Indonesia has long been the prima donna of foreign nationals.

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During the colonial era, Indonesia's wealth of natural resources, namely plantation

commodities, which had a high selling value on the world market, made the territory of

Indonesia a bone of contention for European countries to dominate. When colonized by the

Dutch East Indies government, the established immigration policy was an open policy

(opendeur politiek). This policy made it as easy as possible for foreigners to enter Indonesia,

live there, and become Dutch East Indies citizens. When Indonesia gained independence, the

Dutch East Indies Government's immigration regulations were finally repealed and replaced

by new ones that supported Indonesia's independence spirit (Sande, 2020).

All sovereign countries must carry out the function of inspecting and supervising

every foreign citizen who wants to enter their country's territory to uphold state sovereignty.

Every foreign national who wants to enter the territory of another country will be selected

and sorted. Only foreigners who meet certain conditions will be allowed to enter a country's

territory based on the immigration policy of each country. The selection policy that is carried

out selectively towards foreigners in the field of immigration is a basic theory or principle

that applies universally in all countries, including in the State of Indonesia.

The Indonesian government uses the Indonesian immigration function when

examining and supervising foreigners. The Indonesian immigration function is the state

government's responsibility for facilitating community welfare development, immigration

services, law enforcement, and state security (Article 1, RI Law Number 6 of 2011 concerning

Immigration). The function will be applied to all foreign citizens (foreigners) from the time

the foreign nationals apply for permission to enter Indonesian territory, check documents at

the immigration checkpoint (TPI), while they are, carry out activities, and reside in the

territory of the Republic of Indonesia until the person concerned to escape the sovereign

territory of the State of Indonesia. Specifically, the immigration function is carried out by the

Directorate General of Immigration, Ministry of Law and Human Rights of the Republic of

Indonesia, in coordination with relevant ministries and state agencies.

The Immigration Law of the Republic of Indonesia No. 6 of 2011 specifically outlines

Indonesia's selective immigration policy for foreign nationals. According to the law, any

foreigner who plans to enter Indonesia and obtain a residence permit must uphold human

rights and values while adhering to the purpose of their visit. In addition, the selective

immigration policy of Indonesia explains that only foreigners benefit from and harm nothing.

those who will be permitted to enter the State of Indonesia's territory and maintain

public order.

The application of selective policies is one of the national interests of the Indonesian

state in the field of immigration to protect the Indonesian state's sovereignty from the threats

that the entry of foreigners may face. Looking at Indonesia's selective immigration policy,

there are two key elements. It is a security and prosperity approach that is expected to be

met or unencumbered by the entry of foreigners into Indonesia's sovereign territory. In

practice, you have to balance these two approaches, one approach is as significant as the

other.[11] These two approaches go hand in hand to select every foreign national who wants

to enter the territory of the Indonesian state.

The security approach in this policy is not only related to the traditional security

approach, namely, state security related to militarization and conflict [12] as part of state

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sovereignty, but also related to non-traditional security, namely human security from

Indonesian citizens. The material dimension will be closely related to defining the prosperity

approach, as the arrival of foreigners may benefit Indonesia's economy. However, in this

context, welfare encompasses a wide range of social and psychological dimensions, including

the capacity to give and receive, to receive appreciation and respect, to contribute to useful

work, and to have a sense of trust and belonging in society.[13] In short, how do these

foreigners participate meaningfully and positively in the life of Indonesian society?

Indonesia's selective immigration policy is applied to all foreign nationals who enter the

territory of the Indonesian state without exception. The implementation of this policy is

based on the premise that not all foreigners from developed countries or countries that are

stable in terms of security can benefit the Indonesian state. Conversely, not all foreigners

from poor or vulnerable countries if they enter Indonesian territory will incur losses. The

selection of foreign nationals is vital to prevent the negative impacts that arise from their

entry into the territory of the State of Indonesia.

The entry of foreigners into Indonesian territory with various purposes and interests

has had various effects in all fields. The influence that occurs not only has a positive impact

but also sometimes brings negative effects. One of the negative impacts arising from a large

number of foreigners entering the territory of the State of Indonesia is the increase in

immigration violations.[14] The granting of entry permits to foreigners from calling visa

countries is based on the principle that these foreigners could have a positive impact on the

country's foreign exchange earnings and will not threaten public security and order under

the intent of implementing a selective policy that forms the basis of the Indonesian

Government's immigration policy. The supervisory function must be performed optimally to

minimize the negative effects of foreign arrivals and preserve Indonesia's sovereignty.

