During the current ordinary session of the Diet, the Japanese government plans to revise the Immigration Control and Refugee Recognition Act in order to prevent the long-term detention of foreign nationals. To this end, a cabinet decision to revise the legislation was made on February 19, 2021.
The revision of the legislation was influenced by domestic and international criticism against Japan’s immigration and refugee policy. In September 2020, the United Nations Human Rights Council Working Group on Arbitrary Detention issued a report of opinions that the long-term detention of asylum seekers in Japan should be improved in accordance with the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Indeed, quite a few foreign nationals have repeatedly applied for refugee status so that they could stay in Japan during the multiple recognition processes, causing lengthy detentions.
In order to rectify the system, the Japanese government decided to limit the number of times one can apply for refugee status. In theory, such a measure would shorten detention period and facilitate earlier deportation. Moreover, the new legislation could enable detainees to live outside of a detention center under supervision of an authorized individual or organization. Notably, the legislation would allow those who cannot return their home countries, due to conflicts, to stay in Japan, which is a meaningful change.
On the other hand, it was reported that the government-drafted legislation contains a number of controversial provisions, too. For instance, the legislation would enable the government to deport detainees after a third application, unless proper reasons and evidence for refugee status are provided. Moreover, the authorities will be allowed to levy criminal penalties on those who refuse deportation orders. Although the revised legislation would allow detainees to live outside of detention centers under supervision, those who flee would be legally punished by penalties, such as an imprisonment of up to one year, a maximum fine of 200,000 yen ($1,900), or both. Thus, the content of the revised legislation demonstrates that Japan’s immigration and refugee policy could remain strict.
The refugee recognition rate in Japan has been less than 1 percent, due to the thorough screening process.
The history of Japan’s immigration and refugee policy dates back to the 1917 Russian Revolution. At that time, asylum seekers from Russia fled to Japan. The Empire of Japan did not recognize them as refugees, but many, including Fyodor Morozoff, were allowed to stay in Japan. At the end of the 1930s, many Jewish people being persecuted in Europe by Nazi Germany sought escape. Jewish asylum seekers fled to Japan with transit visas issued by a Japanese diplomat, Sugihara Chiune, but they were not given refugee status upon arriving in Japan. After the end of World War II, the United Nations Convention Relating to the Status of Refugees (the Refugee Convention) was adopted in July 1951. The Japanese government enacted its Immigration Control and Refugee Recognition Act in October that same year. In 1967, the Protocol Relating to the Status of Refugees (Refugee Protocol) entered into force.
In 1975, Vietnamese asylum seekers arrived in Japan, and in 1978, the Japanese government formulated its refugee policy to accept refugees from Vietnam, Laos, and Cambodia. In 1981, the Japanese government signed the 1951 Refugee Convention as well as the 1967 Refugee Protocol, and revised its domestic legislation. In 2002, it was broadcasted on TV that North Koreans had sought asylum in the Japanese Consulate General in Shenyang, but their attempt ended in failure. In 2004, the Immigration Control and Refugee Recognition Act was revised, and a provisional stay system and panel of refugee examination councilors was introduced in Japan. In 2010, the Japanese government initiated its third country resettlement (refugee resettlement) program, although its contribution is considerably limited. In 2016, then-Prime Minister Abe Shinzo announced a plan that the government would accept Syrians as students in Japan. In academia, some experts have suggested Japan’s future identity as a “migration state,” predicting the emergence of a reformed national immigration policy.
A shift in Japan’s immigration policy did occur under the Abe administration. In April 2019, the government decided to accept low-skilled and semi-skilled foreign workers under a specified skills visa program as a measure against labor shortages in Japan. In the program, some specified skilled workers (Category I) are allowed to stay and work in Japan for up to five years unaccompanied by their family members, and other specified skilled workers (Category II) are able to extend the duration of their stay in Japan. Under the amended legislation, the government planned to accept 345,000 foreign workers in five years. This was regarded as a critical policy shift in Japan’s immigration policy, yet some Japanese people were worried about the deterioration of social order as well as an increase in crime rate due to the influx of immigrants. Abe explained that “it was not an immigration policy that has everyone so worried,” and the acceptance of specified skilled workers remains limited. As a recent public opinion survey indicates, the Japanese public has mixed feelings toward the government’s policy on permanent residency for foreign nationals.
Non-Japanese nationals who overstayed their visas in Japan and receive a deportation order are supposed to leave Japan or to be sent to a detention center. It has been reported that most foreign nationals who receive deportation orders do leave Japan, but those who have family in Japan and those who fear that their safety would be threatened in their home countries refuse to be deported. In such cases, the duration of detention tends to be prolonged, causing inhumane situations in detention centers.
In June 2019, a Nigerian man passed away in a detention center in Nagasaki prefecture as a result of a hunger strike to protest against his lengthy detention of more than three years. The Nigerian man received a deportation order after serving time in a prison for a criminal offense. He asked for provisional release, claiming that he had right to stay in Japan as he had married a Japanese women, although the marriage ended in divorce, and had children. The death of the Nigerian man caused domestic and international criticism against the lengthy detention and the monitoring system in Japan.
The coronavirus pandemic has further aggravated the health conditions of detention centers in Japan. In April 2020, the Japan Federation of Bar Associations issued a statement calling for the prompt release of detainees to prevent the spread of infection. The detention facilities released more than half of their detainees as a measure against the spread of the coronavirus, but in August 2020, a detainee at the Tokyo Regional Immigration Services Bureau located in Tokyo’s Minato Ward tested positive for COVID-19. In March 2021, it came to light that more than 50 detainees at a detention center in Shinagawa in Tokyo tested positive for the virus, which can be regarded as a cluster infection. The Suga government therefore needs to take the influence of the COVID-19 pandemic in detention centers into deeper consideration.
In comparison with other countries, the refugee acceptance rate in Japan is one of the lowest. In 2019, Japan recognized only 44 foreign nationals as refugees (0.4 percent of all applicants), whereas the United States accepted 44,614 refugees (29.6 percent) and Germany accepted 53,973 refugees (25.9 percent). Globally speaking, as a host nation of the Tokyo Olympics and Paralympics, the international community is becoming more and more interested in Japan’s immigration and refugee policy as well as its policy toward human rights.
In order to protect human rights of foreign nationals in Japan, it is essential for Japanese politicians and bureaucrats to remember and respect the Constitution of Japan as well as international law. Article 97 of the constitution stipulates: “The fundamental human rights by this Constitution guaranteed to the people of Japan are fruits of the age-old struggle of man to be free.” Furthermore, Article 14 of the Universal Declaration of Human Rights reads: “Everyone has the right to seek and to enjoy in other countries asylum from persecution.” In the name of the supreme law of the nation, Japan is expected to change its immigration and refugee policy for the better and to faithfully observe the related international human rights law, especially the principle of non-refoulement, which guarantees “no one should be returned to a country where they would face torture, cruel, inhumane, or degrading treatment or punishment and other irreparable harm.”