I. Introduction
When Japan admitted over 2,000 Ukrainian refugees in 2022, a key question emerged: is Japan relaxing its strict immigration policy to accept more refugees?[1] The answer—in the negative—came soon after. On June 9, 2023, the Japanese government enacted the Amendment Act of the Immigration Control and Refugee Recognition Act (the “Amendment Act”).[2] The Japanese government enacted this amendment to address deportation evasion, lengthy detentions, and the persons displaced by conflict.[3] Addressing these problems, the Amendment Act authorized three main changes to Japan’s immigration policy: (1) makes eligible for deportation those who apply for refugee status three times or more, (2) establishes a new Alternative to Detention system, and (3) creates a system for granting special permission for displaced persons from conflict to stay in Japan.[4] The Amendment Act’s deportation eligibility for those who have applied for refugee status violates the prohibition against refoulement, codified in the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “UNCAT”), the International Convention for the Protection of All Persons from Enforced Disappearances (the “ICPPED”), and the Convention Relating to the Status of Refugees (the “Refugee Convention”).[5]
II. Background
(a) Refugees in Japan
Japan takes a “passive approach” towards granting refugee status according to the Japan Association for Refugees (“JAR”).[6] From 2021 to 2022, the number of applicants for refugee status in Japan increased 56.3 percent from 1,359 to 3,772.[7] In 2022, the Japanese government recognized 187 applicants as refugees, which is the most recognized refugees in one year in the twenty first century.[8] In comparison, the United States admitted 25,519 persons as refugees in 2022.[9]
Explaining why Japan recognizes so few refugees, the JAR highlights that the Japanese Immigration Bureau, who handles all refugee applications, has “a strong stance on controlling rather than protecting refugees.”[10] The JAR suggests that compared to international standards, Japan makes decisions on refugees’ acceptance with “little transparency.”[11] Agreeing with the JAR, Human Rights Watch (“HRW”) asserts that Japan’s refugee policy “has long been mired in red tape and unnecessary restrictive measures.”[12] HRW explains that refugee applicants are often held in detention centers for “prolonged periods…without judicial oversight.”[13] On average, the refugee application process takes four years; in some instances, it can take ten years.[14] Making a recommendation for reform, HRW advises Japan to “respect the international treaties it has ratified,” such as the Refugee Convention and the UNCAT.[15]
(b) Issues with Immigration Control and Refugee Recognition Act
Japan acceded to the Refugee Convention in 1981 and to the UNCAT in 1999.[16] After acceding to the Refugee Convention, Japan amended its 1951 immigration statute to “establish a recognition system for refugee status” and changed the name of the statute to the Immigration Control and Refugee Recognition Act (“ICRRA”).[17] The ICRRA came into force in 1982.[18]
After nearly forty years, Japan’s Immigration Services Agency (“ISA”) identified three issues that needed reform.[19] First, according to ISA, foreign nationals have been abusing Japan’s refugee procedures.[20] Specifically, the “abuse” stems from foreign nationals who, after receiving a deportation order, apply for refugee status to “unlimitedly suspend[]” their deportation.[21] This “way of avoiding deportation” makes it difficult for Japan “to promptly and securely deport such evaders who refuse to depart from Japan.”[22]
Compounded by the previous issue, the second issue is long-term detentions.[23] Before the 2023 amendment, the ICRRA provided that a foreign national applying for refugee status may be detained “until the time deportation becomes possible.”[24] Due to this, foreign nationals in deportation proceedings who apply for refugee status stall their deportation and thus, remain in detention for long periods of time.[25]
The third and last issue identified by ISA is the inadequacy of Japan’s current protection of displaced persons from conflict.[26] Before the 2023 amendment, vulnerable people who fall outside the Refugee Convention’s definition are “protected at the discretion of the Minister of Justice.”[27] ISA asserts that these three issues led to the Amendment Act.[28]
The Japanese government tried to address these issues by amending its immigration statute in 2021, but it failed when a Sri Lankan woman died at a Japanese immigration detention center after spending more than six months there.[29] Her death “sparked national outrage” at how the Japanese government operates its immigration detention centers.[30] The government resubmitted the Amendment Act in 2023 with a statement that the Act is “essential to prevent[ing] the recurrence of similar cases and to solv[ing] the problem of long-term detention.”[31] The woman, named Ratnayake Liyanage Wishma Sandamali, was the eighteenth foreign national to die in Japanese immigration detention since 2007.[32]
III. Amendment Act of the ICRRA
To cure the deportation evasion issue, the Amendment Act enables Japanese authorities to deport those who apply for refugee status three times or more.[33] Specifically, the Amendment Act prescribes that refugee applicants, “who have been sentenced to imprisonment” for a term of at least three years and who apply three or more times for refuge, “shall [lose] the suspensive effect on deportation.”[34] The Japanese government states that the purpose of this provision is to “encourage the compliance of deportation indirectly.”[35] This provision excludes those who, when filing their third application, have presented “materials with reasonable grounds” on which they should be recognized as refugees.[36]