The process of collecting, processing, and presenting immigration data and

information for Indonesian citizens and foreigners in order to ensure compliance with

immigration statutes and regulations is known as immigration control (Article 1 point 2 of

Government Regulation Number 4 of 2017 concerning Procedures Immigration Control). The

immigration control system includes administrative supervision such as checking travel

documents, letters, or other documents, photographing, fingerprinting, and managing

immigration data at immigration checkpoints, immigration offices, or representatives of the

Republic of Indonesia abroad and the Directorate General of Immigration, along with field

supervision or operational, such as monitoring or investigation utilizing interviews,

observations and descriptions, reconnaissance, wiretapping, use of information, and other

activities.[14]

Administrative supervision for foreigners from calling visa countries is performed

more strictly and selectively. Meanwhile, the field supervision system for foreigners from

calling visa countries in Indonesian territory is carried out in the same way as the supervision

of foreigners in general, namely through monitoring activities and monitoring operations.

Field supervision is carried out strictly in places where foreigners are located, such as hotels

and inns, crowd centers, and entertainment venues.[14] If proven violating, the foreigner

may be subject to immigration administration action. Immigration administrative actions are

imposed on foreigners in Indonesian territory for carrying out dangerous activities that are

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suspected of disturbing public order or not respecting and violating the laws and regulations

in force in Indonesia (Wulandari & Andaryadi, 2019: 5).

The types of immigration administration actions that can be imposed on every

foreigner, including foreigners from calling visa countries, are as follows: inclusion on the

prevention list, which includes a ban on leaving Indonesian territory as well as a deterrent or

ban, restriction, change, or crossing out of home grant; restriction on one or more specific

locations within the Indonesian territory; the obligation to reside in a particular area of

Indonesia's territory; the imposition of costs; and the deportation of foreigners from

Indonesia's territory or their forced expulsion (Wulandari & Andaryadi, 2019).

A country that is considered to have a certain level of vulnerability in terms of

ideological aspects, political aspects, economic aspects, social aspects, cultural aspects,

aspects of state defense and security, and immigration aspects is a calling visa country, as

stated in the Regulation of the Minister of Law and Human Rights of the Republic of Indonesia

Number M.Hh-01.Gr.01.06 of 2012 concerning Procedures for Determining Calling Visa

Countries and Granting Visas to Citizens of Calling Visa Countries (Ministry of Law and

Human Rights of The Indonesian government is in control of deciding which nations will be

included in the calling visa classification. More specifically, the Republic of Indonesia's

Ministry of Law and Human Rights represented countries with calling visas. The Minister of

Law and Human Rights establishes a coordinating team of assessors to determine calling visa

countries. These assessors make recommendations regarding the degree of vulnerability of

particular nations, which include the following elements: the Ministry of Human Rights and

the Law; Internal Affairs Ministry; Department of Foreign Relations; Ministry of Migration

and Human Resources; The National Police of Indonesia; Office of the Attorney General; State

Knowledge Organization; the Indonesian National Armed Forces' Strategic Intelligence

Agency; and the National Narcotics Agency (Article 2 of the Republic of Indonesia's Minister

of Law and Human Rights No. 2012's M.Hh-01.Gr.01.06).

Determination of calling visa countries is carried out with an in-depth study of the

conditions of these countries based on defining goals, choices of action, and utilizing national

capabilities to achieve national interests as described by K.J. Holsty. This type of foreign

decision is a group decision consisting of a coordinating team on behalf of the state in order

to achieve the goals of Indonesia's national interests. In this case, the national interests of the

Indonesian state are closely related to the selective policy in which only people who are

useful (prosperity approach) and who do not endanger domestic security (security

approach) will be allowed to enter the territory of the Indonesian state. As one manifestation

of the selective policy in Indonesia's immigration function, several countries that are

considered to have a certain level of vulnerability are included in the category of calling visa

countries (Djati, W.K., & Christian, 2019).

4. Conclusion

The selective policy is the foundation upon which Indonesian immigration is carried

out against foreigners wishing to enter Indonesian territory. The Immigration Law of the

Republic of Indonesia No. 6 of 2011 outlines the policy's fundamental principles. The

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standard of particular approach is to figure out each unfamiliar resident who needs to enter

An Indonesian area, just outsiders who give benefits and don't imperil security and public

request will be permitted to enter and be in the region of the Territory of Indonesia. The

policy's construction aims to safeguard Indonesia's national interests, i.e., its sovereignty and

security, which may be threatened if foreigners are authorized to enter freely. Indonesia's

selective immigration policy is based on a balanced guard and welfare approach.

The application of a selective policy is carried out much more strictly and selectively

towards foreigners from calling visa countries. It is due to the condition of countries calling

visas which are considered vulnerable in terms of ideological aspects, aspects of politics,

economics, society, culture, state defense and security, immigration, and other aspects The

calling visa country category currently includes nine countries: Afghanistan, Guinea, Israel,

North Korea, Cameroon, Liberia, Niger, Nigeria, and Somalia. Determination of the calling visa

country is a foreign policy of the State of Indonesia by taking into account the

recommendations of the assessment coordinating team formed by the Government of

Indonesia and adjusting Indonesia's national interests.

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