Opinion Calling for Improvement of the Detention System at Immigration Control
September 18, 2014
Japan Federation of Bar Associations
The Japan Federation of Bar Associations (the “JFBA”) prepared its “Opinion Calling for Improvement of the Detention System at Immigration Control” (the “Opinion”) on September 18, 2014, and submitted it to the Justice Minister on November 7, 2014.
Summary of the Opinion
1. Improvement of the Standards for Restriction on Physical Freedom in Deportation Procedures and Landing Examination Procedures
The state should amend the law regarding physical detention in the deportation procedures and landing examination procedures as outlined below. Until the amendment of the law described below is conducted, the state should set the criteria in line with the suggested amendment detailed below and conduct such procedures:
(1) It should be clearly stated in the law that detention should be restricted to the absolute minimum even when it is necessary to secure the deportation, and it should also be clearly stated that when detention is not necessary or appropriate, detention shall not be conducted.
(2) In particular, in cases where the detainees are: minors; those who take care of and foster minors; pregnant women; those who need to go to hospital or need to be hospitalized, such as persons suffering from sickness; possible victims of human trafficking; and other socially vulnerable persons, they should, in principle, not be detained, or they should quickly be released from physical detention.
(3) With reference to persons subject to the proceedings for recognition of refugee status and for deportation, in order to avoid detaining such persons for reasons such as their having no place to live, and to keep the detention to the minimum required, by using alternative measures, the law should stipulate that the state shall bear the responsibility of establishing a system which will enable those without a place to stay to still live in society by providing such persons with temporary housing, etc.
(4) With regard to those who have applied to be recognized as refugees, regardless of whether they have just arrived in Japan or whether they have been staying in Japan for a certain period, in principle, physical detention of such applicants should be avoided and they should instead be granted permission to stay as a refugee applicant as this can stabilize the status of persons whose applications are being processed. When judicial review regarding refugee recognition is being conducted, as a general rule, physical detention should be avoided and such status of the refugee applicants should be retained until the judicial review process has been completed.
(5) With regard to detention periods based on written deportation orders, a limitation should be set from the point of view of being in line with the principle of proportionality.
(6) Deportation enforced in a physical manner should be avoided to the extent possible, and the method of deportation and the standards for using means such as restraining devices in conducting deportations should be set so as not to excessively restrict human rights. In addition, appropriate enforcement of deportation should be institutionally guaranteed by including the procedures for implementation of deportation in the matters to be inspected by the Immigration Detention Facilities Visiting Committee, as well as by bringing transparency into the whole process of implementing deportation so that such process can be reviewed and verified by such Committee at a later date.
(7) Regarding the physical detention of persons under the landing examination procedures, the law should set the authority, the requirements, the maximum period of detention, and the level of treatment under detention, as well as establishing a procedure for prompt relief from detention.
2. Guarantee of Due Process in Deportation Procedures and Landing Examination Procedures
The state should conduct the following measures:
(1) Measures (such as the following) should be conducted which guarantee due process concerning the deportation procedures and landing examination procedures:
(i) Ensuring (a) the disclosure of evidence, (b) the disclosure of reasons for decisions, including reasons for not granting a permit of provisional release or a special permission to stay, (c) the establishment and announcement of criteria for the examination of applications for provisional release, (d) the prompt examination of whether or not to grant a permit for provisional release, and (e) the provision of an appropriate interpreter; and
(ii) Improving the civil legal aid system so that persons with limited financial resources can effectively receive legal aid from lawyers.
(2) The law should be revised to set up: (i) a judicial examination procedure, to be conducted before detention, with regard to the legality of the detention including the need and appropriateness thereof, as described in Item (1), (ii) a prompt judicial relief procedure after the detention, and (iii) a prompt judicial relief procedure concerning judgments on provisional release from physical detention.
(3) Regarding those who are averse to being sent back to their home country, the law should avoid the situation where such persons are subjected to immediate deportation, after the issuance of a written deportation order, without providing them with measures or time to contact the outside world or to ask for a lawyer. Such matter needs to be clearly stated in the law.
3. Providing Human Rights Awareness Training for Workers who may be Involved in Restricting Physical Freedom
The state should provide a detailed training program regarding international human rights law and international human rights standards for staff members of the Immigration Bureau of the Ministry of Justice who may be required to restrict the physical freedom of persons in the deportation procedures and landing examination procedures.