Statement on the “Proposal to Solve the Issues of Deportation Evasion and Long-term Detention”
On June 19, 2020, the Expert Committee on Detention and Deportation (the “Expert Committee”), an advisory body established under the Immigration Policy Discussion Panel to the Ministry of Justice, published the “Proposal to Solve the Issues of Deportation Evasion and Long-term Detention” (the “Proposal”).
First and foremost, among the measures presented in the Proposal, the ones shown below involve unignorable problems that could potentially be in breach of the rights recognized by—and guaranteed also to individuals who are named on the Written Deportation Order—the Constitution of Japan and international human rights covenants (Articles 13, 14, 17, and 23 of the International Covenant on Civil and Political Rights, Articles 3 and 9 of the Convention on the Rights of the Child, Article 33 of the Convention relating to the Status of Refugees, and Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment).
On Proposal Item 4-1(3) (Establishing a criminal penalty for the act of not departing from Japan committed by individuals who are named on a Written Deportation Order): A significant portion of people who are named on a Written Deportation Order are unwilling or unable to return to their country of origin because they were born or have grown up in Japan, have families in Japan, or they fear persecution upon returning to their origin countries. This has been substantiated by the fact that, in the period from 2010 to 2018, about 20% of the recognized refugees and approximately 41% of those who were permitted residence in Japan for humanitarian considerations, were granted the recognition or permission after issuance of a Written Deportation Order. In spite of this, in the Proposal, the legislative facts, such as reasons or causes for being unwilling or unable to depart as described above, are not fully taken into consideration. Additionally, forcing someone for whom no judicial decision about their eligibility for Special Permission to Stay is yet made to return to their country of origin by means of a criminal penalty, could jeopardize the right to trial and other human rights, and potentially discourages the activities of support volunteers. Therefore, we oppose this item.
On Proposal Item 4-1(4) (Establishing an exception(s) to the effect of suspension of deportation for those who apply for refugee recognition for a second time): We oppose this item unless the authorities undertake specific measures to improve the functionality of the refugee status determination procedures, such as lawmaking to support the interpretation and recommendation of the United Nations High Commissioner for Refugees (UNHCR) pertaining to the interpretation and the procedures spelled out in the 1951 Refugee Convention. Additionally, at least regarding the partial revocation of the effect of suspension of deportation, the applicants’ right to re-examination should be guaranteed and the process needs to be monitored by a third-party organization.
On Proposal Item 4-2(3)b (Establishing a criminal penalty for the act of escaping from detention committed by individuals who are on provisional release): We oppose this item. In light of protecting the right to life of those who are on provisional release, when a certain period of time has elapsed with these individuals not being deported to their country of origin, a system should be instituted in the first place to grant them a tentative status of residence or work permit.
Furthermore, we note that the Proposal has presented some favorable points referring to facilitation of the appropriate application of the Special Permission to Stay, premising that the individuals in need of asylum should be protected properly, and aiming to legislate the provisions of due process such as the procedure for the Special Permission to Stay, the Deportation Procedures, and the procedures to apply for the Permission for Provisional Release. Nevertheless, as described below, there are numerous points in the Proposal that need to be improved:
1. The Proposal should indicate clearly that the aims of immigration control are not only to ensure fairness in immigration control, but to respect the human rights of foreign nationals and provide refugees with protection, and regulations should be developed in order that these aims are well attuned to each other.
2. In regard to enhancing appropriate application of the Special Permission to Stay suggested in Proposal Item 4-1(1), the item should specify the criteria recognized by the international human rights covenants, such as family unity and protection of the best interests of the child. In order to do so, the process for the Special Permission to Stay should be separated from the Deportation Procedures so that the provisions of due process relevant to the Special Permission to Stay should be developed. Additionally, the person concerned should be granted status, also in cases where he or she makes a so-called plea for re-examination, to apply for (or request) the Special Permission to Stay.
3. The detention criteria described in Proposal Item 4-2(1) should be applied only when “there are reasonable grounds to suspect that the person concerned will flee.” Additionally, the judicial review at the beginning of or during the detention, and a maximum limit for the period of detention should also be introduced.
4. Regarding the clarification of the criteria for the provisional release presented in Proposal Item 4-2(3)a, the criteria should be deliberated in light of not restricting personal liberty. Additionally, the determination of eligibility should be made without delay when examining the application for Permission for Provisional Release so that the court may quickly rule on the lawfulness of the determination.
5. On the “new alternative measures to detention” referred to in Proposal Item 4-2(3)a, certain measures should be taken not to detain in the first place, instead of resorting to the so-called universal detention policy whereby all individuals named on a Written Deportation Order are detained. In addition, the alternative measures should constitute a system wherein the Government is involved with responsibility, referring to the models undertaken in foreign countries, without rendering the endorsers or NGO’s liable to bear the burden of implementing the measures.
On March 18, 2020 the Japan Federation of Bar Associations issued the “Opinion on How the Detention and Deportation Policy Should Be” pertaining to the issues that had then been discussed at the Expert Committee. As stated above, the Proposal published this time contains various unfavorable measures and points that should be further improved. Therefore, we urge the Government to exercise careful deliberation taking into account the issues and areas for improvement described above, when they implement the operational/legislative measures reflecting the Proposal for detention and deportation in the future.
July 3, 2020
Japan Federation of Bar Associations