The Japanese Parliament (Diet) revised the Immigration Control and Refugee Recognition Act in June 2023. The Ministry of Justice argues that the revisions address "concerns of system misuse without compromising protection for genuine asylum seekers." It adds that "some applicants exploit the process to extend their stay in Japan for reasons unrelated to immediate danger or persecution."
The revisions, originally proposed in 2021, were criticized by Japanese non-governmental organizations, the Japan Federation of Bar Associations, and some Japanese newspapers. United Nations experts have also urged the Japanese government to address issues that were related to the revisions such as detention of refugee status applicants.
The criticisms mainly stress the failure of Japan to adhere to international humanitarian law on asylum and recognition of refugees.[1]
Strict Refugee Application Processing
One criticism is about the fairness of the system for processing refugee status applications.
The Japan Association for Refugees has described the refugee status determination system in Japan as "organized in a way that makes it difficult to pursue refugee protection" with such issues involving "lack of independence, expertise and transparency in the determination process and asylum procedure."[2]
The Immigration Bureau has counselors who process these applications.[3] It has been noted that among the "111 such counselors, [...] just one of them, a nonprofit refugee support group manager, has been involved in handling 1/4 of all appeal cases heard by the counselors last year."[4] There are suspicions that the Immigration Bureau arbitrarily gave one panel more cases to handle than the others that resulted in higher rate of denial of refugee status applications in 2022.[5]
According to one newspaper report,[6]
there has been only one case of refugee recognition among Kurds of Turkish nationality who, fearing persecution at home, have fled to Japan. A majority of Myanmar people who cannot return to their country ruled by the oppressive military regime and who remain in Japan have not been granted asylum.
To restrict refugee status applicants without correcting these situations could result in forcing those who should be protected back to high-risk places.
Japan's "strict requirements" in processing refugee applications led to "only about 1% of applicants being recognized as refugees." This low recognition rate is justified as resulting from the high number of "fake" refugee applications. [7] But this low rate of approval of refugee application has been the norm for decades.[8]
It has been observed that the "important thing is to be able to recognize those in real need of protection on their first application" but this requires a "guarantee that Japan's screening process will improve." [9]
Before the law revision was enacted, the Ministry of Justice released in March 2023 new guidelines on processing refugee applications "with the intention of increasing transparency and promoting confidence in the system." [10] The new guidelines include sexual minorities as "members of particular social groups,' which covers the basis of persecution under the refugee convention." This includes "LGBTQ individuals in countries with laws that punish homosexuality, women who are subjected to forced marriages and women who undergo forced female genital mutilation."
But the "Japan Lawyers Network for Refugees highlighted how these guidelines do not guarantee an increase in refugees being accepted into Japan and said the scope of what counts as 'persecution' remains narrow." And to qualify for[11] having a 'well-founded fear of persecution,' guidelines necessitate 'realistic' forms of persecution, based on the specific circumstances of each case. International standards, however, do not necessarily require the existence of such specific circumstances.
Revisions
The 2023 revisions consist of several provisions affecting non-Japanese residents who lost the permission to stay in Japan and those applying for refugee status.
"Enforced repatriation"
A new provision in the law states that non-Japanese residents who failed to leave Japan, after being ordered to leave the country, would be subject to "enforced deportation."
This applies to non-Japanese residents who no longer have permission to reside in Japan (or who "overstayed" their visa). It also applies to those whose refugee status applications were denied and were ordered to leave Japan.
This revision was supposed to "end the extended detention in immigration facilities of foreign nationals who do not comply with deportation orders issued for overstaying and other reasons."[12]
Those who applied for refugee status twice and twice denied would be subject to enforced deportation if in their third application they "fail to show why they should be granted refugee status."[13] This "effectively limit[s] refugee status applications to two per person."[14] The Japan Federation of Democratic Medical Institutions considers this new provision "unacceptable from a humanitarian point of view."[15]
In 2021, the United Nations Special Rapporteur on human rights of migrants; the Working Groups on Arbitrary Detention; the Special Rapporteur on freedom of religion or belief and Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, commented on the issue of "lifting of automatic suspension of the deportation procedure, including the execution of deportation itself, for individuals who have applied for refugee recognition for a third time or more": [16]
While it is advisable to accelerate the processing of subsequent applications, we are concerned that in the absence of any appropriate procedural safeguards that explicitly require individual assessment on the circumstances and protection needs prior to deportation, lifting automatic suspension of deportation procedures for asylum seekers of the above-mentioned categories may entail high risk of refoulement. We are concerned that individuals in need of international protection may be forcibly returned or expelled to a country or territories where their lives or rights would be threatened on account of race, religion, nationality, membership of a particular social group, political opinion, etc.
