Update on New Immigration Law - PR (KITAP) & Working Permit for Foreigners

Here is a reprint of an article appearing in the October 20, 2011 issue of the Jakarta Globe:


When the long-awaited revision of the 1992 Immigration Law was passed in April, thousands of foreigners living here greeted it with cautious cheers and applause.

The revisions are supposed to make it easier for foreigners who qualify to obtain permanent residency permits, but the months since the law’s passage have proved to be confusing both for the supposed beneficiaries and the office supposed to implement it.

Anxious Questions

Hundreds of mixed-marriage couples are at the forefront of those waiting anxiously for the new law to become effective.

“The spirit of this new law is to accommodate long-time married couples whose spouses still have to renew their permit once every year,” said Sandra Tjahyakusuma, a member of International Rainbow Alliance (APAB), which is part of the advocacy team for the 2011 Immigration Law.

The new law stipulates that foreigners who have been legally married to an Indonesian for at least two years will be immediately granted a permanent residency permit (Kitap). It also allows foreigners to remain in the country even if they divorce their Indonesian partner, as long as their marriage lasted at least 10 years.

Sandra, an Indonesian citizen who has been married to a British national for 18 years, said the old law did not accommodate foreigners who wanted to get a permanent residency permit unless they held top corporate positions.

“Now if you are married for a minimum of two years with an Indonesian citizen, you are eligible for it,” she said.  But there remain plenty of questions and complaints.

In Effect or Not?

The most common question asked since the law’s passage is: When will it go into effect?

And here lies the first confusion: Technically, a law needs implementing rules and regulations to be enforced properly.

“We are still waiting for the [implementing rules] on this,” said Asriyani, one of the bureau heads at Central Jakarta Immigration Office.

A thick draft of the regulations, which would be issued in the form of a governmental decree, was shown to the Jakarta Globe, but officials say this won’t be finalized until next year. The law states that such regulations should be issued within a year of a law being passed, though this hasn’t always happened. The 2009 Health Law, for instance, still doesn’t have implementing rules and regulations.

The regulations are needed to detail exactly how to interpret the law.

However, in July, Erwin Azis, director of immigration information systems, explained in a public forum that even without the government decree, certain parts of the law were already in effect, like the one where foreigners who have been legally married to an Indonesian for two years are entitled to obtain a Kitap.

But it seems not everyone is on the same page.

Insufficient Answers

Sandra said they’ve compiled the most common responses given by immigration officials who reject applications for a Kitap, as submitted by dozens of frustrated mixed-marriage couples.

The first one is that the law is not yet in effect, she said.

“We find this ridiculous because the new law includes a transitional provision that says the legal spouse of an Indonesian citizen who has had a Kitas [temporary residency permit] for at least two years can immediately get the Kitap,” Sandra explained.

The second relates to fees. Earlier this month, APAB also received a report that a staff member at the Immigration Directorate General demanded Rp 15 million ($1,700) for the Kitap.

According to the old law, a Kitap that’s valid for five years costs Rp 3 million, and an extension would cost Rp 2 million. The implementing regulations to be issued next year are supposed to define the new costs.

“The third response is that the applicant still needs a sponsor even though Article 63, Paragraph 4 of the new law says  a sponsor is no longer needed for those married to Indonesian citizens,” Sandra said.

Irregular Implementation

With or without implementing regulations, the West Jakarta Immigration Office has gone ahead and applied aspects of the new law and issued Kitaps to foreigners who met the requirements for mixed-marriage couples.

Office head Mirza Iskandar said they did not judge applications based on occupations, “as long as they are married to an Indonesian for at least two years. That’s what the law says.”

“But not that many people come here. I think most of the mixed-marriage couples go to the South Jakarta Immigration Office,” he said.  Mujiyono, the head of the South Jakarta Immigration Office, said he had recently begun accepting applications from foreigners wishing to make use of the new law,  but not all were approved.

“Of course I have to filter them first. Only applications from those who have been married at least two years and can show a document from their embassy will be forwarded to the provincial [immigration] office,” he said.

Burhanuddin, who is responsible for issuing Kitaps in West Jakarta, said the process usually took at least a month as staffers needed to verify the information including by home visits.

“If they are really married to Indonesians, and for how long, etcetera,” he said.

After the field check, the district immigration office will hand over the data to the provincial office. “We cannot predict how long that part will take. It could be a month or more,” he said.

The Central Jakarta Immigration Office, however, said it was not yet accepting applications.

Immigration spokesman Maryoto Sumadi apologized for the different treatments foreigners received at district offices.

“We are not yet finished with the awareness campaign for the new law,” he said.

Maryoto also said that even though the new law allowed holders of temporary and permanent residency permits to work or own businesses, separate work permit requirements would still be regulated by the Manpower and Transmigration Ministry. A spokesman there, Suhartono, said his office was still in the process of revising its regulations to match the new Immigration Law.

“But the requirements will still be the same,” he said.

Going Around the System?

