374

Devi Rahayu, et. al

LJIH 32 (2) September-2024, 374-393

LEGALITY: JURNAL ILMIAH HUKUM
Journal homepage: http://www.ejournal.umm.ac.id/index.php/legality

The Neglect of Protection for Undocumented
Migrant Workers within the Framework of Human
Rights Law
Devi Rahayu1*, Dina Imam Supaat2, Mirna Yusuf3
1 Faculty of Law, University of Trunojoyo Madura, Bangkalan, East Java, 69162, Indonesia
2 Faculty of Syariah and Law, University Sains Islam Malaysia, Bandar Baru Nilai, 71800, Malaysia
3 Faculty of Social and Political Sciences, Universitas Gajah Mada, Sleman, DI Yogyakarta, 55281,

Indonesia
* Corresponding author: rahayudevi78@yahoo.com

Abstract

Article
Keywords:
Neglect of Protection;
Undocumented
Migrant
Workers; Human Rights.

The safeguarding of fundamental rights for undocumented migrant workers
represents a critical challenge that necessitates immediate attention. This article
addresses the oversight within the human rights discourse regarding the fundamental
rights of undocumented migrant workers. Through empirical normative research,
incorporating a comprehensive review of normative literature, this study critically
examines the regulations affecting migrant workers through the lens of human
Article History
rights. It identifies a significant correlation between the lack of protective guarantees
Received: Jul 10, 2024;
for undocumented migrant workers and the various cases and consequences that
Reviewed: Jul 26, 2024;
ensue. From a human rights perspective, regulations prioritise equality before the
Accepted: Sep 11, 2024;
law, protection, and anti-discrimination. This stance contrasts with existing laws
Published: Sep 15, 2024.
that govern Indonesian migrant workers, wherein protection is exclusively extended
to those legally recognised. Such exclusivity denies undocumented migrant workers
the assurance of their fundamental rights. Arguably, the provision of basic rights
and protections should be indiscriminately extended to all migrant workers,
irrespective of their legal status. While the specifics of migrant worker placement
can still be regulated concerning requirements, processes, involved parties, and
responsibilities, these regulations must not infringe upon the fundamental human
rights of individuals. Consequently, this paper advocates for a thorough evaluation
of current legislation with respect to its content, the comprehension of involved
stakeholders, and the practical implementation of regulations concerning the
management of migrant workers.
Copyright ©2024 by Author(s); This work is licensed under a Creative
Commons Attribution-ShareAlike 4.0 International License. All writings
published in this journal are personal views of the authors and do not represent
the views of this journal and the author’s affiliated institutions.

ISSN (Print) 0854-6509 - ISSN (Online) 2549-4600

Devi Rahayu, et. al.

375

LJIH 32 (2) September-2024, 374-393

INTRODUCTION
The lack of protection for the fundamental rights of undocumented migrant
workers constitutes a critical issue that demands urgent academic and policy attention.
These workers frequently become victims of fraudulent schemes orchestrated by both
individuals and officials, a situation exacerbated by factors such as limited alternative
employment, poverty, the relative ease of the undocumented migration process, and
exploitative practices prevalent in border regions (Bloch, 2013). The Indonesian
Migrant Worker Protection Agency (BP2MI) estimated that in 2023, approximately 4.5
million individuals engaged in undocumented migration (Ikhsanudin, 2023).
The absence of regulations concerning undocumented migrant workers
represents a form of neglect in providing adequate protection. Protection neglect is
multifaceted, emerging when parties are absolved of accountability for specific actions
or hazards, such as healthcare provision, community life support, and employment
assistance (Chuang, 2010). Wilkinson and Craig (2012) highlight this neglect in the
context of employment support, specifically noting the lack of social and labour
protections for informal workers (Al-Fatih et al., 2023). Furthermore, Wilkinson
(2012) draws attention to the exploitation endemic in key industry sectors, exacerbated
by the refusal to formally recognise domestic labour as deserving of worker protections
due to its informal status. This perspective aligns with Noll's (2010) assertion that the
absence of legal safeguards leaves workers vulnerable to exploitation and violence.
Protection neglect is deeply intertwined with societal const’ucts such as gender, class,
race, and nationality (Wilkinson, 2012). The fragility of regulatory frameworks and the
ineffectiveness of law enforcement mechanisms significantly contribute to the
oversight of rights that should be secured (Sharma & Lalit, 2020). Consequently, this
neglect adversely impacts the overall well-being of undocumented migrant workers
and their access to essential services.
Migrant workers migrate from one country to another in search of employment
or improved living conditions (Zanfrini, 2022). Undocumented migrant workers, who
lack official immigration documentation and recognised status as migrant workers,
consequently fall outside the scope of governmental legal protection (Suyanto et al.,
2020). The phenomenon of undocumented migration involves a wide array of
complexities. The classification of individuals as undocumented is not solely
determined by the absence of legal documentation but also by their origins and the
methods through which they enter a host country. The undocumented status of these
workers exposes them to numerous threats and vulnerabilities, including employment
under conditions of minimal wages, substandard living conditions, vulnerability to
extortion by law enforcement, and an increased risk of workplace accidents (Rustam
et al., 2022).
The symbiotic relationship between human rights and the rule of law is crucial,
with the latter ensuring the prioritisation and protection of human rights. The primary
function of the law is to safeguard individuals as they pursue their various interests,

