Keywords

Introduction

Being one of the biggest donors to the United Nations High Commissioner for Refugees (henceforth, UNHCR) over the years, Japan is considered to have made significant financial contribution to supporting refugees, despite accepting very few refugees to its territory as a host country (Betts & Collier, 2017, p. 208). Nevertheless, the exceptionally low refugee recognition rates in Japan have been criticised for not conforming to international norms of refugee protection (Wolman, 2015), and its restrictive immigration and refugee policies, based on nationalism and ethnic discrimination against foreign nationals, can be linked to many incidents in the immigration administration, such as long-term detention of asylum seekers, hunger strikes, the death of immigration detainees, and the suicide of international students (Onozuka, 2022, pp. 255–256).

Although Japan has acceded to the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol, the Japanese government has not regarded refugee protection as an important human rights issue until recently. The domestic law regulating the entry and residence of immigrants and refugees in Japan, namely the Immigration Control and Refugee Recognition Act (henceforth, ICRRA), provides a strict legal procedure for asylum seekers to obtain refugee status under a narrow interpretation of the definition of refugee. As a result, the law and its implementation have brought about an extremely low refugee acceptance as well as other problems in Japan’s refugee recognition process. Additionally, a lack of safeguard for asylum seekers from the judicial system can also be counted as a reason for Japan’s inadequate contribution to refugee acceptance and protection within its territory. As the Japanese Supreme Court and inferior courts following the precedent set by the Supreme Court have wrongly ruled on the constitutional guarantees of foreigners’ fundamental human rights,Footnote 1 the judicial system helps to justify governmental negativism about necessary accommodations for refugees and asylum seekers.

This chapter firstly analyses human rights violations or possible violations in the Japanese refugee recognition procedure, through an examination of ICRRA’s existing provisions relating to refugee applications, and explains the legal basis for Japan’s negative immigration and refugee policies, especially the judgment and reasoning of the Supreme Court in McLean v. Minister of Justice (henceforth, McLean Case), which should be deemed highly outdated in light of the development of international human rights law. This chapter will then explore recent efforts and progress in Japan’s legislation and judicial practice, including two government proposals for revising ICRRA in 2021 and 2023, and a remarkable judicial decision made by Tokyo High Court in September 2021. It can be argued, however, that these recent developments do not drastically improve the situation of refugee acceptance and protection in Japan because some of them are not essentially aimed at providing better safeguard to asylum seekers. Finally, based on the above findings, this chapter will conclude with a brief evaluation of the amendments to ICRRA which were eventually enacted in June 2023, in order to highlight the remaining tasks and challenges for Japan to help it construct a more inclusive immigration and refugee system.

Current Refugee Recognition Procedure and Human Rights Concerns Under ICRRA

After Japan’s accession to the Refugee Convention and the related Protocol, the former Immigration Control Order was amended to allow accommodation for refugees and was renamed as ICRRA in 1982 (Buschmann, 2021, p. 81). The current version of ICRRA, which has undergone two main revisions, in 1990 and 2018, stipulates the competence of the Minister of Justice to grant refugee status and the basic structure of the refugee recognition procedure in Chapter 7.2 (from art. 61-2 to art. 61-2-14).Footnote 2

In accordance with the provisions of ICRRA, asylum seekers need to go through a hard and lengthy application for refugee recognition to acquire the refugee status and a long-term resident visa in Japan. Specifically, those who seek refugee recognition must make an application to the Minister of Justice (art. 61-2) and submit documents or materials to prove that they are refugees at the time of application. The Minister of Justice will determine whether or not to grant refugee status based on the facts in the submitted documents and materials. If necessary, an investigation of the facts may be conducted by a refugee investigator at the request of the Minister of Justice (art. 61-2-14). When the applicant is recognised as a refugee, a refugee recognition certificate will be issued (art. 61-2, para. 2) and the various rights and benefits stipulated in the Refugee Convention will be conferred, including a long-term resident visa (art. 61-2-2). When the refugee application is rejected, however, a written statement with the reasons for the inadmissibility will be issued (art. 61-2, para. 2). If the applicant is dissatisfied with the decision, they may request a review by the Minister of Justice (art. 61-2-9, para. 1) within seven days of receiving the statement, which is different from the common provision for the period for requesting a review in the Administrative Complaint Review Act (according to art. 18, para. 1 of this Act, a request for review of a disposition should be filed within three months of the day following the day when the party became aware of the disposition). The applicant can also file an action challenging the final decision of the Minister of Justice afterwards. The waiting time from refugee application to final decision following the review request tends to be several years. For instance, according to the data from the Immigration Services Agency of Japan (henceforth, ISA), it was about three years and eleven months on average in 2022 (ISA, 2023b, p. 6). The time can be even longer if a lawsuit comes after the final decision.