A seasoned “agent” at the Central Jakarta Immigration Office, who only wanted to be identified as Raja, told the Globe that to get a Kitap, one should be prepared to pay through the nose.

“If you want to use an agent, the cost to get a Kitap could be as high as Rp 30 million,” Raja said. “You can just sit back and we will deliver it to you. You only need to come to the immigration office once to get your picture taken.”

Raja recommended people apply for the permit themselves, but still, one has to prepare for “additional fees.”

“You will basically need to get your application through three different offices: district, provincial and ministerial,” Raja said. “For the first two, you need to give between Rp 250,000 and Rp 500,000 over the counter. But at the directorate general in Kuningan, you have to pay around Rp 5 million, but you can negotiate.”

Refusing to pay these fees, he continued, could affect the application. “Of course if you ask staff here they will say that they know nothing about the prices, but none of them will object if you give them money,” he continued. “It also gets them to approve your application faster.”

APAB’s Recommendations for the Implementing Regulations

1. Kitap holders from mixed marriages should get a special registration number to differentiate them from business owners.
2. The term “relative through marriage” should be clarified.
3. Foreigners married to an Indonesian for over two years should be able to get their Kitap without first applying for a Kitas.
4. Sponsorship should no longer be needed for foreign spouses.
5. For those mixed-marriage couples who have already
been married for a long period of time, a statement from the foreign spouse’s embassy of
a good record and marital status should no longer be necessary.

A Refresher on the Key Points

1. Foreign spouses of Indonesian citizens can get a permanent residency permit (Kitap) after two years of marriage. They will only be required to report to the immigration office once every five years — a free service — instead of the annual renewal currently required.
2. If they have been married to an Indonesian citizen for at least 10 years, foreigners can stay in the country even after a divorce.
3. Foreign spouses will be allowed to work in the country without a sponsor.
4. Others who are eligible for a Kitap are:
• Children from mixed marriages, regardless of their nationality. However, these children still have to choose a citizenship at the age of 18, with three years of possible extension. If they choose foreign citizenship, they have to apply for a temporary or permanent residency permit.
• Foreigners who have held a Kitas for three years, less than the five years previously required, can get a Kitap.
• Former holders of Indonesian citizenship.
5. Foreigners with a Kitap who leave Indonesia for long periods of time will not lose the permit as long as they obtain multiple re-entry permits.

The Pancasila - 5 Principles (Ideals) of Indonesia

The State Ideology - "Pancasila"

The Indonesian Government bases its ruling philosophy on the Pancasila or Five Principles as laid down in the Preamble to the country’s 1945 Constitution. 

They are:

1. Belief in one God.
2. Just and civilized humanity.
3. Unity of Indonesia (through diversity of its peoples).
4. Sovereignty of the people.
5. Social Justice.

Can I Buy An Apartment or Condo in Jakarta ?

"Hi Brian, I just recently moved to Jakarta and am on a TDY assignment with the State Department, and it looks like I am going to be in country for a number of years.  Rather than flushing the money down the toilet on rent each month or on a yearly basis, I am thinking about buying an apartment or condominium unit in Jakarta as an investment.  I've read differing opinions on whether or not a foreigner can actually own property here and thought I'd contact you for your take on it.  Thanks, Tasha"

When it comes to transactions involving real property it is critical to have a clear and correct understanding of the terminology and legal consequences involved.  Do not rely primarily on secondary sources of information such as on forum sites; READ THE ACTUAL LAW.  However, there are some reasonably accurate elucidations out there.  One good source may be found at:

http://www.expat.or.id/info/buyingproperty.html

People here in Indonesia use the terms "buy", "own", "purchase" incorrectly and all too loosely when referring to a foreign national having an interest in real property.  At the present time, under Indonesian law A FOREIGN NATIONAL CANNOT OWN LAND IN INDONESIA in a absolute or freehold estate form of real property ownership, also known as "fee simple". A freehold estate in Indonesia is called "Hak Milik."  A foreigner cannot own real property in Indonesia in a freehold estate form of ownership; therefore a foreigner simply cannot truly "own" property here in Indonesia.

A foreigner, however, can have only a LEASEHOLD ESTATE interest in real property. A leasehold estate in Indonesia is known as "Hak Pakai" and it is NOT true and absolute ownership of the property as in a freehold estate or fee simple form of property ownership.  It cannot be bequeathed to an heir.  

When it comes to apartments or condominiums (Strata Title) a foreign national can only have a leasehold interest in the unit but cannot truly "own" it or "buy" it.  The foreigner simply does not and cannot truly own it. The leasehold period granted to foreigners is 25 years (initial term), can be extended by another 25 years, then renewed for a second and final time for a period of 20 years; making the tolling of the leasehold estate a total of 70 years (25 + 25 + 20 = 70 years).  There is not true ownership in this arrangement and the leasehold interest cannot be passed on to an heir. The foreigner does NOT own it!

