Working on Spouse KITAP

[Imagem]

My understanding was that from 2011, a foreigner on a Spouse Kitap was allowed to work to help support the family. It always seemed to be a bit of a grey area what work we could and could not do so I have kept pretty low key in helping out in our family business. However with our local immigration office deporting over 60 foreigners in the last 6 months I have become concerned and so while at a recent visit to the ombudsman I tried to confirm exactly what it is we are or not allowed to do. He advised me that I should do no work whats so ever. When I pushed to say I understood that I could do some, he said he would look into it and call me back, which he has not done. I do the emails and bookings etc as well as a little driving. I would like to do more driving if it is something that I am allowed. I would like to know for sure as our immigration is seeming to be very zealous at the moment.

Many thanks

 

[fastpitch17]

My understanding is that current immigration rules do not directly address the working of a spouse on Kitap.Kitas so it's hard to tell that way. On the other hand it is also my understanding that there is an Indonesian law that states something to the effect that no one can deny a spouse from supporting his family in any legal undertaking. Atlantis would know best the laws and perhaps he will post them.
No matter what, yes, it is grey but a number have seemed to do it mainly as long as they have not set hours, are not listed on the payroll, and the business is owned by the WNI spouse.

 

[dafluff]

My understanding of the law is spousal KITAS/P holders can work. Period. IMTA and all the other laws governing foreign workers found in UU 13, 2003 shouldn't apply to them, because that law, in its very first article, specifically defines a foreign worker (Tenaga Kerja Asing - TKA) as a foreigner who holds a visa for the purpose of work.

Since a spousal KITAS/P is issued not for the purpose of work, but for the purpose of family unity, therefore holders of such are not foreign workers (TKA) and the TKA provisions of UU 13, 2003 does not apply to them, nor does any other provisions concerning TKA in lower level laws derived from UU 13, 2003.

However, the more generally accepted belief is that spousal KITAS/P holder can definitely work in any capacity within an informal business (such as a business owned by their WNI spouse). This has been socialized by multiple immigration officers at various level, so there is wide agreement on that part.

In your situation, if you do the driving/booking/whatever within your family business, then you are fine.

 

[aprilliano]

Thanks for the explanation dafluff. Just as this intrigues me, to which extent can a KITAS/P holder work in the family (spouse-owned) business? Are there any restrictions? Can it be full-time as long there's no contract/salary?

 

[Imagem]

Thank you dafluff. It is good to know and have something to quote should they come knocking at my door.

 

[El_Goretto]

Moderation note: I just moved CalamityDisko's post into its own thread to avoid confusion. Thank you. Carry on

 

[ChrisTex]

I had saved this to my computer when I was looking for work and so I could provide it if asked about it. I am 99.99% sure this came from Atlantis.

You can work with the KITAS you already have . What you may add to your KITAS is the Work Permit (IMTA) .


The doubt about it is that still there is no Regulation to implement this part of the Law . Below is the related part of the Law .


UU no.6 , year 2011 , Article 61 (not the official translation)
Limited Stay Permit/KITAS holder referred to in Article 52 letter e and f, and the holder of a Permanent Stay Permit/KITAP as referred to in Article 54 paragraph (1) letters b and d can work and/or do business to support himself/herself and his/her family.


We are allowed to provide for our family by working or setting up/ doing business (cf art. 61 UU 6/2011).
We shouldn't be subjected to an IMTA per se which in bahasa indonesia stands for Izin Mempekerjakan Tenega Kerja Asing because, legally speaking we can't be considered as TKA (cf elaboration I made in a few posts about what TKA are, based on art. 1 UU 13/2003 and penjelasan art. 39 UU 6/2011).
If the RI Government wants to subject us and our right to provide for our families to any regulation they can obviously do so. But the first step would be to draft said regulation, which has not been so yet.