To solve the lengthy detentions in immigration centers, the Amendment Act establishes a “new Alternative to Detention system,” which allows for deportation proceedings to take place without the foreign national being detained.[37] ISA determines whether a refugee applicant can be placed in the new system on a case-by-case basis by considering any “disadvantage that would be caused by the detention,” risk of fleeing, and other risks.[38]
To fortify Japan’s protection of displaced persons from conflict, the Amendment Act creates a system for “complementary protection and optimization of the system for granting special permission to stay in Japan.”[39] An individual granted “complementary protection” may be permitted the stable status of residence of “Long-Term Resident.”[40] The Act distinguishes the procedures under this system from those recognizing refugees.[41] An independent Asian news agency stated that the special permission system accepts “quasi-refugees,” such as those fleeing conflicts like the war in Ukraine.[42] The Act allows these quasi-refugees to qualify for “resident status, to work, and to receive national pensions.”[43]
The Amendment Act represents the first time since 1951 that the deportation procedures have been updated.[44] The Japanese government asserts that the Amendment Act “resolves issues comprehensively,” and “prepares the foundation to realize a society of harmonious coexistence.”[45]
IV. Violation of International Law
Human rights experts criticize the Amendment Act as violating several international laws like the UNCAT and the ICPPED, and the Refugee Convention.[46] Specifically, U.N. human rights experts criticized the Amendment Act stating that the lifting of automatic suspension of deportation procedure for refugee applicants will “undermine international human rights law and the principle of non-refoulement.”[47] The principle of non-refoulement prohibits countries from “removing individuals from their jurisdiction…when there is substantial grounds for believing that the person would be at risk of irreparable harm upon return.”[48] The prohibition of refoulement is codified in the Article 3 of UNCAT (to which Japan acceded to in 1999), in Article 16 of the ICPPED (to which Japan has been a party since 2009), and in Article 33 of the Refugee Convention (to which Japan acceded to in 1981).[49]
Although the deportation provision excludes those who can present “reasonable grounds” on which they should be recognized as refugees, applicants who cannot provide materials showing that they face persecution at home receive no protection.[50]
Other critics of the Amendment Act state that it fails “to stipulate a maximum period for detention” or allow for timely judicial review of ongoing detentions.[51] The Japanese Federation of Bar Associations (“JFBA”) recommends that the Japanese government establish an “independent institution” from the ISA for “handling refugee recognition.”[52] This institution would oversee refugee applications and appeals.[53] The JFBA also advises the Japanese government to “ensure that refugees are protected” from their first refugee application in compliance with the UN High Commissioner for Refugees (“UNHCR”).[54]
Junichi Akashi, a professor at Japan’s University of Tsukuba, expressed his doubt that Japanese officials will deport refugee applicants “on a large scale.”[55] Instead, Akashi believes the change in deportation procedures will have “an announcement effect” to “discourage repetitive applications backed by the same reasons.”[56] To this point, the Japanese government stated that, through its policy change, it seeks to “encourage the compliance with deportation indirectly.”[57] While not stated in such plain terms, it appears that the Japanese government hopes that people evading deportation, simply by hearing about this change in law, will be deterred from seeking loopholes to stall their proceedings.[58]
Japan’s Amendment Act comes at an inopportune time, as the “global refugee situation has worsened worldwide.”[59] In fact, the Office of the UNHCR stated that for the first time, in 2022, the number of forcibly displaced people exceeded 100 million.[60]
V. Conclusion
As global conflicts spread across Europe and the Middle East, broader refugee recognition is needed to accommodate displaced persons.[61] However, Japan refused the call when its government enacted an amendment to its immigration statute, the Immigration Control and Refugee Recognition Act.[62] Addressing problems like deportation evasion, long-term detentions, and persons displaced by conflict, the Amendment Act promulgated three changes to Japan’s immigration law: (1) deportation eligibility for those who apply for refugee status three times or more, (2) a new Alternative to Detention system, and (3) a special permission system for persons displaced by conflict.[63] The Amendment Act’s deportation eligibility for those who have applied for refugee status violates international laws—specifically the UNCAT, the ICPPED, and the Refugee Convention—by potentially deporting persons to a place where substantial grounds exist that the person would be at risk of irreparable harm.[64] Human rights experts have called on Japan to come into compliance with international law and do more to protect the ever-increasing number of refugees.[65]
[1] Kanako Takahara, Japan Accepted Over 2,000 Ukrainians Last Year. Is its Refugee Policy Finally Changing?, The Japan Times (Feb. 22, 2023), https://www.japantimes.co.jp/news/2023/02/22/national/tokyo-refugee-policy/.