The principle of non-refoulement is found in Article 33 of the 1951 Convention Relating to the Status of Refugees.[17]
"Supervisory measures"
The 2023 revisions introduce the system of "supervisory measures" that allow refugee status applicants to "live outside immigration facilities before being deported, on condition that they are supervised by supporters or others approved by the agency."[18]
This system is meant to "prevent individuals from fleeing and committing crimes while under supervision, while also taking into consideration privacy protection issues and human rights-related concerns."[19]
But who would be willing to assume this responsibility? A newspaper report states that "some 90% of refugee and immigrant supporters said they either couldn't or didn't want to assume the supervisory role ... because they will be required to report to the immigration agency and will have to monitor those people." [20]
The "supervisory measures" are also meant to "prevent long-term detention,"[21] which had been allowed under the law prior to the 2023 revisions.[22]
This revision was viewed as continuing to "presume detention for those without resident status." [23] The United Nations Working Group on Arbitrary Detention has declared in 2018 that "deprivation of liberty of an asylum-seeking, refugee, stateless or migrant child, including unaccompanied or separated children, is prohibited."[24] It further declared that[25]
Any form of administrative detention or custody in the context of migration must be applied as an exceptional measure of last resort, for the shortest period and only if justified by a legitimate purpose, such as documenting entry and recording claims or initial verification of identity if in doubt.
The maltreatment of Wishma Sandamali at the detention cell of the Nagoya Regional Immigration Services Bureau, and who died without proper medical treatment on 6 March 2021, is a symbol of the problem of detention of people who were denied permission to stay in Japan. Wishma, who overstayed her visa, sought police protection after she was physically abused by a male companion. The police, instead of addressing the domestic violence complaint, turned her over to the immigration bureau which detained her until she died while in detention.
"Complementary protection"
Another revision is the new system called "complementary protection" which would benefit the "war evacuees and others accepted based on a status equivalent to refugees."[26] These "quasi-displaced persons,"[27] or "individuals from conflict-affected regions [would have] quasi-refugee status to allow them to remain in Japan even if they do not meet the criteria for refugees." [28] Ukranians and Syrians who fled their country would benefit from this new system.
However, there is an observation that a strict enforcement of this new system would exclude many people. [29]
New Penalty
A new penalty is now provided for violation of a deportation order by "an individual, who is deemed likely to obstruct deportation process considering their past behavior."[30] This new penalty would affect "overstaying" non-Japanese who have valid reasons for their "overstay" such as lack of family in home country, age of minority, being born and raised in Japan (and thus would have difficulty adjusting to their "home" country) and escaping from poor working environments [for technical intern trainees].[31]
Improving the Immigration System
There have been proposals on how to improve the Japanese immigration system coming from many institutions in Japan and abroad. The "requested amendments" of the law by the Japan Federation of Democratic Medical Institutions largely represent the proposals made:[32]
1) Include judicial review for immigration detention
2) Establish a refugee recognition body independent of the immigration bureaus to properly determine refugee status (The determination process should be in accordance with the principle "a doubtful point should be interpreted in favor of applicants [gray interest]" based on a handbook on refugee status criteria.)
3) Change indefinite detention, recognized by the UN as torture, to the minimum necessary duration
4) Adhere to the Principle of Non-refoulement and stop deportations that are in violation of international human rights law
5) Stop penalizing undocumented immigrants who do not agree with repatriation.
The 2023 revisions to the Immigration Control and Refugee Recognition Act have serious adverse impact on asylum seekers, refugee status applicants and non-Japanese who lost permission to stay in Japan. These proposals deserve serious consideration.
Jefferson R. Plantilla is a Researcher at HURIGHTS OSAKA.
For further information, please contact HURIGHTS OSAKA.
[1] Japan acceded to the 1951 Convention Relating to the Status of Refugees on 3 October 1981, and to the 1967 Protocol Relating to the Status of Refugees on 1 January 1982. See United Nations High Commissioner for Refugees, www.unhcr.org/about-unhcr/who-we-are/1951-refugee-convention. See website page on refugees of the Ministry of Foreign Affairs of Japan for more information on history of policy on refugees, www.mofa.go.jp/policy/refugee/japan.html.
[2] Japan Association for Refugees, Comment on the Cabinet Approval of the "Proposed Bill for the Partial Revision of the Immigration Control and Refugee Recognition Act", 7 March 2023, (Updated: 2023.5.18), www.refugee.or.jp/for_refugees/info/2023/04/imlaw23comment_en/.
