Statement on the Bill for Amendments to the Immigration Control and Refugee Recognition Act Submitted by the Government
On February 19, 2021, the Government submitted a bill to the Diet to amend the Immigration Control and Refugee Recognition Act (“the Amendment Bill”).
The Amendment Bill refers to many actions including:
− Instituting a procedure to apply for Special Permission to Stay in Japan
− Establishing and developing procedures and provisions related to the treatment of detainees
− Introducing a system of Monitoring Measures as an alternative to detention
− Lifting of the suspensive effect on deportation for certain cases of asylum seekers
− Introducing a complementary protection system for asylum seekers who are regarded as equivalent to refugees
− Instituting an expulsion order system (including criminal penalties) for those who evaded deportation
The Japan Federation of Bar Associations (the “JFBA”) is opposed to the Amendment Bill unless fundamental changes are made to address the following issues:
- As the JFBA has reiterated thus far, in order to prevent protracted detention, the criteria and the maximum period of detention should be established and a new system of judicial review over the appropriateness and the period of detention should be instituted. Yet again, the Amendment Bill submitted this time has deferred making revisions to address this point. Therefore, the JFBA urges that amendments be made to improve this point, and the relevant systems and frameworks be reorganized in accordance with the change.
- The Monitoring Measures in lieu of detention is supposed to be a system that prevents unnecessary detention and allows those on the Monitoring Measures to find means of subsistence in society. In this system, individuals such as supporters and attorneys are expected to become Monitors. This presents a major problem because Monitors are obliged to oversee monitored persons’ daily activities and the state of their compliance with the conditions of permission for gainful activity, and to report to the Government regarding the same. Failure to fulfill this obligation may lead to Monitors being subject to penal provisions. That is, the obligation of submitting such information forces supporters into a role of an overseer, which conflicts with their position as a supporter, thereby hindering them from taking up the position of Monitors. Meanwhile, attorneys representing monitored persons in filing of various applications to the governing authorities and in litigation are working in the interest of these persons and legally bound to confidentiality.Therefore, this position cannot be compatible with the Monitors’ obligation described above to report to the authorities. Consequently, attorneys will also not allow themselves to accept the position of Monitors. As such, the strict obligation of reporting imposed on Monitors will lead to failure in finding individuals who dare to become Monitors, so that the system’s objective of avoiding unnecessary detention will not be achieved.
Additionally, in regard to engaging in work, those on Monitoring Measures are allowed to work under certain conditions after they have been issued a written detention order, whereas, after having been issued a written deportation order, those on Monitoring Measures are banned from engaging in work. Considering that monitored persons are likely to be involved in actions to revoke administrative disposition of their immigration status, such as negative refugee status determination or the issuance of a written deportation order, which may last for a long period of time, those on the Monitoring Measures who have been issued a written deportation order should also be permitted to engage in work.
- In the Amendment Bill, a procedure to apply for Special Permission to Stay in Japan has been instituted, in which the circumstances of family affiliations and the applicants’ past stay in Japan are spelled out as elements that are positively considered, whereas those who have been imprisoned for more than one year are not granted Special Permission to Stay in Japan in principle. However, whereas it should be provided explicitly that family unity and the children’s best interests are to be considered positively as elements of circumstances that weigh in favor of granting Special Permission to Stay in Japan, the possession of a criminal record should not be used as grounds not to grant the Special Permission to Stay in Japan in principle, although it may inevitably be deemed to be an element for negative consideration depending on the specifics of the crime committed. Additionally, the procedure should not only clarify an occasion for applicants to express their opinion as well as their right to counsel, but also authorize filing of applications for Special Permission to Stay in Japan after the applicants have been issued a written deportation order.
- The Amendment Bill refers to instituting a system to protect persons who do not meet the refugee definition contained in the 1951 Refugee Convention but should be granted international protection as “persons eligible for complementary protection” under the Convention or on humanitarian grounds. However, the system complies with the provisions of the Refugee Convention so strictly that it limits the persons eligible for complementary protection solely to individuals who are equivalent to persons whom the Refugee Convention defines as refugees. Therefore, the system should stipulate a definition that provides appropriate protection to persons including those fleeing from areas of conflict, making reference to the definitions established in the EU and other countries.
- The Amendment Bill provides that, in principle, the suspensive effect on deportation can be lifted for third-time and subsequent applicants. The JFBA opposes this because what should be done before laying down such action is to establish comprehensive legislation and develop concrete measures towards regularizing the refugee recognition procedure. In addition, lifting the suspensive effect on deportation may potentially be a contravention of the principle of non-refoulement, an international principle that prohibits expulsion or deportation of a person to countries where asylum seekers may face persecution upon return. Should any provision to lift the suspensive effect on deportation need to be set down, a procedure should be established so that the subsequent applicants can argue over an exception to the lifting, inferring that the situation prevailing in their country of origin and the circumstances surrounding the applicants are constantly changing. Additionally, the administrative decision on such exceptions should be subject to third-party monitoring.
- In terms of introducing a system that provides imposing criminal punishment on those who do not comply with an expulsion order after having been issued a written deportation order, it should be deleted from the Amendment Bill since there is no necessity nor are clear criteria given for forcing persons to leave using punishment, although the provision sets a certain limit on persons to be subjected to the system.
February 26, 2021
President, Japan Federation of Bar Associations