Regarding apartments there is also a "Convertible Lease" Agreement which states that if and when the lessee can legally own the unit (such as if and when Indonesian law allows foreigners to own real property); then the lessee and lessor will be required to sign a Deed of Sale & Purchase, and title shall be transferred to the foreign national when Indonesian laws allow ownership of property by foreigners.  During this interim period however, the person DOES NOT own the unit, and title remains in the name of the builder or developer - which for obvious reasons is highly risky and not advisable.

Regarding the use of an Indonesian "nominee" or intermediary to buy the property in their name, or the use of a "PMA" (Foreign Direct Investment Company) as a way of circumventing the restriction and prohibition of foreigners owning real property in Hak Milik, a summary of these 2 methods can be found at:

http://brianindonesiaexpat.blogspot.com/2010/06/how-can-foreigner-buy-or-acquire-real.html

If a foreigner is married to an Indonesian and tries to buy the property in the Indonesian spouse's sole name to get around holding deed or title to the property in only a leasehold estate, this creates a legal quagmire.   See my previous article with more information and legal citations on this subject:

http://brianindonesiaexpat.blogspot.com/2011/03/transnational-mixed-marriages-property.html

An Indonesian (man or woman spouse) in a transnational marriage may lose their right to possess land because according to the Marriage Law and Law No. 7/1984 on Cedaw ratification, every possession that is purchased by a mixed couple after they are married is considered a collective or joint possession. The couple would lose the right to own land because one of the parties was an expatriate. 
 

Under the Marriage Law No. 1/1974, both the wife and husband, irrespective of their nationality, have equal rights to family assets. But this is contradictory to the Land Law No. 5/1960, which states that foreigners cannot own land in Indonesia.
 

As a result, an Indonesian spouse (husband or wife) who married a foreigner loses their  rights as a citizen to buy land and borrow money from a bank for marrying a foreigner, UNLESS there was an existing prenuptial agreement that was entered into by the couple BEFORE the marriage.  

I know what you're thinking.... hey, I'll just draft a "prenuptial" agreement after the marriage and back-date it.  This will not work as this type of document would have to be notarized to be legally valid and binding, and Indonesian Notaries Public have been informed of this "scam" and instructed not to witness such a back-dated document.  

I know what you're thinking now, hey I'll just pay someone to do it anyway as Indonesia is a very corrupt country where graft and "bribes" are commonplace.  You could try to do that, but it is not legal or advisable to do so...   

Indonesian Embassy in Washington, DC Organizes World Record Feat

Published on The Jakarta Post (http://www.thejakartapost.com)

Washington DC Shakes to World Angklung Record

The Jakarta Post   |  Mon, 07/11/2011 3:00 PM  |  Feature

 

The world record for the largest angklung ensemble goes to Washington, DC after 5,182 people of various nationalities turned up on Saturday to literally shake the traditional Indonesian bamboo musical instruments to the tune of “We are the World”.

The event took place during the Indonesian Festival held in an open field in the National Mall, a few blocks away from the White House.

Announcing the official entry, the adjudicator from the Guinness Word Records said, “You’re unbelievable, and to think that you have never played the instrument before.”

 

Ringing in a record: People take part in the world’s largest angklung ensemble in Washington DC on Saturday. The 5,182 participants succeeded in setting a new record, which will be recognized by Guinness World Records, at an event organized by the Indonesian Embassy in Washington DC and the Indonesian Investment Coordinating Board. 

Thousands of people responded to an invitation by the Indonesian Embassy in Washington to join in the world record breaking feat. The throng included Indonesians, Washingtonians, friends of Indonesia and a handful of tourists.

The embassy had initially promised the Guinness World Records a 5,000-person turnout. There was a moment of hesitation when only 1,600 people had registered online as of Friday. Many turned up on the day without registration.

Those who came spent a good half hour in the scorching heat, with temperatures above 32 degrees Celsius, to learn and practice using the instrument before they got it right and satisfied the adjudicators that it was worthy of a world record.

Each participant was given an angklung representing one note. Each of the seven notes was designated the name of one of Indonesia’s main islands.

Helping the largely novice but enthusiastic players was angklung maestro Daeng Udjo, who was flown in from Indonesia. He guided the participants with the movements of his hands, which indicated when it was their turn to shake the angklung.  The ensemble of amateurs practiced with familiar Western tunes, including “Country Road”, to help build their confidence (and more importantly Udjo’s confidence) before going for the record.

As their reward, they went home with the angklung, a batik scarf for women, a batik head band for men and a certificate from Guinness World Records and the Indonesian Embassy recognizing their part in setting the world record.

“This is what multiculturalism is all about,” Indonesian Ambassador to the US Dino Patti Djalal said about the theme of the Indonesia Festival and his decision to strive for the world record.

The day-long festival saw performances by famed 1980s duo Air Supply, rapper Raheem Davaughn, the Brazilian Batala percussion band and entertainers from Indonesia, including Sherina Munaf and Elfa Singers.

— JP

Copyright © 2011 The Jakarta Post - PT Bina Media Tenggara. All Rights Reserved.

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