The law (UU 6/2011) says that the government had 1 year since the enactment of UU 6/2011 to pass all necessary regulations to fully implement UU 6/2011. It has not been done.
UU 6/2011 is a Law/Undang Undang. It is of higher hierarchy than any governmental regulation, ministerial decision, regional regulation...etc, therefore any stipulation of any any governmental regulation, ministerial decision, regional regulation or any UU having been passed prior to the enactment of UU 6/2011 contradicting it or forbidding us to work and provide for our family should be considered void.


In order to respect the spirit of article 61 UU 6/2011 (ie: ALL those WNA married to WNI should be given a chance to provide for their family), any regulation drafted to regulate our right to work should be as flexible/non coercitive as possible, in order to give a chance to all of us to provide for our family. Basically it means that the conditions of experience, expertise, language, association with Indonesian worker...etc can obviously not be applicable to us. You can not say to a Pakistani buruh who would have married an Indonesian TKI " sorry mate, you can't provide for your Indonesian wife and kids because you do not have a PhD to work as a manual worker in this factory" or you can't say to this young 20 years old Brit "sorry mate, you can't provide for your pregnant indonesian wife because you need five years experience to be allowed to work"..etc




Except few exceptions (that I don't know) , only a PT company can get an IMTA (more details in Article 4 of PerMen no.16 , Tahun 2015) .

 

[atlantis]

I am 99.99% sure this came from Atlantis.

You can remove the 0,01% of doubt. I have authored these typos and bad English. I confess.

 

[PhilippeD]

Indonesia have sign the geneva act (is it how it is call?) and that force them to allow us, foreign residing in Indonesia, to work in all liberty.
This make the Depnaker and nationalist very mad.
It is also why the matter is keep very blur and you will have trouble to get straight and full information.

The ''you should work only on the background of your spouse business'' is a lie.

Keep in mind that Imigrasi have no power over work regulation and have a law article that said we can work.
And depnaker, the one who make the work regulation, said NOTHING on this subject.

My own experience:
I have build a formation in management (porformance). I meet the local state university (University Mulawarman) and they ask about the legality of my action to their ''friend'' from imigrasi who were passing by (they have a lot of foreign student).
Those imigration agent ask me meet them at their office, which I have done, and they have done nothing more then trying to intimidate me.
Hopefully I know well the law in question and were able to answer them.
But still they scrutinize my whole file searching for trouble. They ask me why my ''letter of no impediment'' was not in my file and ask me to supply it.
I was there in regards of work matter and was asked to supply wedding document which were not required when I got married.
I told them so and that I would not supply the document they were asking.

They finally let me go and told me to wait to have my KITAS for start to do business by my own (not under my wife name).
All the time, until the last second they had a very agressive tone, trying to make me feel guitly, like if I had commit an infraction.

**the Kitas was hold of release by their friend for almost a year.

The solution is to know the law more then they (gov. employee) do... which is not that hard to accomplish!

Now I'm not on my computer, later I will paste my file (more detailed than christex) about this matter.

 

[PhilippeD]

As promise:

Law Related to Foreign Married with Indonesian and Ex-Indonesian

penjelasan art 39 UU 6/2011
Visa tinggal terbatas diberikan kepada Orang Asing yang bermaksud bertempat tinggal dalam jangka waktu yang terbatas dan dapat juga diberikan kepada Orang Asing eks warga Negara Indonesia yang telah kehilangan kewarganegaraan Indonesia berdasarkan Undang-Undang tentang Kewarganegaraan Republik Indonesia dan bermaksud untuk kembali ke Indonesia dalam rangka memperoleh kewarganegaraan Indonesia kembali sesuai dengan ketentuan peraturan perundang-undangan.
Visa tinggal terbatas dalam penerapannya dapat diberikan untuk melakukan kegiatan, antara lain:
1. Dalam rangka bekerja:
a. sebagai tenaga ahli;
b. bergabung untuk bekerja di atas kapal, alat apung, atau instalasi yang beroperasi di wilayah perairan Nusantara, laut territorial, atau landas kontinen, serta Zona Ekonomi Eksklusif Indonesia;
[…]
m.melakukan kegiatan pengobatan; dan
n. calon tenaga kerja asing yang akan bekerja dalam rangka uji coba keahlian.
2. Tidak untuk bekerja:
a. penanam modal asing;
b. mengikuti pelatihan dan penelitian ilmiah;
c. mengikuti pendidikan;
d. penyatuan keluarga;
e. repatriasi; dan
f. lanjut usia.