Since ICRRA simply uses the terminology in the Refugee Convention and Protocol without giving any specific definition of refugee (art. 2), the interpretation of refugee in practice becomes an essential part of the refugee recognition process. From a legal and practical perspective, several problems can be observed in the currently adopted interpretation of the word refugee in Japan. Firstly, due to the individual-based examination of the refugee application, asylum seekers have to provide sufficient evidence to show the risk of being persecuted personally, not simply a collective fear of persecution. It is also necessary for them to have a realistic risk of being persecuted rather than an abstract one, though facts of actually being persecuted at the time of application are not required. Whether there is a realistic risk will be determined based on the specific circumstances of each individual applicant (ISA Guide, 2023a, p. 4). Obviously, these requirements narrow down the range of people who can be recognised as refugees to a great extent. Secondly, the meaning of persecution tends to be interpreted in a limited way. In the practice of refugee status determination, the persecution is usually understood as “an infringement or oppression of life or physical liberty by an attack or coercion that causes unbearable suffering to an ordinary person”,Footnote 3 which means that serious violations of human rights other than the threats to life and physical liberty, such as forced labour, denial of religious freedom, and deprivation of education and employment opportunities, may not have been given proper consideration in the judgment about whether a well-founded fear of persecution exists. Thirdly, while there is an alternative measure for granting special permission for residence out of humanitarian considerations to asylum seekers who have failed to obtain the refugee status,Footnote 4 the practice of this special permission has possibly obscured the real need of asylum seekers to have the more stable and reliable protection that comes with refugee status. Indeed, those who are granted the special permission for residence under humanitarian protection will be protected from refoulement and will receive certain benefits, such as access to work, health care, and free primary education. However, they are not eligible to receive settlement support, public housing assistance, publicly funded language training, or financial aid for secondary and post-secondary education, nor are they able to bring family members to Japan, in contrast to the benefits and services available for refugee status holders (Obi, 2013, pp. 14–15). The legal status granted is also considered to be too precarious for asylum seekers to live settled and secure lives in Japan, because the residence permit in this situation is a short-term one and needs to be renewed at least annually. In addition, the grants of special permission for residence are highly discretionary in the immigration administration (Arakaki, 2008, p. 101). Even though a guideline released by ISA has listed some positive and negative factors in the determination of the special permission (ISA Guide, 2009), it is not binding on the Minister of Justice. These facts have indicated the necessity of granting refugee status more generously to those who really need it rather than merely offering low-level humanitarian protection, as well as the importance of providing a more comprehensible and effective guide to distinguish humanitarian protection from refugee status when applied in practice. It has been argued that legislators should make clear the standards or requirements of special permission for residence in law instead of allowing the administrative power to set its own rules (Kondo, 2023, p. 249).

Furthermore, the burden of proof on asylum seekers in litigations relating to refugee status determination seems to be problematic as well. When a refugee application is rejected, the asylum seeker receiving the disposition of non-recognition may file an action in the court to seek revocation of the disposition, to confirm the invalidity of not granting special permission for residence when refugee status itself is denied, or to confirm the invalidity of the written deportation order by immigration authorities (Kawamura, 2022, p. 66). Nonetheless, it is by no means easy to obtain judicial remedies due to the strict requirements for asylum seekers regarding the burden of proof. There is a general understanding in Japan’s practice that, in order to be identified as a person having a well-founded fear of being persecuted, there need to be objective circumstances that would cause an ordinary person in the same position to have a similar fear of persecution, in addition to subjective circumstances that the person is feeling the fear of being persecuted (ISA Guide, 2023a, p. 4). Consequently, even in the court, asylum seekers are expected to submit objective evidence as much as possible, in which both their personal conditions and the situation of their countries of origin are supposed to be included, to fully prove the risk of persecution. In other words, asylum seekers need to prove a realistic risk of persecution as they do in the refugee application, with objective evidence that shows the absence of possible solutions to avoid persecution in the country of origin. The reasons why asylum seekers should take the primary responsibility for proving the risk of being persecuted are often suggested as follows: (1) the legal system requires the asylum seeker to submit documents at the moment of the refugee application; (2) due to the nature of the matter, the asylum seeker who has directly experienced the fear is in the best position to know the circumstances needed for determining refugee status; (3) refugee status is a beneficiary disposition that confers favourable legal status on the asylum seeker, such as the status of long-term resident (Bando, 2018, p. 199).

Certainly, asylum seekers should bear the burden of proof in the refugee application as the UNHCR has already prescribed (“It is a general legal principle that the burden of proof lies on the person submitting a claim” (UNHCR Handbook, 2019, p. 43)). On the other hand, whether this principle can be basically valid in the case of litigation as well is highly questionable. Refugees forced to flee their countries because of persecution often do not have sufficient materials to prove their sufferings. Besides, even if they can prove their personal conditions regarding the risk of persecution, they may not have the ability to collect enough objective evidence showing the situation of their countries of origin, or to present the evidence completely and perfectly in Japanese. In light of these circumstances, it is inappropriate to impose the burden of proof wholly on asylum seekers. For the same reason, the UNHCR has suggested that “in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application”, and even if such independent research turns out to be unsuccessful, or there are statements that are not susceptible of proof, “if the applicant’s account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt” (UNHCR Handbook, 2019, p. 43). Thus, at the very least, judges in charge of refugee recognition cases should pay attention to the sharing of burden of proof between asylum seekers and the government, acknowledging that the government is liable for investigating and collecting evidence as well, particularly, the evidence concerning the situation of asylum seekers’ countries of origin.