ISSN (Print) 0854-6509 - ISSN (Online) 2549-4600

Devi Rahayu, et. al

376

LJIH 32 (2) September-2024, 374-393

albeit with the understanding that each person must also consider the interests of
others (Hutabarat et al., 2021). Human rights law is a complex domain encompassing
many international and domestic legal frameworks (Huhta, 2023). Its primary objective
is to address the disparities encountered in the pursuit of justice. Norms established
within human rights law provide viable mechanisms for the enforcement of laws on a
global scale (Fudge, 2014), underscoring the significance of human rights law in
advocating for freedom and justice in accordance with the principles of humanity.
Within the framework of human rights law, different perspectives are employed
to examine various forms of injustice. It is observed that certain legal systems fail to
extend equitable rights to undocumented migrant workers (Hidayah et al., 2022).
Nonetheless, the challenges faced by undocumented migrant workers are inherently
linked to human rights, invoking the fundamental principle of human dignity as
enshrined in the UN Charter, which obligates all nations. This obligation includes
adherence to jus cogens norms within every international agreement, customary
international law, and other international responsibilities to protect all migrant
workers, regardless of their documentation status (Theddy et al., 2022). Despite this,
the stark reality remains that most nations lack comprehensive legislation or
regulations to protect migrant workers, particularly those who are undocumented
(Kartono et al., 2022).
A scholarly investigation into the human rights implications for undocumented
migrant workers—focusing on their experiences, the normative frameworks governing
their rights, and the consequences of neglecting their protection—is essential for
advocating and safeguarding these fundamental human rights. To date, scholarly
examinations of undocumented migrant workers have primarily concentrated on their
challenges and the protective measures undertaken by diplomatic representatives
abroad. Within this discourse, three predominant perspectives emerge. Firstly, research
has highlighted the exploitation and victimisation of migrant workers (Ajis et al., 2015;
Noll, 2010; Putra & Runturambi, 2022). Secondly, studies addressing the protection of
migrant workers often focus exclusively on those with legal status, thereby overlooking
the normative foundations of human rights (Kumar & Choudhury, 2021). Thirdly, the
literature identifies the repercussions of neglecting protection for undocumented
migrants, including trafficking (Maksum, 2021) and deportation at international
borders (Alunaza et al., 2022). This analysis reveals a significant gap in the human rights
discourse surrounding undocumented migrant workers, with existing studies
inadequately addressing the intersection of their lived experiences and the broader
implications of such neglect.
This study aims to address the gaps in previous research that have overlooked the
human rights perspective concerning undocumented migrant workers. By integrating
a human rights viewpoint, the study offers unique insights into the fundamental rights
of these workers. Understanding this perspective enables a normative analysis that
seeks to mitigate the challenges faced by undocumented migrant workers.

ISSN (Print) 0854-6509 - ISSN (Online) 2549-4600

Devi Rahayu, et. al.

377

LJIH 32 (2) September-2024, 374-393

Consequently, this research is guided by three pivotal questions. First, what incidents
commonly affect undocumented migrant workers? Second, how are current legal
frameworks structured, and what critical insights can a human rights lens offer to these
workers? Third, what consequences arise from the disregard for the protection of
undocumented migrant workers? Addressing these questions will provide profound
insights, laying the groundwork for developing protective policies tailored to the needs
of Indonesian migrant workers.
The central premise of this paper is that the predicaments faced by undocumented
migrant workers stem from a lack of normative protections, which can be interpreted
as state negligence from a human rights standpoint. The deployment of migrant
workers has led to identifiable patterns and actors responsible for perpetuating
undocumented migration activities (Machin & Shardlow, 2022). These entities
commodify migrant workers, exploiting them for profit within the unlawful placement
process. The absence of normative protections leaves undocumented migrant workers
vulnerable to exploitation by organised groups. Three fundamental conditions
contribute to this vulnerability: First, situations arise and threaten human dignity.
Second, the fragility of migrant workers is underscored by their unequal access to
protection. Third, there is a glaring omission by the state in ensuring the basic rights
of migrant workers. A thorough understanding of these precarious conditions is crucial
for the development of laws imbued with a human rights orientation. This paper seeks
to examine the legal responses to the problem of non-procedural migrant workers and
to provide recommendations to the government for ensuring the basic rights of
migrant workers as they navigate cross-border job mobility.
METHOD
This study explores the experiences of migrant workers who migrate through
unauthorised or irregular channels. The heightened risk of undocumented migrant
workers becoming victims, combined with the restrictive nature of existing regulations
that often objectify these workers, highlights the need for a paradigm shift. This
research, therefore, adopts a perspective that recognises migrant workers as human
subjects endowed with fundamental human rights, including those specific to their
status as migrant workers. The study places particular emphasis on undocumented
migrant workers, examining the challenges they face, the regulatory framework
governing them, and the consequences of neglecting their protection. It draws on
various case studies and their outcomes, informed by the narratives of key
stakeholders. Additionally, a critical analysis of migrant worker regulations addresses
the observed negligence in providing adequate protection (Nur et al., 2023).
The methodological approach of empirical normative research (Al-Fatih, 2023) is
the most appropriate for investigating this oversight in protection. This methodology
combines normative analysis, critically assessing current migrant worker regulations

ISSN (Print) 0854-6509 - ISSN (Online) 2549-4600

Devi Rahayu, et. al

378

LJIH 32 (2) September-2024, 374-393

through the lens of human rights law (Pelu et al., 2022). The aim is to propose
regulations that are both inclusive and non-discriminatory towards undocumented
migrant workers. Data for this research are sourced from secondary materials,
including literature reviews and document analyses of regulatory studies. Primary data
are collected empirically through field observations and interviews to gather firsthand
information. By integrating normative analysis with fieldwork data, the study seeks to
provide a comprehensive understanding of the issues surrounding the neglect of
protection for undocumented migrants and to propose viable solutions.
This research includes an analysis of documents related to the Law on the
Protection of Indonesian Migrant Workers (UU PPMI) and the Human Rights Law
(UU HAM). Empirical data is obtained from interviews with migrant workers in
Indonesia and Malaysia, labour departments, the Indonesian Migrant Worker
Protection Agency (BP2MI), the Ministry of Foreign Affairs, the National
Commission on Human Rights (Komnas HAM), Migrant CARE, migrant worker
groups in Malaysia, the Indonesian Embassy in Kuala Lumpur, and Migrant CARE
Malaysia. Conducting empirical studies in both the sending (pre-employment) and
receiving (during employment) countries enables a comprehensive understanding of
the experiences of migrant workers across these contexts. The normative analysis seeks
to propose human rights-based alternatives for migrant worker regulations. Insights
derived from fieldwork and literature will contribute to a contextual understanding that
can guide the development of recommended norms. Primary data is gathered from
interviews with various stakeholders, and the data is then qualified according to the
phenomena, variables, and conditions identified (Suwarti et al., 2022).
Data was collected through a desk review, drawing on official reference sources
such as legislation, books, publications, and research findings to compile relevant
information. Systematic interviews were structured with clear and focused questions
to obtain accurate and reliable information directly from primary sources. Interviews
were conducted with all informants, including migrant workers, government
representatives, and NGOs in Indonesia and Malaysia, ensuring the validity of the
collected data. Information from brokers or agents involved in illegal deployment was
also obtained through direct meetings and inquiries. The interview and literature data
were then used to critically review cases, impacts, and norms. Data analysis employs a
descriptive approach, categorising similar information and data into sub-aspects to
facilitate interpretation. Following categorisation, qualitative analysis was applied to
both primary and secondary data.
RESULTS AND DISCUSSION
All Indonesian citizens employed abroad are inherently entitled to equal
protection from their national representatives stationed overseas. The significant
interest of Indonesian workers in seeking employment abroad is primarily motivated

ISSN (Print) 0854-6509 - ISSN (Online) 2549-4600

Devi Rahayu, et. al.

