Statement Concerning the Government’s Policy on Granting Special Residence Permits to Children of Deportation Evaders Born and Raised in Japan
On August 4, 2023, the Immigration Services Agency released the government’s policy on granting special residence permits to children of deportation evaders who were born and raised in Japan (the “Policy”).
The Policy states that such children and their families will be granted a special residence permit to stay in Japan as a whole family unit, as long as certain requirements, such as that: (a) the child was born in Japan; (b) the child is receiving education at an elementary school, junior high school or high school in Japan; and (c) the child truly wishes to continue to stay in Japan, are met at the time the amended Immigration Control and Refugee Recognition Act came into effect.
The Japan Federation of Bar Associations (the “JFBA”) certainly welcomes this decision to allow some of those children living in Japan who do not have a legal residence status to stay in the country despite being born and raised in Japan, to be able to stay in Japan with their families and give such children the same status as others leading a stable life in Japan.
However, while welcoming the decision, the JFBA wishes to express its concerns over the following points in the Policy, and calls for the further expansion of its scope.
First, the Policy only applies to those who were born in Japan. It has been reported, however, that there are 94 children (as of the end of 2022) of deportation evaders who were born outside of the country. From the perspective of protecting the best interests of the child in line with Article 3 of the United Nations Convention on the Rights of the Child, there are no reasonable grounds to exclude those who were born outside of Japan from this Policy. Indeed, the requirements in the Policy should be amended to protect the best interests of the child, and the focus should be placed on protecting the environment in which those children are growing up and the process through which their personality is being developed, not on whether or not they were born in Japan.
The Minister of Justice stated on the day the Policy was released that the decision to grant a special residence permit to those who were born outside of the country would be made on a case-by-case basis while comprehensively considering the various circumstances in individual cases. However, as explained above, the Policy should be amended to provide relief without limiting the requirements, and if it is not possible to make changes to the requirements, the decision to grant a special residence permit should not be left up to the case-by-case discretion of the Immigration Services Agency and measures should be implemented to ensure relief for the effected children.
Second, the Policy only applies to those who are “children”, which refers to those aged 17 years or younger at the time the amended Immigration Control and Refugee Recognition Act came into effect. Those aged 18 years or older do not qualify for the Policy even if they were born in Japan or grew up in the country since their early childhood. The right of such people to reside in Japan as their own country should be recognized from the perspective of protecting the environment in which they grew up and have lived, as well as the process by which their personality was developed (as per General Comment No. 27 concerning Paragraph 4 of Article 12 of the International Covenant on Civil and Political Rights). Furthermore, the Policy should have been implemented a long time ago, and it is not the children’s fault that the implementation of the Policy came too late for them as they had no control over the timing of such implementation. Given these circumstances, the JFBA is of the opinion that the scope of the Policy should be amended to include those aged 18 years or older who were born in or grew up in Japan.
Finally, even if the child is aged 17 years old or younger and was born in Japan, the Policy will not apply to them “if there are negative circumstances faced by their parents that cannot be overlooked.” The expression “negative circumstances faced by their parents that cannot be overlooked” in this context refers to cases including those in which such parents: (a) entered or landed in the country illegally; (b) have violated the fundamentals of immigration control and residency management administration, such as by using a fake Residence Card or being involved in a sham marriage; (c) have committed a highly anti-social offence such as drug use or prostitution; (d) have been sentenced to imprisonment for more than one year; or (e) have multiple convictions on their criminal records. According to the Policy, families with parents who fall under any of the above cases will not be given a residence status as a whole family.
However, it is the JFBA’s stance that any negative circumstances faced by such children’s parents should not be considered when deciding on the children’s residence status, as children are not an extension of their parents. Such children should be given a residence status in consideration of their best interests. As for the deportation of their parents, the propriety of only deporting the parents while giving their children a residence status should be decided cautiously in light of protecting the right of family unity (Articles 17 and 23 of the International Covenant on Civil and Political Rights), as well as from the perspective of being in line with the principle of proportionality, while considering whether the negative circumstances faced by a particular parent are sufficient to justify family separation by only deporting the parent.
For these reasons above, the JFBA strongly calls for an expansion of the scope of the Policy and for protecting the rights of those affected regardless of their residence status by expanding the Policy to include those who were born outside of Japan, as well as those who spent their childhood in Japan and are now adults.
September 4, 2023
President of the Japan Federation of Bar Associations