Foreigner with KITAS sponsored by spouse are not TKA (Tenega Kerja Asing) - Not Allowed to an IMTA (work permit)
However article 61 UU 6/2011 allows anyone included in the scope of "penyatuan keluarga" and "repatriasi" to work for their living and/or provide for the needs of their family.

Pasal 61 UU 6/2011
Pemegang Izin Tinggal terbatas sebagaimana dimaksud dalam Pasal 52 huruf e dan huruf f dan pemegang Izin Tinggal Tetap sebagaimana dimaksud dalam Pasal 54 ayat (1) huruf b dan huruf d dapat melakukan pekerjaan dan/atau usaha untuk memenuhi kebutuhan hidup dan/atau keluarganya.

Pasal 52 UU 6/2011
Izin Tinggal terbatas diberikan kepada:
a.Orang Asing yang masuk Wilayah Indonesia dengan Visa tinggal terbatas;
b. anak yang pada saat lahir di Wilayah Indonesia ayah dan/atau ibunya pemegang Izin Tinggal terbatas;
c. Orang Asing yang diberikan alih status dari Izin Tinggal kunjungan;
d. nakhoda, awak kapal, atau tenaga ahli asing di atas kapal laut, alat apung, atau instalasi yang beroperasi di wilayah perairan dan wilayah yurisdiksi Indonesia sesuai dengan ketentuan peraturan perundangundangan;
e. Orang Asing yang kawin secara sah dengan warga negara Indonesia; atau
f. anak dari Orang Asing yang kawin secara sah dengan warga negara Indonesia.

Pasal 54 UU 6/2011
(1) Izin Tinggal Tetap dapat diberikan kepada:
a. Orang Asing pemegang Izin Tinggal terbatas sebagai rohaniwan, pekerja, investor, dan lanjut usia;
b. keluarga karena perkawinan campuran;
c. suami, istri, dan/atau anak dari Orang Asing pemegang Izin Tinggal Tetap; dan
d. Orang Asing eks warga negara Indonesia dan eks subjek anak berkewarganegaraan ganda Republik Indonesia.

 

[William King]

Keep in mind that Imigrasi have no power over work regulation and have a law article that said we can work.

Not 100% true, they certainly have a power of veto for teacher's KITAS and IMTA process for schools. Perhaps in your context yes, but for schools employing expats they have to go through immigration, DIKNAS and Depnaker.

 

[PhilippeD]

No power in the way they can not bring you in court for a work related matter. It will be depnaker who would do... if they had regulation in this regards. But they don't.

If you are proven guilty of something it is the immigration that would process at your deportation, but it would not be more than that.



For not married to indo people it's quite simple:
depnaker give your right to work and immigration your right to stay. You need both for being able to work in Indonesia.

 

[atlantis]

Indonesia have sign the geneva act (is it how it is call?) and that force them to allow us, foreign residing in Indonesia, to work in all liberty.

I am unsure about what you mean here and the relation between the Geneva Conventions and working on a spouse ITAP. Care to elaborate?

 

[PhilippeD]

I am unsure about what you mean here and the relation between the Geneva Conventions and working on a spouse ITAP. Care to elaborate?

I'm not sure 100% it's the geneva convention or something else on the like. It's something about human right.
And this human right convention said you can not forbid someone of working (or someting on the like) - I would need to do a search for find what it is really... and I don't have right now.

bottom line, they sign a human right convention which stipulate they can not forbid someone of work.