379

LJIH 32 (2) September-2024, 374-393

by the belief that such opportunities can alleviate the lack of domestic job prospects
and provide a route out of poverty. However, the reality often contradicts these
expectations, as many migrant workers face numerous challenges during their time
abroad. Despite the existence of legal frameworks intended to protect these
individuals, state institutions frequently fail to deliver adequate support to those in
need, particularly undocumented migrants, who are at the heart of this neglect. The
regulatory leniency towards migrant workers has significantly contributed to the
increasing number of undocumented migrants. This study examines the nature,
underlying causes, and consequences of the protection neglect experienced by
undocumented migrant workers in foreign countries.
Increase in Cases Involving Undocumented Indonesian Migrant Workers
The number of complaints from Indonesian migrant workers increased between
2021 and 2023. In 2021, there were 1,700 complaints, followed by an unspecified
number in 2022 and 1,999 complaints in 2023. In 2023, complaints from nonprocedural migrant workers comprised 81% of the total, amounting to 1,618 cases.
Additionally, from 2020 to 2024, 110,056 migrant workers were deported due to
entering their destination country through non-procedural means. According to data
provided by P4TKI (Indonesian Migrant Worker Placement and Protection Service
Post) Pamekasan, between 2021 and 2023, 5,657 migrant workers were repatriated due
to incomplete documentation.
Interviews were conducted with 20 Madurese migrant workers from Pamekasan
and 22 from Sampang, most of whom had worked in Malaysia. The data reveal that
these workers often entered Malaysia through brokers without proper procedures.
Their work permits were typically arranged after arrival in Malaysia. Moreover, the
most common issue they faced while working was unpaid wages. Below is a summary
of some of the interview data:
Table 1. Cases Involving Indonesian Migrant Workers
Informant
Field of
Interview Quote
Type
work
1
Domestic
“After arriving at the employer’s Violence
worker
house, [the worker] was confined by
the employer.” (All documents were
confiscated by the employer)
2
Domestic
“Experienced violence from the Violence
worker
employer, including being slapped
and abused.”
3
Domestic
“Faced verbal abuse and acts of Violence
worker
indecency while staying in a shelter
located in the forest.”

ISSN (Print) 0854-6509 - ISSN (Online) 2549-4600

380

Devi Rahayu, et. al

4

5
6

LJIH 32 (2) September-2024, 374-393

Construction “During
employment,
wages
worker
frequently went unpaid due to the
foreman’s
disappearance,
and
disputes over these unpaid wages with
the superior led to [the worker] being
reported and subsequently becoming
a fugitive from the Malaysian police.”
Construction “Experienced unpaid wages because
worker
the foreman fled.”

Non-payment
of wages

Domestic
worker

Non-payment
of wages

“The wages paid were not as agreed
upon, with deductions made under
the pretext of covering departure
costs.”
7
Domestic
“Doing work that was not as agreed
worker
upon, which was hard without a raise
like fellow domestic workers. The
Indonesian migrant worker stayed for
2.5 years, and due to no change in
conditions, the worker eventually
fled.”
8
Domestic
“There was no written employment
worker
contract, work did not match the
agreement, and working hours were
unlimited as per the employer’s
orders.”
9
Domestic
“The absence of an employment
worker
contract and clear working hours,
thus having to comply with the
employer’s orders.”
Source: Data compiled by authors, 2024

Non-payment
of wages

Exploitation
of working
hours

Exploitation
of working
hours

Exploitation
of working
hours

The neglect of protection for undocumented migrants has led to widespread
incidents affecting Indonesian migrant workers, primarily manifesting in violence,
non-payment of wages, and exploitation of working hours. The violence endured by
these workers spans verbal abuse, physical assault, sexual harassment, and
psychological trauma. Verbal abuse often begins in shelters and continues at the
employer’s premises, perpetrated by both shelter authorities and employers, who may
dehumanise migrant workers by comparing them to animals. Physical assault includes
actions such as slapping and other forms of mistreatment, while sexual harassment
involves indecent acts committed by shelter supervisors. Psychological trauma,
resulting from verbal, physical, and sexual abuse, profoundly affects victims,

ISSN (Print) 0854-6509 - ISSN (Online) 2549-4600

381

Devi Rahayu, et. al.

LJIH 32 (2) September-2024, 374-393

manifesting as a significant psychological consequence. The primary victims of such
violence are those employed in the domestic sector.
Unpaid wages are categorised into delayed payments, payments less than the
agreed amount, and complete non-payment. This issue is particularly prevalent among
construction workers, often due to foremen absconding. Domestic workers frequently
receive less than the agreed payment and face unjust wage deductions. Labour
exploitation is evident in excessive working hours, discrepancies between agreed-upon
conditions and actual work, stagnant wages despite increased workloads, and the
absence of formal employment contracts. As a result, migrant workers often work
beyond the standard eight-hour shift, with ambiguous schedules and being on call at
all hours, subject to their employer’s demands. These exploitative practices are
common reasons for migrant workers to escape their employment situations.
Collectively, these issues underscore the diverse challenges faced by Indonesian
migrant workers abroad and highlight the urgent need for enhanced protection
measures.
Table 2. Legal Basis of Protection Arrangement
Content
Description
Legislation

1945 Constitution

The Preamble of the 1945
Constitution
of
the
Republic of Indonesia
(UUD
RI
1945),
paragraph IV, mandates
the protection of the
entire Indonesian nation,
the promotion of general
welfare, the advancement
of national education, and
participation
in
maintaining global order.