Apart from the enormous difficulties in the refugee application procedure, the current legal framework contains other serious human rights concerns that must be dealt with in earnest, such as the lack of public assistance for refugee applicants and insufficient medical assistance for those granted a provisional release from detention (Kan, 2022). One of the most critical issues relating to human rights is the detention of asylum seekers during the refugee application. Asylum seekers who have come to Japan and are in the process of applying for refugee status fall into “refugees unlawfully in the country of refuge” who are conferred certain rights under the Refugee Convention (art. 31 to art. 33), including the freedom of movement. Accordingly, ICRRA has introduced some specific measures, such as special permission for residence (art. 61-2-2, para. 2), permission for provisional stay (art. 61-2-4), and suspension of deportation procedure (art. 61-2-6, para. 2) for the purpose of implementing the Convention. Nevertheless, it is a prevailing rule in Japan that foreign nationals without legal status of residence will, in principle, be detained until the deportation starts or until they obtain a legal status (Kan, 2022, p. 120).

In fact, ICRRA has no provisions on detention specific to refugees. It lists a number of illicit acts that would bring about a deportation order (art. 24) and stipulates that anyone who is suspected of having committed one of the said acts, including unlawful stay or residence, may be detained by a written detention order from the immigration authorities (art. 39). There is a big question about juxtaposing the unlawful stay of asylum seekers with serious crimes in the same provision regarding detention. In August 2020, the UN Working Group on Arbitrary Detention adopted an opinion to express concerns about two asylum seekers’ long-term and repeated detention in Higashi-Nihon Immigration Detention Centre (Opinion 58/2020, WGAD). The opinion stated that seeking asylum is not a criminal act but is a universal human right enshrined in art. 14 of the Universal Declaration of Human Rights. Therefore, the deprivation of liberty in the immigration context must be a measure of last resort and alternatives to detention must be sought to meet the requirement of proportionality. In light of this point, the rules of ICRRA allowing for indefinite immigration detention could not be reconciled with the international norms, and the repeated detention of the relevant asylum seekers under ICRRA should be deemed arbitrary. The opinion, as a result, requested the Japanese government to take necessary measures to remedy the situation of the two asylum seekers without any delay, and urged the government to review ICRRA so as to ensure its compatibility with those obligations Japan has undertaken under the international law (Opinion 58/2020, WGAD, pp. 13–16).

Due to the low refugee recognition rate and the unlimited chance of making refugee applications in Japan, there tends to be a large number of repeated applications following previously failed attempts, which consequently result in longer and repeated detention for those lodging several applications. Considering due process of law, however, the issuance of detention orders and the repeated application of detention orders by the immigration authorities should never be conducted without judicial approval or review. It is also pointed out in the aforementioned opinion that, “judicial oversight of any form of detention is a fundamental safeguard of personal liberty and is essential in ensuring that detention has a legal basis”, therefore, any asylum seeker undergoing detention must be given the chance to challenge the legality of their detention before a judicial authority (Opinion 58/2020, WGAD, pp. 12–13). The courts should take charge of conducting approvals and reviews of detention, as well as provisional release from detention, based on legal requirements rather than leaving these decisions open to the administrative discretion. This is a requirement of art. 33 of the Japanese Constitution, which intends to prevent abuses of administrative power (Kawamura, 2022, p. 79).

Judicial Precedents Underpinning Japan’s Immigration and Refugee Policies

In a liberal democracy, the justice system is expected to play an essential role in protecting human rights, and the courts need to equally safeguard the individual liberty of anyone within its jurisdiction, including both nationals and foreigners. However, the Japanese judicial system has been acting passively for years in safeguarding human rights, especially the rights of foreigners. The leading case on the issue of foreigners’ rights in Japan is the infamous McLean Case (Supreme Court, 1978). The ruling of the Supreme Court in this case, which was largely negative about constitutional guarantees towards foreigners, has so far had a long-standing influence on the subsequent judicial decisions concerning rights of foreign nationals. More disastrously, it offers a legal basis for the government to justify and maintain its restrictive immigration and refugee policies, as well as the problematic legal framework for refugee status determination under ICRRA.

In 1970, when an American citizen who was teaching English in Japan lodged an application to renew his visa, the Minister of Justice declined his application on the grounds that he failed to notify the immigration authorities of his change in workplace, and he participated in anti-war demonstrations and other political activities frequently during his stay. Thus, the American citizen, Ronald Alan McLean, brought an action against the Minister of Justice in Tokyo District Court and received a decision in favour of his claims. The decision ruled that the disposition of the Minister of Justice in this case had significantly erred in its evaluation of the substance of McLean’s job change and political activities, both of which did not constitute a legal grounding for refusing to renew the period of stay. Therefore, it was considered an illegal disposition that exceeded the scope of discretion granted to the Minister of Justice in view of the constitutional principles of international cooperation and the protection of fundamental human rights. However, when this case came to Tokyo High Court and then to the Supreme Court, the judicial decisions made by those courts, unexpectedly, dismissed McLean’s claim to renew his visa.