[2] Hiroshi Kikuchi, Chapter 1: Amendment Act of the Immigration Control Act to Resolve the issues of Deportation Evasion and Long-Term Detention Issues, in 2023 Immigration Control and Residency Management, Immigration Services Agency of Japan 80, 81 (Nov. 2023), https://www.moj.go.jp/isa/content/001407639.pdf.
[3] Id.
[4] Id. at 80-83.
[5] Felipe González Morales (Special Rapporteur on the Human Rights of Migrants), Matthew Gillet (Vice-Chair on Communications of the Working Group on Arbitrary Detention), Nazila Ghanea (Special Rapporteur on Freedom of Religion or Belief), Letter to the Government of Japan, U.N. Reference OL JPN 1/2023 (Apr. 18, 2023), https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=27995 (Amendment Act violates the UNCAT and the ICPPED); Teppei Kasai, Japan Immigration Law Creates New Obstacles for Asylum Seekers, Human Rights Watch (June 14, 2023), https://www.hrw.org/news/2023/06/15/japan-immigration-law-creates-new-obstacles-asylum-seekers (Amendment Act violates the UNCAT and the Refugee Convention).
[6] Refugees Fleeing to Japan, Japan Association for Refugees, https://www.refugee.or.jp/en/refugee/#section04 (last visited Mar. 3, 2024).
[7] Hiroshi Kikuchi, 2023 Immigration Control and Residency Management, Immigration Services Agency of Japan (Nov. 2023), https://www.moj.go.jp/isa/content/001407637.pdf.
[8] Id.; Refugees Fleeing to Japan, supra note 6 (see bar graph labeled “Number of Refugee Applications and Recognition in Japan”).
[9] Irene Gibson, Refugees and Asylees: 2022, U.S. Department of Homeland Security 2 (Nov. 2023), https://www.dhs.gov/sites/default/files/2024-02/2023_0818_plcy_refugees_and_asylees_fy2022_v2_0.pdf.
[10] Refugees Fleeing to Japan, supra note 6.
[11] Id.
[12] Teppei Kasai, supra note 5. Founded in 1978, Human Rights Watch is an international non-governmental organization that investigates and reports on abuses happening around the world.
[13] Id.
[14] Refugees Fleeing to Japan, supra note 6.
[15] Teppei Kasai, supra note 5.
[16] Refugees, Ministry of Foreign Affairs of Japan, https://www.mofa.go.jp/policy/refugee/japan.html#:~:text=In%20response%20to%20the%20mass,force%20on%20the%20respective%20dates (last visited Mar. 3, 2024); United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988).
[17] Refugees, supra note 16; Japan: Ministry of Justice Order No. 54 of 1981, Regulation for Enforcement of the Immigration Control and Refugee Recognition Act, Ministry of Justice of Japan (Oct. 28, 1981), https://www.refworld.org/legal/decreees/natlegbod/1981/en/147058 (last visited Mar. 3, 2024).
[18] Refugees, supra note 16.