Article 27, paragraph 2

The protection provided by
the state extends to
workers, particularly those
who are vulnerable to
exploitation
and
victimisation by employers.
This vulnerability stems
from
the
inherent
imbalance in the laboremployer
relationship,
which
necessitates
protective measures for
workers,
including
Indonesian
migrant
workers. Additionally, the
state engages in foreign
relations with various
countries to fulfil these
constitutional obligations.
Basic rights for every
citizen
to
obtain
employment and a decent

ISSN (Print) 0854-6509 - ISSN (Online) 2549-4600

Devi Rahayu, et. al

382

LJIH 32 (2) September-2024, 374-393

Every citizen has the right living both domestically
to work and a decent and abroad
living for humanity
Article 28D, paragraph 1
Everyone has the right to
legal recognition and
assurance

The fundamental right of
every citizen to legal
guarantees,
explicitly
addressing undocumented
migrants

Article 1, paragraph 1:
An Indonesian migrant
worker candidate is any
Indonesian labour force
that
meets
the
requirements of a job
seeker who will work
abroad and is registered
with the district/city
government
agency
responsible for labour.
Article 33:
The central and regional
Law No. 18 of 2017
governments
provide
concerning the
legal
protection
for
Protection of Indonesian Indonesian
migrant
Migrant Workers
workers by the provisions
of legislation, the laws of
the destination country, as
well as international laws
and customs.

It defines Indonesian
migrant worker candidates,
limited to those who meet
the requirements and are
registered with an agency.

Article 68:
Everyone is prohibited
from placing Indonesian
migrant workers in a
manner that does not
meet the requirements
referred to in Article 5,
letters b to e.
Article 3, paragraph 3:

It defines restrictions for
individuals to place migrant
workers by the law. This
provision
does
not
recognise undocumented
migrant workers who
depart
through
individuals/brokers.
The provision broadly
regulates the guarantee of

In
this
context,
undocumented
migrant
workers are not included in
this rule.
It defines the scope of
protection provided by the
government to migrant
workers according to the
legislation. In this context,
undocumented
migrant
workers are not included.

ISSN (Print) 0854-6509 - ISSN (Online) 2549-4600

383

Devi Rahayu, et. al.

Law No. 39 of 1999 on
Human Rights

LJIH 32 (2) September-2024, 374-393

The
protection
of
Indonesian
migrant
workers aims to:
a. guarantee the fulfilment
and enforcement of
human rights as citizens
and Indonesian migrant
workers; and
b. ensure legal, economic,
and social protection for
Indonesian
migrant
workers and their families
Article 3, paragraph 2:
Everyone has the right to
recognition, guarantee,
protection, and fair legal
treatment, as well as legal
certainty
and
equal
treatment before the law.
Article 3, paragraph 3:
Everyone has the right to
human rights protection
and fundamental human
freedoms
without
discrimination.

rights as citizens and the
assurance of protection.
This provision conflicts
with Article 1, paragraph 1.

The
recognition
and
guarantee of protection and
treatment before the law.
This construction conflicts
with UU PPMI, which
applies only to legal
migrant workers.
It defines the right to
protection and the absence
of discrimination. This
conflicts
with
the
differential regulations and
treatment between legal
and
undocumented
migrant workers.

Source: Data compiled by authors, 2024
The 1945 Constitution of Indonesia enshrines the fundamental rights of its
citizens, including the right to employment, which extends beyond mere access to jobs,
emphasising the necessity of securing humane employment that adheres to established
norms of decency. The Constitution asserts that “every citizen has the right,”
obligating the state to protect these rights effectively. Employment is recognised as a
transnational right, applicable both within Indonesia and abroad, and these rights are
intrinsically linked to citizenship. This protection must equally apply to citizens
working overseas as migrant workers, regardless of their documented or
undocumented status.
A fundamental aspect of citizen rights is the right to legal recognition and
assurance, necessitating equal legal treatment under laws such as the Indonesian

ISSN (Print) 0854-6509 - ISSN (Online) 2549-4600

Devi Rahayu, et. al

384

LJIH 32 (2) September-2024, 374-393

Migrant Worker Protection Law. This law stipulates that Indonesian migrant workers
are eligible for protection if they meet the requirements and are registered with an
authorised agency, as outlined in Articles 5 and 13 of the law. Registration through the
employment information system at the local government level signifies official
recognition. Article 68 of the same law further stipulates that the placement of migrant
workers must comply with legal requirements; any placement that does not meet these
criteria is prohibited. Only private companies are authorised to facilitate such
placements. Additionally, Article 33 delineates the scope of protection available,
implicitly limiting the protection afforded to undocumented Indonesian migrant
workers. These provisions collectively establish the legal framework restricting the
protection available to undocumented Indonesian migrant workers.
Undocumented migrant workers are categorised into two groups: non-procedural
undocumented workers and those who are victims of human trafficking. Nonprocedural workers are individuals who do not fulfil the administrative requirements
outlined in the Indonesian Migrant Worker Protection Law, while trafficking victims
may include both those who have and have not followed procedural protocols. Article
3, paragraph 3 of this law presents a paradox by mandating protections that ensure the
human rights of both citizens and migrant workers, encompassing legal, economic,
and social aspects. This suggests that protection based on human rights is an intrinsic
entitlement for all migrant workers, irrespective of their legal status.
This principle is further reinforced by the Human Rights Law, which guarantees
recognition, protection, and equal treatment before the law (Article 3, paragraph 2),
alongside the right to non-discriminatory protection (Article 3, paragraph 3). These
provisions establish the foundation for equitable treatment of all citizens under the
law, emphasising protection free from discrimination. However, this highlights a
discrepancy between the Human Rights Law and the Indonesian Migrant Worker
Protection Law, particularly in their differing regulations concerning legal and
undocumented migrant workers. While the Human Rights Law acts as a basis and
standard for fulfilling migrant workers’ rights, stressing the importance of nondiscrimination, the Indonesian Migrant Worker Protection Law has yet to fully
integrate these human rights principles into its regulations. This has resulted in a
divergence in the protection of migrant workers based on their legal status.
Regulations governing the requirements and procedures for migrant worker
placement are essential for streamlining the process and ensuring proper oversight.
However, the promise of protection must extend universally to all Indonesian migrant
workers, regardless of their documentation status.
Table 3. Problems Faced by Undocumented Migrant Workers
Informant
Interview Quote
Type

ISSN (Print) 0854-6509 - ISSN (Online) 2549-4600

Devi Rahayu, et. al.