The Supreme Court’s decision on the McLean Case, on 4 October 1978, indicated the following three propositions. Firstly, the Court stated that “under customary international law, a state is not obligated to accept foreigners and can liberally decide whether or not to accept them into its territory, and what kind of conditions to attach to such acceptance, unless there is a special treaty”. That is to say, a state has the discretion to decide on the admission and residence of foreigners based on its own judgment (henceforth, Proposition 1). Secondly, “art. 22, para. 1 of the Constitution merely guarantees the freedom of residence and movement inside Japan and does not provide any regulation regarding foreigners entering Japan”. Based on this point and Proposition 1, the Court ruled that “under the Constitution, foreigners are not guaranteed the freedom to enter Japan for sure, nor are they guaranteed the right to reside or continue to reside in Japan”. In other words, foreign nationals are considered to have no constitutional guarantees of the right to enter Japan as well as the right to reside in Japan according to the Japanese Constitution (henceforth, Proposition 2). Thirdly, “the guarantees of fundamental human rights contained in Chapter 3 of the Constitution should be interpreted as equally applying to foreigners residing in Japan, except for the rights that by their nature must be limited to Japanese nationals”. Combined with Proposition 2, however, the third proposition by the Court affirms that “the protection of fundamental human rights for foreign nationals, under the Constitution, is provided only within the framework of the immigration control system, and cannot be interpreted as a safeguard that could bind the discretion of the government to determine whether or not to grant residency, that is, the safeguard to prevent the acts during the stay – which are regarded as fundamental human rights guaranteed by the Constitution – from being taken into account as negative factors at the time of renewing the residency”. Therefore, even though the acts of foreigners are constitutional and lawful, the Minister of Justice can still “deem these acts to be unfavourable to Japan from the perspective of appropriateness and inappropriateness and presume that the foreign national is likely to commit acts detrimental to the interests of Japan in the future”. In light of this statement, while the fundamental human rights guaranteed by the Japanese Constitution apply equally to foreigners, except in cases where the rights, by their nature, are understood to apply only to Japanese nationals, they are merely protected within the framework of the immigration control system and are subject to administrative discretion (henceforth, Proposition 3) (Kondo, 2021, pp. 1–2).

These propositions, essential to the ruling of the McLean Case, have been broadly criticised by academics and practitioners. It is worth noting that, even though the decision in the McLean Case could possibly be justified at the time it was rendered, there is a huge doubt about its validity in a globalised world in the twenty-first century. With regard to Proposition 1, it should be admitted that there were actually no international laws and norms that could specifically bind Japan on the issue of foreigners’ rights when the Supreme Court ruled on the McLean Case. But, soon after this judgment, Japan ratified the International Covenant on Civil and Political Rights as well as the International Covenant on Economic, Social and Cultural Rights in 1979, and has acceded to most of the core international human rights treaties since the 1980s. Certainly, these treaties have imposed considerable international legal obligations on Japan. In this respect, the situation concerning international norms itself has changed significantly since the McLean Case (Sogabe, 2022, p. 13). It is no longer simply the principle of national sovereignty, allowing states to freely determine the acceptance of foreigners, that constitutes the customary international law. Nowadays, the principles of non-refoulement, family reunification, the prohibition on arbitrary detention, and non-discrimination are also considered to be part of the customary international law. That is to say, the customary international law in the contemporary world does not provide unlimited discretion for the state to decide liberally on the entry and residence of foreigners, but rather it asserts a competence of free determination to the extent that it does not violate the basic principles stated above (Kondo, 2021, pp. 2–3). Accordingly, Proposition 1, that asserts an unlimited power of the Japanese government to decide on the admission and residence of foreigners, should be deemed invalid in view of the developments of international human rights law.

Regarding Proposition 2, while art. 22, para. 1 of the Japanese Constitution may be interpreted as a constitutional guarantee of the freedom of residence, limited by the unwritten requirement of being in Japan—thus excluding foreigners newly entering Japan—it is definitely unreasonable to argue that, for those foreigners who have been living in Japan, their right to reside in Japan has no relation to the freedom of residence guaranteed by the Constitution. It seems to be arbitrary to judge that the freedom of residence for foreigners does not require respect, and that the expression of political opinions as an exercise of the freedom of expression guaranteed by the Constitution can be used as a legal basis for restricting another constitutional right, the freedom of residence (Kondo, 2021, pp. 3–4). For this reason, Proposition 2 should also be regarded as manifestly inappropriate and invalid.