When I had my confrontation with the imigrasi guy about the association with the university, he confirm me the right of work for foreinger with kitas was because of this human right convention the country have sign.

 

[PhilippeD]

Finally it was not so long to find.

It must NOT be the geneva convention - it establish the standards of international law for the humanitarian treatment in war. (wikipedia)

So it should be the The Universal Declaration of Human Rights

Article 23 (out of 30)
[h=4]Article 23.[/h](1) Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
(2) Everyone, without any discrimination, has the right to equal pay for equal work.
(3) Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
(4) Everyone has the right to form and to join trade unions for the protection of his interests.

Indonesia is member of the UN since 28 September 1950 and should apply the human right code.
it should have had some hand slapping to Indonesia for not applying the human right code in matter of freedom of working... and cames the law article which is passed under silence...

 

[Bad_azz]

"
it should have had some hand slapping to Indonesia for not applying the human right code in matter of freedom of working... and cames the law article which is passed under silence..."

It should have had some hand slapping to Indonesia for more than work related HR breaches- they are many.
We can just live in hope that the country tries to continue to improve in this area cos I don't think Indonesia (just now) cares too much about what basic human rights it breaks.

 

[colroe]

Have had this conversation before on other expat site. I have checked with Immigration and Depnaker Medan, who both stated (IMO probably out of ignorance) that Spouse sponsored KITAS/KITAP holders cannot work. I understand the rules, but do I want or need to have dramas with government departments ?

 

[PhilippeD]

Have had this conversation before on other expat site. I have checked with Immigration and Depnaker Medan, who both stated (IMO probably out of ignorance) that Spouse sponsored KITAS/KITAP holders cannot work. I understand the rules, but do I want or need to have dramas with government departments ?

At first you must be aware of the law article related and have a bit of confidence in yourself about your doing.
With the law article at hand (even better if you can memorize the article number and plus or less what it state... an immigrasi drama would not last long.

And their is all the matter of where you are and how much foreingner does it have in your area.
If you are the only one it may need more explanation for have the immigration officer know what are the law.
In a more ''bule'' populated area it should goes more smootly.

In my Imigration office in Samarinda the woman that handle the visa (kindly call ''hantu'' by my wife) told us openlt many time we could work freely with a KITAS ikut istri (and ask us 10 juta for process it - and was open to told us she would ask 26 juta for the first KITAP).
We paid NOTHING and it must be why they try to intimidate us (which didn't work at all).

Me I would not care at all to go back to Indonesia and work under a KITAS/KITAP ikut istri anytime

 

[sumyunggai]

Our local immigration said specifically to me that on a KITAS (or KITAP) you CAN work.

At the very least there is no law whatsoever outlawing working for your own business when holding a KITAS/KITAP.

 

[fastpitch17]

I checked with a family member in the AGO and first found out that the AGO would be the people to prosecute any individual making it to a court room. All investigation is done within the Immigration department and labor department depending on the case. Court would normally be for the appeal of a decision by the appropriate department.

I further went on to ask if two departments had differing wording in their regulations, is one stronger then the other? He told me that whoever is in charge of the rules that apply to the particular infraction, that would be the stronger of the two. To him, labor rules come under labor and immigration rules come under immigration.

I explained the confusion to him in regards to working under a spouse sponsored KITAS/KITAP and how the differant wording or lack of is confussing and some could interpret it one way or the other thus causing someone to get in trouble when they were understanding they would not.

I gave him a list of the laws that people found confusing and may even contradict themselves. I explained that he or the AGO could in fact get a case like this because of the confusion and if the laws contradict themselves, how could they come to a conclusion? He told me that since he was a criminal prosecutor he would happily turn it over to labor prosecutors to review. He told me that he would in fact get me some kind of answer, in writting although it will take some time with the busy schedules currently in the AGO. I told him when I get that, I will be sharing it with others. He was fine with that.

I have no idea how long it will take but as soon as I get it, I will share it here in these forums.