385

LJIH 32 (2) September-2024, 374-393

Informant
1

“Currently, Indonesia is facing an emergency regarding
the placement of undocumented Indonesian migrant
workers. There are 720 cases with the police, 255 cases
with the prosecution, and 42 cases have been
sentenced.”
Informant “There’s a difference in perception regarding the
2
handling of trafficking cases in Malaysia. The Malaysian
Human
government distinguishes cases involving Indonesian
migrant workers into immigration, breach of contract, trafficking
and trafficking. So, even if a migrant worker is a victim
of trafficking but lacks documentation, they will be
charged with immigration offences, and if a migrant
worker is not paid, it’s considered a breach of contract.
Due to this perception, many cases categorised by the
Indonesian Embassy as trafficking are not recognised
as such by Malaysia.”
Informant “It’s estimated that 4.5 million Indonesian migrant
1
worker placements were made illegally, of which 1.3
million are destined for Malaysia. From 2019–2023,
there were 102,945 Indonesian migrant workers
deported and repatriated, mostly from Malaysia.”
Deportation
Informant “Malaysia deports PMIs working without a work
3
permit. Previously, the government covered the cost
with the foreign ministry’s budget. Due to budget
constraints, now if a PMI is legal, the cost is borne by
the company; if illegal, by their family members.”
Informant “Fled from the employer because there was no wage
4 (domestic increase, then was falsely accused by the employer of
worker)
stealing money. On the other hand, the Indonesian
migrant worker’s employer also reported to the
immigration authorities, and the worker was blacklisted
from Malaysia.”
Entry ban
Informant “Indonesian migrant workers deported from Malaysia
5
will be blacklisted from re-entering for two years.
(Malaysian However, Indonesian migrant workers find ways
NGO)
around this, usually re-entering Malaysia after 3 or 6
months using fake identities, all arranged by brokers.”
Source: Data compiled by authors, 2024
Indonesia is facing a critical issue regarding the placement of undocumented
migrant workers due to insufficient legal frameworks. Currently, there are 720 cases

ISSN (Print) 0854-6509 - ISSN (Online) 2549-4600

Devi Rahayu, et. al

386

LJIH 32 (2) September-2024, 374-393

filed with the police, 255 cases under prosecution, and 42 cases leading to convictions.
Malaysia, a key destination for these workers, predominantly sees placements carried
out in a non-procedural manner, which significantly heightens the risk of human
trafficking. The Indonesian Embassy in Malaysia is handling 23 human trafficking
cases (informant 1). A significant disparity exists between the Indonesian and
Malaysian governments in their perceptions of human trafficking. Malaysian
authorities do not recognise unpaid wages and restricted freedom of movement as
indicators of trafficking, resulting in their refusal to enforce the Anti-Trafficking in
Persons and Anti-Smuggling of Migrants (Amendment) Act 2022 (ATIPSOM 2022)
due to insufficient evidence. This approach leads to the criminalisation of victims for
immigration violations under the immigration act rather than acknowledging their
exploitation. This fundamental difference in perspective causes discrepancies between
the trafficking statistics recorded by Indonesia and Malaysia, underscoring the
challenges in safeguarding the rights and safety of migrant workers.
Regarding migrant workers in Malaysia, the authority lies with the Ministry of
Home Affairs, which regulates the recruitment of migrant workers and considers
employer applications, as well as the Ministry of Human Resources, which is
responsible for the employment of migrant workers in Malaysia. There are 3 (three)
regulations governing migrant workers. Firstly, the Employment Act 1955 (sect. 2)
defines migrant workers as non-citizen workers and migrant workers who are legally
employed in Malaysia under the Employment Act 1955. This provision only regulates
migrant workers in general and does not differentiate between them regarding
expertise. Secondly, the Immigration Act 1959/63 regulates the work pass issued by
Malaysian Immigration, which allows migrant workers to work for a set period of 2
(two) years. In section 6 (1)(C) regarding the rules of entry into Malaysia, anyone who
enters and stays in Malaysia without a permit and legal papers is guilty of an offence.
Thirdly, the 1994 Malaysian Development Institute of Industrial Development (CIDB)
Deed qualifies workers into skilled workers, unskilled workers, and semi-skilled
workers. The Deed stipulates that foreign workers who are not skilled must undergo a
training and examination process to obtain a skilled certificate (Abdul Rahim et al.,
2019).
Deportation is enforced on migrant workers who enter a country without the
necessary documentation, such as passports and work permits, which are essential for
legal employment. The lack of these documents violates Malaysian immigration laws,
leading to the arrest and subsequent imprisonment of violators for three months,
followed by forced repatriation coordinated with the local Indonesian Embassy.
Between 2019 and 2023, a total of 102,945 Indonesian migrant workers were deported
and repatriated, with the majority being from Malaysia. The substantial financial
burden of deportation, initially shouldered by the government, has since been
transferred to employers and the undocumented workers themselves. Additionally,
deportation is imposed on migrant workers found guilty of criminal activities, such as

ISSN (Print) 0854-6509 - ISSN (Online) 2549-4600

Devi Rahayu, et. al.