As for Proposition 3, there are many more debates due to its ambiguity. With this proposition, the Court simply set aside some fundamental rights under the Constitution that by their nature do not extend to foreigners, but it did not specifically tell what those rights are, leaving the criteria for identifying the “nature” of rights blank (Kondo, 2021, p. 4; Webster, 2006, p. 450). Since there is no specific standard, any interpretation will be possible. In recent judicial practice, with reference to Proposition 1 and Proposition 3, many courts are inclined to assume a logical relation between the state discretion to decide on the acceptance of foreigners and the administrative power to generally control their residence afterwards, which appears to be a plausible explanation for the judgment of the McLean Case to support an immigration control system that can easily exclude constitutional guarantees of human rights when dealing with foreigners. Proposition 3, on this occasion, plays an important role in providing a legal basis for the government to control the residence of foreigners inside Japan within its immigration administration by granting or withholding the Status of Residence. However, legal scholars have argued against this idea, stating that the competence of deciding on admissions does not necessarily lead to the power of unfettered control over the residence of foreign nationals, because there was a common understanding of international law in post-war Japan, even before the tremendous progress in international human rights that has been achieved since, that foreigners were equally granted certain minimum rights and the legal capacity to lead a normal private life. That is to say, the right to life, body, and honour, the right to own and acquire materials necessary for living, and the capacity to make contracts needed for daily life must naturally be granted to foreigners as well as Japanese citizens (Obata, 2021, p. 83). In the meantime, the Status of Residence, namely the qualification enabling foreign nationals to live and carry out certain activities in Japan, is merely supposed to stipulate the conditions of entry in the first place, rather than functioning as a legal concept with which the administrative power is able to regulate every aspect of the foreigners’ lives inside Japan. Considering the actual practice that has extended the Status of Residence to generally regulate the lives of foreign nationals, it is necessary to emphasise that residence control over foreigners in the immigration administration should be exercised within the limits derived from the conditions of entry, instead of being exercised arbitrarily due to the existence of these conditions. The judicial practice above, which wrongly backs up an exceedingly powerful immigration control system, is considered to be a serious consequence of the “expansion of Status of Residence”, that is, the overusing of Status of Residence, and has further exacerbated this problem at the same time (Obata, 2021).

Additionally, it seems to be a critical mistake to follow the logic of Proposition 3, which has made the immigration control law a higher norm than the Constitution in the legal system. Because of this inversion, the guarantees of fundamental human rights for foreigners are entirely dependent on whether entry and residence are granted (Annen, 1993). In other words, the granting of Status of Residence itself has become the key criteria for protecting human rights. However, a significant question would be raised if the Minister of Justice was allowed to make decisions about the Status of Residence based on his political beliefs under the immigration control system. If the Minister of Justice could, when addressing the admission and residence of foreigners, freely evaluate their acts from the perspective of appropriateness and inappropriateness even though these acts are constitutional and lawful, then all kinds of discrimination against foreigners would probably be constitutional in the immigration administration (Kondo, 2021, p. 4). In terms of this evident error, the logic of Proposition 3 turns out to be highly problematic, making this proposition invalid as a result.

Needless to say, the judgment of the McLean Case can be interpreted in many ways and its reasoning concerning the three propositions may be justified in some particular interpretations. Contrary to the critiques mentioned above, some legal scholars conceive of the reasoning in the McLean Case as an appropriate explanation, at least partly, for the relationship between international obligations and rules of domestic laws. They insist on the predominance of domestic laws and contend that legal obligations in international treaties or customary international law do not have the same binding effect as rules of domestic laws. For example, it is argued by constitutional law scholars that a state that has ratified human rights treaties makes a commitment to the international community to guarantee the human rights enshrined in these treaties—namely the international human rights—of those who are under its jurisdiction. Therefore, the state has an obligation to protect international human rights, but it is an obligation only owed to the international community, not to the people in the state. And, more importantly, this international obligation is understood to be an obligation to create a condition in which the protection of international human rights is realised as an end result, while the process through which the protection is achieved is fundamentally a domestic matter (Takahashi, 2003, p. 74). From this point of view, the international obligations will not be directly applicable in Japan but need to be transformed into specific stipulations in domestic implementing legislation before they become effective. Accordingly, the reasoning of Proposition 3 to prioritise the immigration control system can be supported as long as the distinction between rules of domestic laws and international obligations exists. On the other hand, even scholars holding this view do not agree to interpret the Proposition 3 in a manner that would exclude other legal norms while applying the domestic laws and to provide safeguards for foreigners solely within the framework of immigration control system. Instead, they suggest that judges should embrace a higher level of scrutiny in the judicial review when it comes to issues of international human rights and should offer procedural guarantees equivalent to those of criminal procedure in the case of detention, since it will also cause a serious restriction on physical liberty (Sogabe, 2022, pp. 15–16).

