Statement Opposing the Bill for Amendments to the Immigration Control and Refugee Recognition Act
On March 7, 2023, the government submitted the “Bill for Amendments to the Immigration Control and Refugee Recognition Act” (the “Bill”) to the Diet.
The Bill contains 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; partially lifting 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; and instituting an expulsion order system including criminal penalties for those who evade deportation. The Bill is a partial modification of the previous bill, which was deliberated during the ordinary session of the Diet in 2021, and the Bill now: introduces provisions setting forth the mandatory review of the need for detention every three months under the conceptual framework for avoiding detention that allows a choice of detention or being subject to the Monitoring Measures; and deletes the periodical reporting obligation of Monitors in the Monitoring Measures, among other modifications.
However, the Bill still contains many serious issues, as the previous bill did, which include the issues that: (a) even though it is a fundamental human right that the right to personal liberty is respected and any restrictions on such right should be kept to the minimum possible, the Bill leaves the choice of detention or being subject to the Monitoring Measures up to the supervising immigration inspector, and defers the establishment of a judicial review system and a maximum period of detention, and therefore does not realize a fundamental improvement of the current detention system; (b) the Bill introduces a system of Monitoring Measures, which compels supporters and attorneys to play a role that is incompatible with their respective positions; (c) the Bill partially lifts the suspensive effect on deportation for certain cases of asylum seekers, which may potentially be a contravention of the principle of non-refoulement included in the Convention Relating to the Status of Refugees; and (d) the Bill institutes an expulsion order system and criminal penalties that are unnecessary and unreasonable. The opposing opinions already expressed by the JFBA at the time of deliberation of the previous bill (the “Statement on the Bill for Amendments to the Immigration Control and Refugee Recognition Act Submitted by the Government” dated February 26, 2021, the “Opinion on the Bill for Amendments to the Immigration Control and Refugee Recognition Act” dated March 18, 2021, and the “Statement Opposing Once Again the Bill for Amendments to the Immigration Control and Refugee Recognition Act Submitted by the Government” dated May 14, 2021) still apply to these issues.
Even though the Bill contains an exception to the partial lifting of the suspensive effect on deportation for third-time and subsequent applicants, stating that such effect is to be maintained if the applicants submit materials which show that there are “adequate grounds” for them to be recognized as a refugee, it does not contain procedures through which such applicants can argue that they are applicable to the exception to the lifting or the third-party monitoring of the administrative decision on such exception. Thus, the issue stated under item (c) in the preceding paragraph cannot be eliminated by way of introducing such exception.
As for the modifications from the previous bill, the mandatory three-monthly review of the need for detention is to be made by the competent authority itself, not by a third party such as a court. As for deleting the periodic reporting obligation of the Monitors in the Monitoring Measures, the reporting obligation can be imposed on the Monitor upon the request of the supervising immigration inspector. Based on these observations, there is no choice but to say that neither of these modifications from the previous bill is in any way sufficient.
Even after the previous bill was withdrawn in 2021, not only does the search for the truth of the detainee’s death at the Nagoya Regional Immigration Services Bureau that occurred on March 6, 2021 remain inadequate, but another detainee also passed away in a detention facility at the Tokyo Regional Immigration Services Bureau on November 18, 2022. In addition, the Tokyo High Court rendered a judgment on September 22, 2021, ruling that the immediate deportation of asylum seekers who just had been notified of the dismissal of the objections they had filed against the non-approval of their application for recognition of refugee status violated their right of access to the courts (Article 32 of the Constitution), and was therefore illegal. Furthermore, the Mito District Court rendered a judgment on September 16, 2022, recognizing the responsibility of the national government in the death of a detainee at the Higashi-Nihon Immigration Center. All of these events help to expose the many issues involved in Japan’s immigration and refugee status recognition procedures.
The concluding observations published by the United Nations Human Rights Committee following a review on the seventh periodic report of Japan on the implementation of the International Covenant on Civil and Political Rights in October 2022 included recommendations such as introducing a maximum period of detention and taking measures to ensure that a court will effectively decide on the lawfulness of detention. Furthermore, the Committee also expressed concerns over the low rate of refugee recognition by Japan and recommended adopting comprehensive asylum legislation in accordance with international standards.
Given the issues within the country’s immigration and refugee recognition system, and in view of international standards, the Japan Federation of Bar Associations (the “JFBA”) has to oppose the Bill unless and until the serious issues contained in the Bill as mentioned above are drastically improved.
As pointed out in our opinion paper entitled “Proposals for System Reform to Solve Urgent Issues in the Field of Immigration and Refugee Law – Proper Legal System for Legalization, Deportation and Detention of Refugees and Illegal Residents” dated September 15, 2022, the JFBA calls for amending the legislation to realize the guarantee of human rights in compliance with international standards by means such as establishing an independent institution from the Immigration Services Agency for handling refugee recognition in order to guarantee proper refugee recognition, introducing the maximum period of detention at detention facilities and establishing a judicial review system, thereby requiring a warrant to be issued by a judge for detention.
March 9, 2023
President of Japan Federation of Bar Associations