387

LJIH 32 (2) September-2024, 374-393

theft from their employers. Escaping from employers and the resulting reports can
also serve as grounds for deportation. Once deported, these workers face a two-year
ban from re-entering Malaysia. However, it is common for many to return before the
ban expires, often using false identities and engaging in illegal processes. The rise in
such cases, along with the adverse experiences of migrant workers and gaps in the legal
framework, highlights the inadequacy of the current laws in protecting undocumented
migrant workers.
An analysis of the neglect of undocumented migrant workers can be approached
by examining the legal substance, legal structure, and legal culture, as proposed by
Lawrence M. Friedman (Karunia, 2022). According to Friedman, these three indicators
serve as benchmarks for assessing law enforcement. First, regarding legal substance,
the provisions of the Indonesian Migrant Worker Protection Law fail to address the
status of undocumented migrant workers. As a result, only formally processed migrant
workers are guaranteed protection under this law. Although non-procedural migration
exposes workers to significant risks, 81% of the 1,999 recorded cases involve nonprocedural migrant workers. The lack of specific provisions governing undocumented
workers means that the rights guaranteed to migrant workers under the relevant law
cannot be extended to them. Instead, undocumented migrant workers are only
afforded protection as citizens when they encounter issues abroad, rather than being
recognised and protected based on labour regulations. In labour-related issues,
intervention is generally predicated on a valid work permit and a signed work
agreement, which forms the basis of an employment relationship. When
undocumented workers face problems and wish to return to Indonesia, the cost of
repatriation falls on them.
In contrast, documented migrant workers receive assistance with repatriation
costs from their placement companies once their issues are resolved. While Indonesian
state representatives may provide assistance in resolving these problems,
undocumented workers often refrain from reporting due to fear of being questioned
about their documentation by immigration authorities. Consequently, their rights as
workers are neglected, overshadowed by concerns over their legal status. Second, the
legal structure refers to the institutions responsible for enforcing the law, particularly
those involved in labour law enforcement. The government has tried to simplify the
documentation process for migrant workers by establishing one-stop service centres.
This initiative was in response to the preference among migrant workers for quicker
and simpler placement processes. Although law enforcement officers in border areas
have adhered to established procedures, undocumented workers still manage to cross
borders under the guise of visiting or travelling. This points to gaps in the legal
structure that allow undocumented migration to persist.
Finally, legal culture encompasses the values and attitudes that influence how the
law operates, often referred to as legal consciousness or public legal awareness. A
strong legal culture is reflected in high levels of public compliance with the law. In the

ISSN (Print) 0854-6509 - ISSN (Online) 2549-4600

Devi Rahayu, et. al

388

LJIH 32 (2) September-2024, 374-393

context of migrant workers, the high number of undocumented workers and frequent
deportations indicate that many prioritise swift departure and immediate employment
over compliance with legal procedures. This lack of legal awareness among prospective
migrant workers perpetuates the issue of undocumented migration. Additionally,
migration has become a deeply ingrained practice in some regions passed down
through generations. For example, the Madurese community has a long history of
migrating to Malaysia, often entering the country on visitor passports and only applying
for work permits after securing employment. This was highlighted in focus group
discussions with Madurese construction workers.
Undocumented Migrant Workers within the Framework of Human Rights Law
This research highlights the inadequacy of protection for undocumented
Indonesian migrant workers, revealing complex perceptions surrounding this issue.
The findings are presented through three key points. First, the failure to adequately
safeguard migrant workers has led to an increase in incidents involving undocumented
workers, including violence, wage discrepancies, and exploitation (Luo et al., 2023).
Second, this deficiency stems from regulatory frameworks that do not
comprehensively cover the rights of all migrant workers. The Indonesian Migrant
Worker Protection Law, while offering protections for legally migrating workers,
stands in contrast to the Human Rights Law by excluding undocumented workers
from similar protections. Third, this protection gap exacerbates issues such as human
trafficking, deportation, and the imposition of entry bans on Indonesian migrant
workers. Collectively, these findings underscore the urgent need to address the
protection deficit for undocumented migrant workers within the framework of human
rights law.
The neglect of undocumented migrant workers results from a dichotomous
approach to rights and protection, where legal and undocumented workers receive
unequal treatment. The absence of legislative measures ensuring equality of rights lays
the groundwork for the challenges faced by migrant workers (Rogozhina, 2020). The
ongoing regulatory distinctions in rights allocation signify a persistent state of neglect,
amounting to a violation of citizens' rights (Negrón-Gonzales, 2023). This neglect is
rooted in a positivist perspective that overlooks individuals' intrinsic humanity and
fundamental rights. Migrant workers are still often viewed as commodities, a
perspective that benefits both origin and destination countries through the illegal
placement process (Guidi & Berti, 2023).
Moreover, the disregard for the protection of undocumented migrant workers
reveals two critical insights. First, it demonstrates that existing laws have failed to align
with the core principles and norms of human rights. The rise in undocumented
migrants and related cases is inseparable from the ineffective enforcement of
regulations governing worker mobility abroad. Second, protecting undocumented
migrant workers is essential to human rights (Siagian et al., 2023). The state is

ISSN (Print) 0854-6509 - ISSN (Online) 2549-4600

Devi Rahayu, et. al.

389

LJIH 32 (2) September-2024, 374-393

responsible for providing employment and assures job-related protection
indiscriminately (Rahayu et al. 2020). The non-discriminatory provision of rights and
protections for both legal and undocumented migrant workers constitutes a basic
human right.
Prior research on migrant worker protection has primarily focused on those
employed through legal channels, with studies on undocumented migrant workers
often limited to the consular responsibilities of Indonesian embassies abroad in
safeguarding their nationals (Alunaza et al. 2022; Riyanto et al. 2023). The study by
Alunaza et al. (2022) explores the management of cases involving undocumented
workers through multi-track diplomacy between the Indonesian and Malaysian
governments and non-governmental organizations (NGOs) operating in border
regions. Similarly, Riyanto et al. (2023) examine the protective measures enacted by the
state, including the establishment of temporary shelters for migrant workers entangled
in legal difficulties. Both studies highlight the diplomatic and institutional dimensions
of migrant worker protection. However, this study diverges by focusing on the role of
legislative frameworks, specifically the Indonesian Migrant Worker Protection Law
and the Human Rights Law, in shaping these protections.
The failure to adequately protect undocumented migrant workers underscores the
need for a comprehensive action plan that thoroughly evaluates the Indonesian
Migrant Worker Protection Law. This evaluation must consider the law's substance,
the understanding of its provisions by relevant parties, and the enforcement of its
stipulations (Vakhoneva et al., 2023). Although norms have been established to protect
migrant workers, they often prove ineffective against real-world challenges, such as
violence, unpaid wages, and exploitation. The limitations on recognition and
protection starkly contrast with the fundamental rights of migrant workers as outlined
in human rights principles. Therefore, a clear distinction must be drawn between
ensuring equitable treatment for migrant workers and the bureaucratic procedures that
govern their placement.
CONCLUSION
This study highlights the neglect of protection for undocumented migrant
workers, which leads to severe consequences such as violence, unpaid wages,
exploitation, and broader complications like human trafficking, deportation, and entry
bans from foreign nations. Notably, the Indonesian Migrant Worker Protection Law
offers protection exclusively to legal migrant workers, a practice that discriminates
against undocumented workers and constitutes a breach of human rights. Emphasising
a human rights perspective is crucial, as it is fundamental to the realisation of citizens’
rights, ensuring equal legal treatment and protection without discrimination in a
constitutional state. Adopting a human rights framework in this analysis has enabled a
critical examination of the deficiencies in protecting undocumented migrant workers.