In fact, it is necessary to note that the Supreme Court did not make any ruling about detention in the McLean Case. Some inferior courts, however, have extended the judgment and reasoning of the McLean Case to other cases where the detention of foreigners without legal status of residence is concerned. For instance, the Tokyo District Court, ruling against a Nigerian’s request for provisional release from detention, in a decision on 6 October 2020, has affirmed the state’s discretion to determine the system of deportation, including detention, with reference to the McLean Case. It stated that the provisional release under ICRRA is an exceptional measure to allow temporary release accompanied by certain conditions to ensure appearance and prevent escape, as an alternative to detention. Since the law does not stipulate any specific requirement for provisional release, it should be understood that the decision on whether or not to grant the provisional release is left to the broad discretion of the directors in the immigration detention centre. Such a decision will be illegal only when it is clear that the decision lacks any basis in fact or is extremely inappropriate in terms of socially accepted viewpoints, which means that the decision deviates from the scope of discretionary power or is an abuse of this power. Thus, the court dismissed the detainee’s claim that deprivation of physical liberty must be an exception and the unconditional and indefinite detention based solely on the fact that deportation proceedings are underway falls under the category of arbitrary detention, rashly confirming the legality of the disposition not to grant provisional release in this case.

In summary, as described above, the McLean Case and the subsequent judicial decisions regarding foreigners’ rights have raised a number of problems rather than giving sufficient and appropriate safeguards to foreigners in Japan. Meanwhile, the expansion of Status of Residence in the immigration administration, which is legally underpinned and supported by the judicial practice, has problematically blurred the limits of the administrative power to control the entry and residence of foreign nationals, and can partly account for the restrictive immigration and refugee policies under which only foreigners whose activities are deemed useful to Japan will be accepted and granted legal status. However, it must be clearly emphasised that with the development of international human rights, the judgment and reasoning in the McLean Case is significantly out of date and can no longer be maintained in the contemporary world. Instead of supporting an immigration control system with dominant power to exclude other legal norms, the Japanese courts are expected to interpret the domestic laws in conformity with the international norms, including the direct application of these norms, in order to better fulfil the role of protecting human rights under the international obligations (Matsuda, 2022).

Recent Developments in Legislation and Judicial Practice

Whether on a voluntary basis or under international pressure, recent years have witnessed some efforts in Japan’s legislation and judicial practice to reform the current immigration control system and offer stronger protection to foreigners. Therefore, changes and new developments are happening indeed in Japanese society, though slowly and gradually.

To solve the broadly criticised problem of long-term detention, an expert group on detention and deportation was established in October 2019, under the 7th Immigration Control Policy Discussion Panel, a private gathering led by the Minister of Justice. The group held ten meetings to discuss issues during 2019–2020, and ultimately compiled a report titled “Recommendations for resolving the issues of deportation evasion and long-term detention” in June 2020. This report has emphasised a shared understanding that the following four points should be taken into consideration as the basic premise for subsequent recommendations in the report. First, in order to identify deportees who need to be deported from Japan, it is necessary that those who should be deported due to the deportation order and those who should be permitted to stay or be granted asylum be properly distinguished and recognised in the preceding deportation proceedings. Thus, improvements in the deportation system and its applications should be made from this perspective. Second, for those who need to be deported, deportation proceedings should be facilitated. Third, the detention period should be as short as possible. Therefore, measures should be taken to eliminate long-term detention and alternatives to detention should also be considered. Fourth, in the event of detention, the treatment of detainees should be carried out in an appropriate manner, with due consideration for human rights and humanity (Expert Group Recommendations, 2020, p. 21). In addition, to prevent prolonged detention, it is suggested that enhancements and improvements to the legal procedure for deciding whether to issue a deportation order should be achieved, in order to appropriately consider the circumstances of each person. Meanwhile, further clarification of factors and criteria for special permission for residence should be considered, in terms of improving the transparency of decisions about granting or denying that permission (Expert Group Recommendations, 2020, pp. 22–24). However, the report has also advocated establishing a new system to increase the effectiveness of deportation proceedings, in which an order would be issued to deportees who refuse to be deported without justifiable reasons, requiring them to apply for a travel document necessary for their deportation or to leave Japan by a certain date, and a penalty would be imposed for violation of such an order. An examination of the appropriateness of the refugee application process, which currently allows repeated applications without limitation, is required as well. The report stated that, in the case of repeated applications, it would be appropriate to consider legal measures to provide exceptions to the suspensive effect on deportation during refugee application procedures (Expert Group Recommendations, 2020, pp. 26–39).

Based on this report, and in response to the aforesaid opinion by the UN Working Group on Arbitrary Detention, the Japanese government submitted a bill to revise ICRRA to the Diet on 19 February 2021. The bill contained several important amendments to the current legal framework, including instituting an application procedure for the special permission for residence, creating a system of monitoring measures as an alternative to detention, developing procedures and provisions related to the treatment of detainees, introducing a complementary protection system for asylum seekers who are regarded as equivalent to refugees, reviewing provisions with regard to the suspensive effect on deportation during the refugee application procedure, and establishing an expulsion order system that can demand deportation from Japan for those who have evaded deportation.

