Legal Status of a Refugee and Its Legal Impacts

PERTANYAAN

1. How to get a KITAS/KITAP for a foreigner who is a refugee but is married to an Indonesian Citizen religiously?
2. Is the foreigner allowed to obtain Indonesian citizenship status while only staying 2 years in Indonesia?

INTISARI JAWABAN

A refugee is someone who is outside his or her country of nationality and does not want protection from that country, due to a well-founded fear of persecution, caused by reasons of race, religion, nationality, membership of certain social groups, and membership of certain political parties.

So, what is the legal status of a refugee in Indonesia? Is there a legal basis that regulates the existence of refugees in Indonesia?

Please read the review below for a further explanation.

ULASAN LENGKAP

This article is an English translation of Status Hukum Seorang Refugee dan Akibat Hukumnya, written by Renata Christha Auli, S.H., and published on Tuesday, 6 June 2023.

This article is an update of the article with the same title, written by Miranda Timothy Butarbutar, S.H. from Lembaga Bantuan Hukum Mawar Saron, and first published on Wednesday, 15 April 2015.

All legal information available on Klinik hukumonline.com has been prepared for educational purposes only and is general in nature (read the complete Disclaimer). In order to obtain legal advice specific to your case, please consult with Justika Partner Consultant.

Definition of Refugee

Refugee comes from English Languague which means a person who due to a well-founded fear of persecution, caused by reasons of race, religion, nationality, membership of certain social groups, and membership of certain political parties, is outside the country of his/her nationality and does not want protection from the concerned country.[1]

Basically, from the definition of refugee, it can be seen that there are five criteria that must be met to determine a person's refugee status, namely:[2]

1. well-founded fear i.e. genuine anxiety;
2. torture i.e. the existence of persecution;
3. race, religion, nationality, membership of a particular social group or political opinion;
4. outside his/her country of nationality or being outside his/her citizenship; and
5. unable or unwilling on account of his/her fear to obtain protection from the country or to return to the country.

These refugees generally seek protection in countries that have ratified the 1951 Refugee Convention and the 1967 Protocol Relating to the Status of Refugees (1967 Protocol) or often referred to as third countries.[3] Based on your question, we assume that the refugee you are referring to is a person who fled from a foreign country to Indonesia. However, the 1951 Refugee Convention has not yet become positive law in Indonesia because it has not been ratified, so it cannot be enforced as a legal basis in Indonesia.

So, are there any rules regarding the procedures for entry of people into Indonesia?

Illegal Immigrants and the Enforcement in Indonesia

Basically, every person entering or leaving the Indonesian Territory is required to have a legitimate travel document, as stipulated in Article 8 section (1) Law 6/2011. Then, every foreigner entering the Indonesian Territory must have a legitimate and valid visa, unless otherwise stipulated based on Law 6/2011 and international agreements.[4]

Also read: Types of Indonesian Visas and Their Uses

According to these rules, based on the information you provided, the Foreign Citizen (in Bahasa Indonesia is called Warga Negara Asing/ "WNA") you refer to as a refugee is a foreigner who does not have a legitimate travel document, thus violating the provisions as stipulated in Law 6/2011.

Further regulation regarding refugees from other countries who enter Indonesia and do not comply with the provisions in Law 6/2011 is also emphasized in Article 1 section (1) Regulation of the Director General of Immigration 2010, which reads:

Illegal immigrants are foreigners who enter and/or are in the territory of Indonesia not in accordance with the provisions of laws and regulations.

Then, when illegal immigrants are found to be in Indonesia, they may be subject to immigration enforcement, as stipulated in Article 2 section (1) Regulation of the Director General of Immigration 2010. Such immigration enforcement may include:[5]

1. inclusion in the prevention or deterrence list;
2. restriction, change, or cancellation of residence permit;
3. prohibition to be in one or more specific places in the Indonesian Territory;
4. compulsion to reside in a certain place in the Indonesian Territory;
5. imposition of burden fees; and/or
6. deportation from the Indonesian Territory.

Also read: Time Period to Deport Foreigners

In addition, immigration officials are also authorized to place foreigners in an Immigration Detention Center or Immigration Detention Room if the foreigner is in the Indonesian Territory without a legitimate travel document.[6]

Thus, based on our explanation above, it can be interpreted that an illegal immigrant is not possible to obtain a Limited Stay Permit (Izin Tinggal Terbatas/ "ITAS") or Permanent Stay Permit (Izin Tinggal Tetap/ "ITAP"), because the illegal immigrant does not have a legitimate travel document such as a visa as the main requirement to apply for ITAS or ITAP, as referred to in the provisions of Article 48 section (2) Law 6/2011, namely:

A residence permit is granted to a foreigner in accordance with the visa he/she holds.

Also read: What is KITAS/KITAP and How to Manage It

Exceptions to Illegal Immigrant Enforcement

As for the exceptions that can be given to illegal immigrants, based on Article 2 section (2) Regulation of the Director General of Immigration 2010, in the event that the illegal immigrant expresses a desire to seek asylum and/or for some reason cannot be subject to deportation, then this can be coordinated with international organizations dealing with refugee issues and/or the United Nations High Commissioner for Refugees ("UNHCR") for the determination of his status.