ISSN (Print) 0854-6509 - ISSN (Online) 2549-4600

Devi Rahayu, et. al

390

LJIH 32 (2) September-2024, 374-393

This paper argues for the necessity of evaluating existing regulations related to migrant
workers, emphasising that such regulations should inherently align with human rights
principles. It advocates for extending basic rights and protections to all migrant
workers, regardless of their legal status, while acknowledging that regulations regarding
the placement of migrant workers can still be differentiated based on conditions,
processes, involved parties, and responsibilities. However, this research is limited by
its focus on a human rights perspective, specifically examining the neglect of
protection for migrant workers through the lens of the Indonesian Migrant Worker
Protection Law and Human Rights Law. This narrow focus restricts the scope of data,
as it overlooks the broader policy context and the practical implementation of policies
to protect migrant workers. Consequently, further research is necessary to explore the
lived experiences of migrant workers as victims of human trafficking and to critically
assess anti-trafficking legislation, with the goal of producing a more comprehensive
and in-depth study.
ACKNOWLEDGMENTS
Gratitude is addressed to LPPM University of Trunojoyo Madura for supporting
and funding this work under the supported international collaboration research grant.
REFERENCES
Abdul Rahim, R., Mohd Zuki, M. A. N., Ab Rahim, M. R., Junaidi, A. A., & Abdul
Mumin, M. S. (2019). Mobiliti Pekerja Migran Tidak Mahir ke Malaysia: Implikasi
Sosial dan Perundangan Negara. Jurnal Undang-Undang Dan Masyarakat, 25, 81–98.
https://doi.org/10.17576/juum-2019-25-10
Ajis, M. N., Askandar, K., & Awang, S. (2015). International migration and human
trafficking in Malaysia: A study on illegal immigrants. Asian Social Science, 11(25),
124–134. https://doi.org/10.5539/ass.v11n25p124
Al-Fatih, S. (2023). Perkembangan Metode Penelitian Hukum di Indonesia - Sholahuddin AlFatih
Google
Buku
(1st
ed.,
Vol.
1).
UMM
Press.
https://books.google.co.id/books/about/Perkembangan_Metode_Penelitian_
Hukum_di.html?id=EObiEAAAQBAJ&redir_esc=y
Al-Fatih, S., Nur, A. I., & Nilasari, N. (2023). Workers Layoffs Caused from the
COVID-19 Pandemic in Indonesia and the European Union. Jurnal Kajian
Pembaruan Hukum, 3(1), 1–26. https://doi.org/10.19184/JKPH.V3I1.33378
Alunaza, H., Cantika, S., Anggara, D. M., Umniyah, A., Anindya, K., Putri, S., &
Manurung, G. N. (2022). Analisis Diplomasi Indonesia-Malaysia Dalam
Menangani Praktek Penyelundupan Pekerja Ilegal Di Perbatasan Aruk
Kalimantan Barat. Journal of International Relations (JoS), 1(1), 1–19.
Bloch, A. (2013). The labour market experiences and strategies of young
undocumented
migrants.
Work,
Employment
and
Society.
https://doi.org/10.1177/0950017012460313
Chuang, J. A. (2010). Achieving Accountability for Migrant Domestic Worker Abuse.
North Carolina Law Review.

ISSN (Print) 0854-6509 - ISSN (Online) 2549-4600

Devi Rahayu, et. al.

391

LJIH 32 (2) September-2024, 374-393

Fudge, J. (2014). Making claims for migrant workers: human rights and citizenship.
Citizenship Studies, 18(1), 29–45. https://doi.org/10.1080/13621025.2014.865894
Guidi, C. F., & Berti, F. (2023). Labor exploitation in the Italian agricultural sector: the
case of vulnerable migrants in Tuscany. Frontiers in Sociology, 8(October), 1–11.
https://doi.org/10.3389/fsoc.2023.1234873
Hidayah, N. P., Komariah, K., Esfandiari, F., & Jaelani, A. K. (2022). Legal Protection
of Indonesian Migrant Workers Affected by Covid-19. Jurnal Cita Hukum.
https://doi.org/10.15408/jch.v10i1.24156
Huhta, K. (2023). Conceptualising Energy Justice in the Context of Human Rights
Law.
Nordic
Journal
of
Human
Rights,
41(4),
378–392.
https://doi.org/10.1080/18918131.2023.2210443
Hutabarat, D. T. H., Fransisca, Z., Ritonga, F., Pardede, D. J., Almas, S., Sikumbang,
N. A., Mutiara, Khoiriyah, A., Hamizah, S., Malahayati, & Suryadi. (2021).
Understanding and Describing Relationship of State Law and Human Right.
Journal Of Humanities, Social Sciences And Business (JHSSB), 1(1), 65–72.
https://doi.org/10.55047/jhssb.v1i1.63
Ikhsanudin, A. (2023). BP2MI Ungkap Beda Data dengan World Bank soal WNI Kerja
di Luar Negeri. Detik.Com.
Kartono, K., Kunarti, S., Hartini, S., Supriyanto, S., & Sintha Dewi, D. A. (2022). Legal
protection of migrant workers and their families: before, during, and after
working. Borobudur Law Review. https://doi.org/10.31603/burrev.6871
Karunia, A. A. (2022). Penegakan Hukum Tindak Pidana Korupsi Di Indonesia Dalam
Perspektif Teori Lawrence M. Friedman. Jurnal Hukum Dan Pembangunan Ekonomi,
10(1), 115.
Kumar, S., & Choudhury, S. (2021). Migrant workers and human rights: A critical study
on India’s COVID-19 lockdown policy. Social Sciences and Humanities Open, 3(1),
100130. https://doi.org/10.1016/j.ssaho.2021.100130
Luo, S., Gadd, D., & Broad, R. (2023). The criminalisation and exploitation of irregular
Chinese migrant workers in the United Kingdom. European Journal of Criminology,
20(3), 1016–1036. https://doi.org/10.1177/14773708221132889
Machin, H. E., & Shardlow, S. M. (2022). The Construction of Character in Social
Work Narratives of Practice with Undocumented Migrants. The British Journal of
Social Work, 52(8), 5045–5065. https://doi.org/10.1093/bjsw/bcac105
Maksum, A. (2021). Indonesian post-migrant workers: A challenging problem for
human security. Social Sciences and Humanities Open, 4(1), 100223.
https://doi.org/10.1016/j.ssaho.2021.100223
Negrón-Gonzales, G. (2023). Educating the “illegal”: Life and learning as both
undocumented student and undocumented migrant worker. Latino Studies, 21(2),
188–210. https://doi.org/10.1057/s41276-022-00406-y
Noll, G. (2010). Why human rights fail to protect undocumented migrants. European
Journal of Migration and Law. https://doi.org/10.1163/157181610X496894
Nur, M., Asmorojati, A. W., Megawati, Zuliyah, S., & Isdiyanto, I. Y. (2023). A
comparative assessment of digital platform worker protection in the EU and
ASEAN.
Legality :
Jurnal
Ilmiah
Hukum,
31(2),
367–391.
https://doi.org/10.22219/LJIH.V31I2.29823
Pelu, I. E. A. S., Asfia, H., Tarantang, J., & Supriadi, A. (2022). Sex Recession
Phenomenon from the Perspective Maqashid Sharia Based on Objectives