Part of the proposed amendments will, admittedly, contribute to providing better protection for asylum seekers. For example, a group of provisions concerning the treatment of detainees are going to be newly introduced, ranging from the rights of detainees to perform religious acts and to read books, magazines, newspapers, as well as other publications, to the liabilities of officers in the immigration detention centres and the necessary measures to ensure health and medical care for detainees. Regarding the granting of special permission for residence, it is proposed that considerations formerly presented in the guideline should be included in the new law. That is to say, it will be explicitly stipulated in ICRRA that the Minister of Justice shall, when determining whether or not to grant the special permission for residence, take into consideration the reasons why foreign nationals wish to stay in Japan, their family relationships, their behaviours, the circumstances leading to their entry into Japan, the period of their stays in Japan, their legal status during the period of stay, the facts that result in their deportation, the necessity for humanitarian consideration, as well as the various circumstances in Japan and abroad, and the expected impact on other unlawful residents in Japan. This provision is thought to be of great importance and deserving of a positive reception, since it makes clear the considerations in the law and thus, with its help, judicial review in accordance with the above considerations would be possible (Hasegawa, 2022, pp. 187–188; Sogabe, 2022, p. 15).

Despite these favourable changes, this amendment bill has also introduced many provisions that would put foreigners or asylum seekers at a greater disadvantage. For this very reason, it has received plenty of opposition and critiques ever since it was submitted to the Diet. On the day of its submission, the Japan Association for Refugees (henceforth, JAR) announced an opinion outlining the various problems with the bill with respect to refugee protection (JAR Opinion, 2021). A week later, on 26 February, the Japan Federation of Bar Associations (henceforth, JFBA) also released a statement to express its opposition to the bill, saying that it would reject the bill unless fundamental changes were made to address the issues pointed out in the statement (JFBA Statement, 2021a). Moreover, a joint letter from three Special Rapporteurs of the UN Human Rights Council and the Vice-Chair of the UN Working Group on Arbitrary Detention was sent to the Japanese government on 31 March, indicating the bill’s violation of international human rights law (Morales et al., 2021). The UNHCR also expressed concerns about the newly proposed procedures and measures relating to the status and treatment of asylum seekers in its comments on the bill (UNHCR Comments, 2021).

Overall, the bill was mainly criticised for the following reasons. First, it would include new provisions in ICRRA with regard to the lifting of the automatic suspensive effect on deportation in certain cases. Under the currently effective law, deportation is uniformly suspended during the refugee application process, which means that the applicant for refugee status can avoid deportation through repeated applications. Therefore, the amendment bill prescribed that in the case of the third or subsequent application, or applications from persons who have served a prison sentence of three years or more, the suspensive effect on deportation does not apply. It has been contended by several organisations, however, that removing automatic suspensive effect of refugee applications will increase the risk of persons who are in need of international protection being returned, contrary to the principle of non-refoulement (JFBA Opinion, 2021a, pp. 19–20; UNHCR Comments, 2021, p. 10). Second, there would be an expulsion order system, accompanied by penalties, for not complying with such orders, so as to promote the execution of deportation. According to the formal opinion of the JFBA, this system and its penalties are difficult to justify, because they may violate deportees’ rights to court access and because there is no need to use criminal penalties to enforce deportation (JFBA Opinion, 2021a, p. 21). Besides, as the UNHCR has noted in the aforementioned comments, for asylum seekers who are normally unable or unwilling to approach the authorities of their countries of origin, the order to apply for a travel document, which forces them to approach the consulates of their countries of nationality, might heighten their risk of being persecuted upon return, or give rise to sur-place refugee claims. For stateless persons or persons of undetermined nationality, in the meantime, there need to be special provisions that grant them an exemption from those orders (UNHCR Comments, 2021, p. 37). Third, the bill intended to introduce a system of monitoring measures as an alternative to detention. Under the current ICRRA, the only way of being released from detention is to obtain a permit for provisional release. However, the measures for managing provisionally released detainees are so insufficient that prevention of their escape becomes impossible, making it a difficult decision to grant the provisional release. In light of this situation, the system of monitoring measures can be regarded as a method to prevent escape as well as to avoid prolonged detention (Hasegawa, 2022, p. 187). Nonetheless, it has been stressed that the proposed monitoring measures in the bill would be no less problematic than detention. While monitors are obliged to notify the supervising immigration inspector of the living conditions of the monitored person, the status of compliance with the conditions attached to the monitoring measures, along with other requested matters, these obligations would be a major detriment in building a trusting relationship between the monitor and the monitored person. Thus, in reality, very few supporters and lawyers would be willing to assume the obligations of notification, making the system largely infeasible (Hasegawa, 2022, p. 187; JFBA Opinion, 2021a, pp. 11–12).

