No durable solutions

A new presidential decree delivers little for asylum seekers and refugees in Indonesia

The uncertainties that asylum seekers and refugees face while living in Indonesia are many. Lacking a legal mechanism and a comprehensive policy for refugee protection, Indonesia does not process the claims of asylum seekers but refers them to the UN refugee agency, UNHCR. Even after a person is determined to be a refugee by the UNHCR, however, there is no guarantee of resettlement in another country.

For years, these uncertainties were blamed on the lack of an effective legal framework for the reception of asylum seekers in Indonesia. Although Law No. 37/1999 on Foreign Relations mentions the right to apply for asylum, these provisions have not been properly implemented and remain inaccessible for asylum seekers coming to Indonesia who instead entirely rely on the UNHCR.

Following a more-than-four-year drafting process, the much-awaited Presidential Decree 125 of 2016 Concerning the Handling of Foreign Refugees was passed in December 2016. The decree provides a definition of who is a refugee in accordance with international standards, but does not offer legal pathways for protection in Indonesia, such as local integration.

Following Inside Indonesia’s special issue on asylum seekers and refugees published one year ago, this article outlines the key provisions of the decree, as well as pointing to some gaps and ongoing uncertainties.

The presidential decree formalises Indonesia’s position that the only options offered to refugees are resettlement or repatriation. Integration – even on a temporary basis – remains out of the question. As a result, the approximately 14,000 asylum seekers and refugees in Indonesia remain unable to access rights to work, health or education. The decree does not set out new rights for asylum seekers and refugees, instead focusing on technical guidelines for their reception and management. In contrast to earlier drafts, for example, the final decree does not include access to education for refugee children.

Search and rescue

The presidential decree was clearly spurred by the Andaman Sea crisis of 2015, during which much time and resources were wasted preventing asylum seeker boats from coming to shore. Instead of allowing starving and dehydrated Rohingya from disembarking, the Indonesian navy sailed out to hand out water, fuel and basic food items, while ordering them to head towards the open waters. This back-and-forth continued for almost 10 days, when the Indonesian and Malaysian foreign ministers finally decided to permit the Rohingya to come to their shores. Nevertheless, the search and rescue missions came very late and lives were lost.

According to the new presidential decree, search and rescue operations must be initiated when a boat suspected of carrying asylum seekers issues an emergency call. Responsibility for search and rescue is placed in the hands of multiple agencies, including the Indonesian military and police. The instructions for carrying out rescue operations are clear: passengers from a boat in distress must be brought on land where there is a threat to their safety.

Emphasising the duty to rescue is important as this should rule out further pushing back of boats in distress. For example, in June 2016 a boat with more than 40 Tamil asylum seekers onboard became stranded in Acehnese waters. Rather than allowing the asylum seekers to land, police fired shots over the boat to prevent disembarkation. Only after a one-week stand-off and intense lobbying efforts by activists were the passengers allowed to land and receive proper aid.

Asylum seekers and refugees inside the immigration detention centre in Tanjung Pinang. (Credit: Dave Lumenta)

Reception conditions

Alongside these clear instructions regarding search and rescue, it is also crucial to ask what happens to asylum seekers and refugees once they are on land. According to the decree, they are to be taken to the nearest detention centre or immigration office. Upon entering detention, rescued passengers have to undergo various identity checks. At this point, they must declare the intention to seek asylum so that the UNHCR can begin refugee status determination.

Although the decree spells out options for accommodating asylum seekers and refugees outside detention, these provisions do not contain any new policy alternatives. Rather, they cement many of the procedures already in place, such as giving special consideration to women, children, and elderly or sick asylum seekers. Given that Indonesia is one of the 12 test cases of the UNHCR pilot program to implement alternatives to detention, it was disappointing that the decree did not contain more provisions on overcoming detention.

The decree also includes a greater emphasis on deportations. Although in the past this option existed for twice-rejected asylum seekers, it was rarely carried out, mainly due to lack of funding. More frequent were the ‘assisted voluntary return’ programs, paid for by the International Organization for Migration (IOM), an inter-governmental organisation related to the United Nations. Many of those who remained in Indonesia after being rejected twice lost their monthly financial support and housing from IOM and were forced into working illegally. According to the new decree Indonesia now intends to carry out deportations more rigorously.

Still stuck

The decree does not implement a domestic legal mechanism. Given the absence of a coherent policy for refugee protection, the decree falls short of offering the legal certainty that was hoped for. Many points remain vague, including responsibility for funding activities after initial reception. Most costs are likely to be borne by the IOM, as in the past, whose largest donor is Australia. There is a lack of clarity in the decree on the use of the Indonesian state finances to promote refugee protection. According to the decree, local government can apply for state funding in advance to accommodate refugees, but the details on how to do so have not been released.

The significance of the decree is thus limited. Clear procedures around search and rescue of refugees are important in saving lives in the future, and therefore defining who is a refugee in accordance with international law is an important step. However, in practice the changes stemming from the decree for asylum seekers and refugees in Indonesia are insignificant and will offer little improvement in people’s day-to-day ordeals.

Rising anti-refugee sentiment

Beyond the new decree, there are a number of other changes that can be observed on the ground. In a recent meeting between the Bogor district government and the Coordinating Ministry for Politics, Law and Security, the district head urged for the relocation of more than one thousand asylum seekers and refugees living in the area, as soon as possible. The Bogor representative alleged that the presence of the refugees had a negative impact on the area. This new initiative reminds of the forced relocations and evictions of asylum seekers and refugees from that area that took place in 2012 and 2013.

Finally, the number of refugees resettled from Indonesia is likely to fall. The Trump administration has announced its intention to reduce resettlement from 116,000 last year to 50,000 this year, prioritising Christian refugees. This decision might affect those Rohingya who arrived during the Andaman Sea crisis, who since November 2016 have been undergoing preparations for resettlement in the United States. Between January and November 2016, 761 refugees were resettled from Indonesia to the US, but only 347 to Australia – less than half the number from previous years. This scarcity of places will likely further delay resettlement, making the wait for refugees longer and more difficult, and highlighting the absence of durable solutions in Indonesia.

Dr Antje Missbach (antje.missbach@monash.edu) is a senior lecturer in Anthropology at Monash University.

Nikolas Feith Tan (nik.feith.tan@gmail.com) is a PhD fellow at Aarhus University and the Danish Institute for Human Rights in the field of international refugee law.