It just happens, violating the rules of your stay permit (KITAS) or your visa. Sometimes totally absent-mindedly. What happens if you do violate the rules, or more importantly, what do you do if you get caught?
There are many types of irregularities with which Immigration offices have to deal with:
• Overstaying the period of the visit visa
• Overstaying the period of the stay permit (KITAS)
• Doing a business visit while only possessing a free exemption visa?
• Working at a company, while having a (business) visit visa only
• Working while having a dependent KITAS
• Working at a different location than mentioned on the IMTA and RPTKA
• Working in a position different from the one mentioned on the IMTA, or having more positions and only one IMTA
• Not reporting changes in status (address)
• Entering into a fake marriage with an Indonesian spouse
• Presenting or using fake papers while obtaining a permit
To take away the urban legend stories about the punishments in such cases, the law gives a clear answer in Chapter XI of the Immigration Law no. 6 of 2011. The articles 113-135 handle the possible penal provisions. In this article trafficking and other real criminal immigration crimes are not discussed. The focus is on the expat not committing crimes but administrative omissions with big consequences. There are two main categories of punishment:
A. A maximum of 3 months incarceration and a maximum fine of IDR.25,000,000.-. For foreigners who don’t present their passport or other ID or fail to report changes on their civil status, nationality, profession, sponsor or address. All more or less little or small misdemeanors.
B. A maximum of 5 years imprisonment and a maximum fine of IDR.500,000,000.-. Imposed on:
- Foreigners without a valid passport and a visa or stay permit
- Foreigners who falsify or forge visas or stay permits or use them
- Foreigners who abuse or do an activity contrary to the purpose of the stay permit
- Anyone providing false or falsified letters or other data Overstaying falls under the B category, hence you are in Indonesia without a valid visa, but up until 60 days the actual punishment is only a fine of IDR.300,000.- per day if you report the overstay yourself. If you get caught arrests, fines, detentions and deportations may follow.
Be aware that most violations of Immigration rules are being discovered because the Immigration has been tipped off.
- A neighbour or even an acquaintance who knows you are overstaying
- A colleague who knows you work on a business visa
- A former employee trying to get even with his old company
- Former girlfriends or ex-wives feeling they are abused
- Business partners feeling they made a bad deal
- Friends, knowing your dependent wife is actually working
What happens and what to do if you are caught?
When Immigration officers unexpectedly enter your house, hotel, office or any other spot and asks you for your papers, you can bet that they already have information that you committed a violation of your stay permit or visa. Why would they come to your place of all places at exactly the moment that you did something wrong? So, don’t fool yourself, the Immigration knows.
There are many ways how to respond on a raid. Based on our experience below a realistic overview of what happens and how you can react. Choice is always yours, but being hostile and rude is having yourself detained for sure:
- The Immigration officer will ask for your name and passport and stay permit (KITAS/KITAP). Be humble and cooperate.
- The officer will ask for the reason of your stay and he will ask what you are doing at the place where you are. Again, stay humble and answer correctly.
- The Immigration officer will request for you to come to the Immigration Office later or the next day. Your passport and KITAS will be taken and you will get a STP, an official letter of the confiscation. If the misdemeanor is minor you will not be arrested and detained.
- After the Immigration has left, contact your agent. Below, we explain why a lawyer might not always be the best solution.
- The agent will contact the Immigration Office and discuss the content of your case.
- The agent will then discuss the situation with you and plan a strategy.
- At the Immigration Office you will be interrogated. Usually it is wise to explain the misdemeanor, why you got into the situation (overstaying or working on a visa) and admit you are wrong.
- After the interrogation you await further steps. Immigration and the agent will discuss the possibilities and follow up. Depending on the level of your misdemeanor, your history and your attitude, Immigration will decide to bring the case to court or discuss a proposed amicable settlement.
- If a settlement is possible, the options are a fine with or without a (blue) deportation, meaning you can come back to Indonesia, with the correct visa. When a red deportation is imposed, you cannot come back for at least six months, after which a request can be made to lift the deportation status.
- In case your misdemeanor is major and you, for example, used falsified papers there is less room for a settlement. You eventually will be detained and deported. The agent can only try to prevent a court case and imprisonment. The Immigration will plea for a high fine and imprisonment. In normal administrative cases, that however, is seldom.
Above we stated that it might not be wise to contact a lawyer immediately. In no way do we want to say that a lawyer cannot assist you well. Most likely he would do a better job. Nevertheless, he must not just know all about the Immigration law. More importantly, he needs to know the Immigration office and the employees handling your case. Most agents do – it’s their daily work!
In most cases evidence is already presented, it is a clear cut case. A lawyer with less experience in immigration cases could approach the wrong Immigration staff, causing delays. When in detention, every day counts.
Finally, the motto of this article; if you are really, really innocent and don’t mind facing the Indonesian law system, you should call a lawyer. But when correctly caught, call a formalities agent and settle!