Influenced by the widespread opposition and more crucially, by the death of a Sri Lankan woman at the immigration detention facility in Nagoya, the bill to revise ICRRA was finally discarded in May 2021. Two years later, however, the Japanese government prepared a new bill, similar to the former one to a large extent, and officially submitted it to the Diet again on 7 March 2023. The new bill has made a minor modification to the old one by deleting the controversial provisions for the periodic notification obligations of monitors in the system of monitoring measures, and introducing a new process of reviewing the necessity for detention of those who are being detained every three months and transferring detainees who need not be detained any more to the monitoring measures. On the other hand, the bill still retained numerous provisions relating to the formerly criticised procedures and measures, thus bringing about an opposition movement, with broad participation in Japanese society against its passage. Like its predecessor, the 2023 bill was strongly opposed by JAR and JFBA since it contained few perceived improvements in fact. Furthermore, over four hundred scholars from different areas in Japan signed a joint statement to express their objections to the bill, due to concerns about the human rights violations it contained. A number of civil action groups and student associations joined in the opposition movement by organising protest rallies, holding press conferences, and engaging in information sharing and support seeking via social networking sites, for the purpose of preventing law revision based on the 2023 government bill. In parliament, opposition parties such as the Constitutional Democratic Party of Japan and the Japanese Communist Party spared no effort in opposing the government bill, submitting another amendment bill, joined by several opposition parties, that suggested creating a Refugee Protection Commission as a third-party organisation to grant refugee status in accordance with international norms. Nevertheless, the government pushed its bill through the Diet on 9 June 2023, defying the huge dissatisfaction and massive criticism from opposition parties and the public.Footnote 5

In addition to the latest changes in legislation, there are some new trends in judicial practice that are worth mentioning. As more and more cases related to the human rights of asylum seekers or foreigners come to court, judges are gradually changing their stances and are trying to make improvements in refugee acceptance and protection. Legal scholars have noted that, in recent years, judicial decisions that seem to have taken into account the Handbook by UNHCR are emerging. In reference to the Handbook, judges are more likely to ease the burden of proof on refugee applicants, thus leading to greater inclusion of refugees (Hasegawa, 2022, p. 177).

Among the developments of judicial practice, a remarkable decision rendered by Tokyo High Court on 22 September 2021 must be highlighted (Tokyo High Court, 2021). The court offered recognition of the right to court access in its judgment to two Sri Lankan men, who were deported before they could file an action against the administrative decisions rejecting their applications for refugee status. Considering constitutional guarantees of fundamental human rights, the court specifically ruled that officers in the Immigration Bureau had delayed the notification of the final decision regarding the review request of the disposition of rejecting the grant of refugee status until just before the deportation, on the premise that the parties concerned were subject to mass deportation, and had directly deported them without allowing for contact with any third party after the notification. In light of these facts, it should be deemed that the officers had deprived them of the opportunity to undergo judicial review of their refugee status, thus it is a violation of the right to court access guaranteed by art. 32 of the Constitution, as well as the guarantee of due process provided in art. 31 of the Constitution.

The judgment of Tokyo High Court in this case has marked a stark departure from the McLean Case. By recognising foreigners’ right of access to courts under the Japanese Constitution, Tokyo High Court has provided a framework free from the McLean Case which would make it possible to broadly protect the human rights of foreigners, including those without legal status of residence in Japan. In fact, when discussing the constitutional guarantee of due process in art. 31, Tokyo High Court has combined it with art. 13, which contains the right to the pursuit of happiness, a right underlying all other human rights in the Constitution. Therefore, it is reasonable to assume that stronger protection of human rights in the refugee application process will be made available to foreign nationals in the future, especially in the case of detention, the deprivation of physical liberty.

Conclusion

Today, with the development of international human rights law, the predominance of domestic laws that pose a great threat to the human rights of foreigners based on the doctrine of national sovereignty can no longer be justified unconditionally. As discussed in this chapter, the legal framework for refugee acceptance and protection in Japan has structural problems with regard to the narrow interpretation of the word refugee, the heavy burden of proof on asylum seekers, and the lengthy refugee application procedure, which cause not only the low refugee recognition rate, but also various human rights violations. The current refugee law, thus, has been proven to be inadequate and inappropriate in protecting the fundamental rights of asylum seekers, and needs to be thoroughly reformed. Even though the 2023 law revision has tried to deal with some problems, there will probably be no great improvement in the quality of human rights protection in Japan. It is necessary to note that, without fully reviewing the refugee application procedure and the criteria for refugee status determination, the newly enacted amendments to ICRRA, aimed at reducing or eliminating long-term detention, will merely raise new problems of asylum seekers’ rights, rather than ameliorating the situation of refugee acceptance and protection.

Therefore, a great number of measures are still needed to reform the legal framework under ICRRA and to construct a more inclusive immigration and refugee system. For example, setting a maximum time limit for detention, introducing judicial review of decisions relating to detention, and reviewing the criteria for granting refugee status. Accordingly, the courts are expected to play a more significant role in the implementation of international norms to further promote human rights. In view of the faithful observance of international treaties (art. 98, para. 2) and the parliamentary approval of these treaties (art. 73) that are explicitly stipulated in the Japanese Constitution, it can be assumed that the rules of international human rights law have direct legal effect in Japan and are directly applicable in judicial practice (Ejima, 2021, pp. 148–149). Judges should take on greater responsibility in judicial review to motivate policymakers to establish an immigration control system in conformity with the international norms.