[19] Hiroshi Kikuchi, supra note 2, at 81.
[20] Id.
[21] Id.
[22] Id.
[23] Id.
[24] Id.
[25] Id.
[26] Id.
[27] Id.
[28] Id.
[29] Sayumi Take, Japan Passes Immigration Reform Bill: 4 Things to Know, Nikkei Asia (June 9, 2023) https://asia.nikkei.com/Spotlight/Japan-immigration/Japan-passes-immigration-reform-bill-4-things-to-know.
[30] Video of Sri Lankan Who Died in Detention in Japan Shown to Public, Kyodo News (Apr. 6, 2023), https://english.kyodonews.net/news/2023/04/a5d6e9c74832-video-of-sri-lankan-who-died-in-detention-in-japan-shown-to-public.html.
[31] Id.
[32] Nicholas Young, Wishma Sandamali: The Siblings Suing Japan Over Their Sister’s Death, BBC (July 18, 2023), https://www.bbc.com/news/world-asia-65692546.
[33] Sayumi Take, supra note 29.
[34] Hiroshi Kikuchi, supra note 2, at 82.
[35] Id. at 82.
[36] Id.
[37] Id. at 82-83.
[38] Id. at 83.
[39] Id. at 81.
[40] Id.
[41] Id.
[42] Sayumi Take, supra note 29.
[43] Id.
[44] Id. at 80.
[45] Id.
[46] Felipe González Morales, Matthew Gillet, Nazila Ghanea, supra note 5, at 5; Teppei Kasai, supra note 5.
[47] Id.; see Motoji Kobayashi, Statement Concerning the Enactment of the Amended Immigration Control and Refugee Recognition Act, Japan Federation of Bar Associations (July 6, 2023), https://www.nichibenren.or.jp/en/document/statements/230706.html. Expressing “its strong regret” for the Amendment Act’s passage, the Japanese Federation of Bar Associations emphasized that the Act’s lifting of the suspensive effect on deportation “may potentially contravene the principle of non-refoulement.”
[48] The Principle of Non-Refoulement Under International Human Rights Law, U. N. Human Rights Office of the High Commissioner 1, https://www.ohchr.org/sites/default/files/Documents/Issues/Migration/GlobalCompactMigration/ThePrincipleNon-RefoulementUnderInternationalHumanRightsLaw.pdf (last visited Mar. 3, 2024).
[49] Felipe González Morales, Matthew Gillet, Nazila Ghanea, supra note 5, at 5; Teppei Kasai, supra note 5; Convention Against Torture, art. 3, supra note 16 (“No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”); Article 16 of the International Convention for the Protection of All Persons from Enforced Disappearances, U.N. Doc. A/ RES/61/177 (Dec. 23, 2010) (“No State Party shall expel, return (“refouler”), surrender or extradite a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to enforced disappearance.”); Article 33 of the Convention Relating to the Status of Refugees, U.N., Treaty Series, vol. 189, p. 137 (July 28, 1951), https://www.refworld.org/legal/agreements/unga/1951/en/39821 (“No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.”).
[50] Id.
[51] Sayumi Take, supra note 29.
[52] Motoji Kobayashi, supra note 47.
[53] Teppei Kasai, supra note 5.
[54] Motoji Kobayashi, supra note 47.
[55] Sayumi Take, supra note 29.
[56] Id.
[57] Hiroshi Kikuchi, supra note 2, at 82.
[58] Sayumi Take, supra note 29.
[59] Japan’s New Immigration Law Raises Concerns Over Safety of Refugee Applicants, The Japan Times (June 10, 2023), https://www.japantimes.co.jp/news/2023/06/10/national/immigration-law-focus/#:~:text=Japan’s%20new%20immigration%20law%20raises%20concerns%20over%20safety%20of%20refugee%20applicants,-A%20woman%20cries&text=After%20fierce%20debate%20and%20numerous,to%20their%20countries%20of%20origin.
[60] Id.
[61] Id.
[62] Hiroshi Kikuchi, supra note 2, at 80.
[63] Id. at 80-83.
[64] Felipe González Morales, Matthew Gillet, Nazila Ghanea, supra note 5, at 5; Teppei Kasai, supra note 5.
[65] Id. at 5-6.