[3] Known as refugee examination counselor (nanmin sanyoin seido) system, established by the 2004 revision of the Immigration Control and Refugee Recognition Law, INTERVIEW OF PROFESSOR SABURO TAKIZAWA, CDR Quarterly, Vol.1, September 2010,page 101, https://cdr.c.u-tokyo.ac.jp/Interviews/ST.pdf.
[4] Japan's revised immigration law undermines human rights protection principle, Editorial, Mainichi Japan, https://mainichi.jp/english/articles/20230610/p2a/00m/0op/009000c.
[5] Mainichi Japan, ibid.
[6] Mainichi Japan, ibid.
[7] See Saburo Takizawa, "Japan's Refugee Policy; Issues and Outlook," Japan Institute of International Affairs, www2.jiia.or.jp/en/pdf/digital_library/peace/Saburo_Takizawa-Japan_s_Refugee_Policy_Issues_and_Outlook.pdf.
[8] Takizawa, ibid.
[9] Sayumi Take, Japan passes immigration reform bill: 4 things to know, Nikkei Asia, https://asia.nikkei.com/Spotlight/Japan-immigration/Japan-passes-immigration-reform-bill-4-things-to-know.
[10] Kathleen Benoza, Japan releases nation's first guidelines for refugee status eligibility, Japan Times, 24 March 2023, www.japantimes.co.jp/news/2023/03/24/national/refugee-status-eligibility-guidelines/.
[11] Benoza, ibid.
[12] KYODO NEWS, Japan lower house passes controversial revision of immigration law, 9 May 2023, https://english.kyodonews.net/news/2023/05/b35afd031388-japan-lower-house-passes-controversial-revision-of-immigration-law.html.
[13] KYODO News, ibid.
[14] Mainichi Japan, op. cit.
[15] MIN-IREN, April 18, 2023 Prime Minister Fumio Kishida, Justice Minister Ken Saito, Health, Labor, Welfare Minister Katsunobu Kato, www.min-iren.gr.jp/?p=47990.
[16] Mandates of the Special Rapporteur on human rights of migrants; the Working Group on Arbitrary Detention; the Special Rapporteur on freedom of religion or belief and Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, OL JPN 3/2021, 31 March 2021, www.ohchr.org/sites/default/files/Documents/Issues/SRMigrants/Comments/OL-JPN31-03-21.pdf.
[17] Article 33
Prohibition of Expulsion or Return ("Refoulement")
See UNHCR, www.unhcr.org/media/convention-and-protocol-relating-status-refugees.
[18] Shinsuke Uemura and Ryowa Kashiwabara, Japan's Revised Immigration Law Aims to Prevent Abuse of Refugee Application System, Yomiuri Shimbun, Japan News, https://japannews.yomiuri.co.jp/politics/politics-government/20230611-115429/; KYODO NEWS, op. cit.
[19] Uemura and Kashiwabara, ibid.
[20] Mainichi Japan, op. cit.
[21] KYODO NEWS, op. cit.
[22] The United Nations has issued an opinion on this detention issue:
In its opinion No. 2020/58, the Working Group considered that, "de facto, the Immigration Control and Refugee Recognition Act allows for indefinite immigration detention which is arbitrary as it cannot be reconciled with the obligations of Japan under article 9 (1) of the Covenant (ICCPR)" (A/HRC/WGAD/2020/58).
See Mandates of the Special Rapporteur on human rights of migrants; the Working Group on Arbitrary Detention; the Special Rapporteur on freedom of religion or belief and Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, op. cit.
[23] Uemura and Kashiwabara, op. cit. See also Mandates of the Special Rapporteur on human rights of migrants; the Working Group on Arbitrary Detention; the Special Rapporteur on freedom of religion or belief and Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, ibid.
[24] Working Group on Arbitrary Detention, Revised Deliberation No. 5 on deprivation of liberty of migrants, 7 February 2018, www.ohchr.org/sites/default/files/Documents/Issues/Detention/RevisedDeliberation_AdvanceEditedVersion.pdf.
[25] Working Group on Arbitrary Detention, ibid.
[26] Mainichi Japan, ibid.
[27] Uemura and Kashiwabara, op. cit.
[28] Mainichi Japan, ibid.
[29] Mainichi Japan, ibid.
[30] Mainichi Japan, ibid.
[31] Mainichi Japan, ibid.
[32] MIN-IREN, op. cit.