ISSN (Print) 0854-6509 - ISSN (Online) 2549-4600

Devi Rahayu, et. al

392

LJIH 32 (2) September-2024, 374-393

Marriage Law in Indonesia. Al-Istinbath : Jurnal Hukum Islam, 7(1), 39.
https://doi.org/10.29240/jhi.v7i1.4204
Putra, I. K. O. D., & Runturambi, A. J. S. (2022). Pelaku Penyelundupan Yang
Terorganisir Menjadi Faktor Penentu Dalam Praktik Keluar / Masuknya Pekerja
Migran Indonesia Secara Ilegal. Jurnal Ilmiah Indonesia, 7(3), 1282–1290.
Rahayu Devi, Ningwahyu Susilaningtyas, N. N. (2020). Menakar Peran dan Tantangan
Pemerintah Daerah Dalam Perlindungan Hukum Pada Pekerja Migran Indonesia.
Rechtidee, 15(2), 245–272.
Riyanto Benny, Martuti nana, Hidayah Isti, F. Y. (2023). Pendampingan Hukum bagi
Tenaga Migran Indonesia di Tempat Singgah Sementara KJRI Johor Bahru. Jurnal
Puruhita, 5(2), 1–7.
Rogozhina, N. (2020). Intra-Regional Migration of Labor Resources in Southeast Asia.
World
Economy
and
International
Relations,
64(3),
111–119.
https://doi.org/10.20542/0131-2227-2020-64-3-111-119
Rustam, I., Sabilla, K. R., Rizki, K., & Estriani, H. N. (2022). Kejahatan Lintas Negara
Perdagangan Orang: Studi Kasus Pekerja Migran Asal Nusa Tenggara Barat.
Indonesian Perspective, 7(1), 102–107. https://doi.org/10.14710/ip.v7i1.48597
Sharma, M., & Lalit, M. (2020). Social Protection of Women Migrants amidst COVID19: Can Social Protection contribute to Social Inclusion. International Journal of
Legal Science and Innovation.
Siagian, P., Tahir, M., & Damayanti, A. (2023). J urisprudentie Criminological Phenomenon
of Illegal Placement of Indonesian Migrant Workers in Sanggau Regency. 10(1), 1–11.
https://doi.org/10.24252/jurisprudentie
Suwarti, Khunmay, D., & Abannokovya, S. (2022). Conflicts Occurring Due to the
Application of Different Legal Inheritance Systems in Indonesia. Legality: Jurnal
Ilmiah Hukum, 30(2), 214–227. https://doi.org/10.22219/ljih.v30i2.21020
Suyanto, B., Sugihartati, R., Sutinah, & Hidayat, M. (2020). Bargaining the Future: a
Descriptive Study of the Lives of the Indonesian Illegal Migrant Workers. Journal
of
International
Migration
and
Integration,
21(1),
185–204.
https://doi.org/10.1007/s12134-019-00710-y
Theddy, Sirait, N. N., Agusmidah, & Rosmalinda. (2022). Legal Protection of
International Labor Organization (ILO) and Indonesia Towards Indonesia Illegal
Migrant Workers. Proceedings of the Second International Conference on Public Policy, Social
Computing and Development (ICOPOSDEV 2021), 642(Icoposdev 2021), 159–164.
https://doi.org/10.2991/assehr.k.220204.026
Vakhoneva, T. M., Mykolayets, D. A., Hryshyna, Y. M., Yurovska, V. V., &
Dyachenko, O. A. (2023). Legal challenges to the protection of labor rights of
refugees in the digital age. Legality : Jurnal Ilmiah Hukum, 31(2), 245–265.
https://doi.org/10.22219/ljih.v31i2.26576
Wilkinson, M. (2012). Out of sight, out of mind: The exploitation of migrant workers
in 21st-century Britain. Journal of Poverty and Social Justice.
https://doi.org/10.1332/175982712X626734
Wilkinson, M., & Craig, G. (2012). Wilful negligence: Migration policy, migrants’ work
and the absence of social protection in the UK. In Migration and Welfare in the new
Europe:
Social
Protection
and
the
Challenges
of
Integration.
https://doi.org/10.56687/9781847429377-014
Zanfrini, L. (2022). From slaves to key workers? How the Covid-19 pandemic

ISSN (Print) 0854-6509 - ISSN (Online) 2549-4600

Devi Rahayu, et. al.

393

LJIH 32 (2) September-2024, 374-393

questions the sustainability of the Italian model of migrants’ integration. Rassegna
Italiana Di Sociologia. https://doi.org/10.1423/103329

ISSN (Print) 0854-6509 - ISSN (Online) 2549-4600