Furthermore, based on Article 3 section (1) Regulation of the Director General of Immigration 2010, illegal immigrants may not have their stay permit status disputed while in Indonesia if:

1. have obtained an Attestation Letter or certificate as an asylum seeker from UNHCR; or
2. status as a refugee from UNHCR.

Furthermore, illegal immigrants are only allowed to stay temporarily in a designated place under the supervision of immigration officers, before being placed in a third country by UNHCR. This can be understood from the provisions contained in the Refugee Declaration Letter in the Appendix of Regulation of the Director General of Immigration 2010.

Citizenship Regulation on Illegal Immigrants

Answering your second question, the conditions for foreigners to obtain citizenship are regulated in the provisions of Article 9 Law 12/2006 as follows:

1. has reached the age of 18 (eighteen) or has married;
2. at the time of submitting the application, the applicant has resided in the territory of the Republic of Indonesia for at least 5 (five) consecutive years or at least 10 (ten) years intermittently;
3. physically and mentally healthy ;
4. is able to speak Bahasa Indonesia and acknowledges the state basic principles of Pancasila and the 1945 Constitution of the Republic of Indonesia;
5. never convicted of a criminal offense with imprisonment of 1(one) year or more;
6. if the Citizenship of the Republic of Indonesia is acquired, the citizenship will not be doubled;
7. has a job and/or a steady income; and
8. pay a naturalization fee to the Government Treasury.

Based on your question, the foreigner has only lived in Indonesia for 2 (two) years, so this does not meet the requirements for applying for citizenship.

Marriage Status of Indonesian Citizens with Illegal Immigrants

Regarding your question regarding the marriage of an Indonesian Citizen (Warga Negara Indonesia/ "WNI") with an illegal immigrant, we need to explain that a marriage that is legitimate in Indonesia is a marriage that is conducted according to Indonesian law, as stipulated in Article 2 section (1) Marriage Law. Then, the marriage shall be registered according to the prevailing laws and regulations.[7]

Thus, in our opinion, a marriage that is held religiously is only considered legitimate by the state after it has been registered at the Office of Religious Affairs for Muslims and at the Civil Registry Office for non-Muslims.

Then it is also necessary to look at the provisions of Article 56 section (1) Marriage Law, which states:

Marriage which is held outside Indonesia between two Indonesian citizens, or an Indonesian citizen and a Foreign citizen is legitimate if it is conducted according to the law applicable in the country where the marriage is being held and, for the Indonesian citizen, it does not violate the provisions of this Law.

Therefore, a foreigner with the status of a refugee or illegal immigrant cannot enter into a marriage under Indonesian law, because the foreigner is living in Indonesia illegally according to the provisions of the legislation. Even if a refugee receives status as an asylum seeker or refugee status from UNHCR, it is still not possible to conduct a marriage in Indonesia, because the refugee is only allowed to stay temporarily before being transferred to a third country, and is not allowed to carry out certain activities as referred to in the Refugee Declaration Letter in the Appendix of Regulation of the Director General of Immigration 2010.

These are the answers we can provide, we hope you will find them useful.

Legal Basis:

1. Law Number 1 of 1974 on Marriage as amended by Law Number 16 of 2019 on the Amendment to Law Number 1 of 1974 on Marriage;
2. Law Number 12 of 2006 on Citizenship of the Republic of Indonesia;
3. Law Number 6 of 2011 on Immigration as amended by Regulation of the Government in Lieu of Law Number 2 of 2022 on Job Creation which has been passed into law under Law Number 6 of 2023;
4. Regulation of the Director General of Immigration Number IMI-1489.UM.08.05 of 2010 on the Management of Illegal Immigrants;
5. 1967 Protocol Relating to the Status of Refugees;
6. Refugee Convention 1951.

Reference:

1. Cipta Primadasa (et.al). Problematika Penanganan Pengungsi di Indonesia Dari Perspektif Hukum Pengungsi Internasional. Jurnal Risalah Hukum, Vol. 17, No. 1, 2021;
2. Maya I. Notoprayitno. Suaka dan Hukum Pengungsi Internasional. Jurnal Cita Hukum, Vol. 1, No. 1, Juni, 2013.

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[1] Cipta Primadasa (et.al). Problematika Penanganan Pengungsi di Indonesia Dari Perspektif Hukum Pengungsi Internasional. Jurnal Risalah Hukum, Vol. 17, No. 1, 2021, p. 44.

[2] Maya I. Notoprayitno. Suaka dan Hukum Pengungsi Internasional. Jurnal Cita Hukum, Vol. 1, No. 1, Juni, 2013, p. 103.

[3] Cipta Primadasa (et.al). Problematika Penanganan Pengungsi di Indonesia Dari Perspektif Hukum Pengungsi Internasional. Jurnal Risalah Hukum, Vol. 17, No. 1, 2021, p. 44.

[4] Article 8 section (2) Law Number 6 of 2011 on Immigration (“Law 6/2011”).

[5] Article 75 section (2) Law 6/2011.

[6] Article 83 section (1) letter b Law 6/2011.

[7] Article 2 section (2) Law Number 1 of 1974 on Marriage.