Japan’s Refugee System on Trial: Treatment of Ukrainians Belies Refugee Protection Principles

From March through the end of July 2022, Japan admitted more than 1,600 Ukrainians displaced by Russia’s invasion. This may seem like a modest number, given the millions of Ukrainians fleeing their war-torn country. But it takes on a different aspect when viewed in the context of longstanding Japanese practice, says Hashimoto Naoko, an expert on refugee and immigration policy.  “In the forty years between 1982, when the refugee recognition system was established in Japan, and 2021, just 915 asylum seekers were recognized as refugees by the immigration authorities,” she notes. “Meanwhile, the Ukrainian evacuees, who do not need to go through the tedious refugee determination procedures, are getting better treatment and more generous assistance than those individuals recognized as refugees.”

Political Factors at Work

The Ukrainians’ privileged status becomes even more paradoxical when one compares their treatment with that of Afghan nationals who used to work for Japanese organizations until the Taliban returned to power in August 2021. The Japanese government initially failed to evacuate the Afghans at risk of persecution or death owing to their collaboration with Japan. Eventually about 400 incumbent local staff members of the Japanese Embassy in Kabul and the Japan International Cooperation Agency were able to enter Japan with their immediate families on short-term visitor visas. But the government refused to extend the same treatment to the families of support staff at Japanese nongovernmental organizations. NGO staff, along with former embassy and JICA staff (that is, anyone whose contract had expired before August 2021), who wish to take refuge in Japan with their families must find their own way to the country. Furthermore, these unfortunates must meet extraordinarily tough requirements to secure a Japanese visa, including a guarantor residing permanently in Japan, proof of financial independence, and a job lined up for them in Japan, among other conditions.

The Ukrainian evacuees, even with no previous tie to Japan, encountered no such obstacles. The conditions for entry were greatly relaxed, and short-term visas were quickly issued. One early group of evacuees was even transported on an aircraft reserved for government officials, an unprecedented move, and the government continues to purchase about 20 commercial airplane seats per week from Warsaw to Tokyo reserved for Ukrainians wishing to come to Japan. Once the evacuees arrive, their status of residence is quickly upgraded, allowing them to work in Japan. National and local authorities, private businesses, and civic groups have all joined forces to facilitate the Ukrainians’ adjustment, offering financial assistance and free Japanese language instruction while helping place them in jobs and waiving the rent for public housing.

“There are political and geopolitical factors behind this special treatment,” says Hashimoto. Prime Minister Kishida Fumio chose to use the pretext that Japan has to work in concert with the other Group of Seven countries in the case of admitting Ukrainians to Japan, while it refused to do so for Afghans. And there were domestic considerations as well. Some Japanese worry that Japan might be the next target, given some territorial disputes between Russia and Japan.

“There’s been an outpouring of private support for the Ukrainians during the current crisis, too” Hashimoto notes. “It’s been a field day for the Japanese media, and people quickly grasped the situation as a fight between Russian President Vladimir Putin as the bad guy and Ukrainian President Volodymyr Zelenskyy as his virtuous opponent. The press has been covering the Ukrainian evacuees on a daily basis. Displaced Afghans, by contrast, are obliged to keep a low profile to protect their own safety and that of their families left behind, so it’s very hard for them to call attention to their plight.”

Japan’s High Legal Hurdles

The Japanese term hinanmin, translated “evacuee” or “displaced person,” is not an official designation but a description that the government uses to distinguish people fleeing indiscriminate violence (in this case, by Russian armed forces) from refugees as defined by the UN 1951 Refugee Convention.

The Refugee Convention defines refugees as persons who are unable to return to their country of origin “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.” The definition above does not include those fleeing generalized, indiscriminate violence, be it in times of war or during peacetime. While the UN High Commissioner for Refugees insists that domestic conflicts are seldom entirely indiscriminate, Japan favors a textual interpretation of the Convention.

In fact, Japan recognizes less than 1% of asylum applicants as Convention refugees—a fraction of the recognition rates common in the West. This is partly due to the government’s narrow interpretation of the notion of persecution, along with the high burden of proof it places on applicants, among other factors.

“To what extent does a person have to demonstrate a fear of persecution to receive refugee status? The criteria are tougher in Japan than in other countries,” says Hashimoto. The Japanese government demands that each asylum seeker provide objective proof that he or she faces life-threatening persecution. “It’s almost impossible to assemble that kind of evidence when one is fleeing for one’s life,” Hashimoto points out.

Hashimoto deplores the lack of strategic and long-term vision surrounding immigration and refugee policy in Japan. “Determination of refugee status involves the use of criteria and judgments that are distinct from civil or criminal proceedings,” says Hashimoto. “We should be making individual judgments taking into account a long-term strategic view of the national interest—such as Japan’s international reputation for humanitarian conduct or investment and partnership in the eventual reconstruction of refugees’ countries of origin—not just on short-term textual and meticulous considerations.”

With a few exceptions, such as the acceptance of over 11,000 Indo-Chinese refugees from 1978 to 2005 and Ukrainian evacuees this time around, Japan simply does not see the possibility of pursuing larger foreign-policy goals through its refugee and immigration policy, says Hashimoto. “I imagine this partly reflects the persistence of deep-rooted myth about Japan as an ethnically homogeneous society.”

The Kishida cabinet plans to resubmit a controversial amendment to the Immigration Control and Refugee Recognition Act in the fall, and it is reopening discussions on creating a new category of “quasi-refugee” that it claims would provide “subsidiary protection” for people like the Ukrainians displaced by indiscriminate violence. Hashimoto remains skeptical.

“The term ‘subsidiary protection’ was included in the scrapped 2021 reform bill as well,” she says. “It was expressly geared to people who faced persecution that didn’t fall into any of the five categories listed in the Refugee Convention. Unless the Japanese government loosens its interpretation of the notion of persecution, such a change is unlikely to broaden the scope of people eligible for protection. Japan should take into account the example of the European Union’s Qualification Directive and clearly include under subsidiary protection people fleeing indiscriminate violence and those facing the risk of torture.”

Hashimoto believes Japan can learn from Europe. “The EU countries are similar to Japan in that they are not historically nations of immigrants, they value social and cultural cohesion, and they are welfare states. At the same time, they are working to coordinate their refugee recognition criteria through multilateral legislation. I think their efforts are worth studying.”

One Step Forward, Two Steps Back?

The immigration amendment bill the government submitted to the Diet in 2021 was widely criticized as a step backward for refugee rights, and the legislation was ultimately scrapped. (What eventually turned the tide against the bill was an incident in which a Sri Lankan woman died in custody at an immigration facility.)

The most controversial aspect of the 2021 amendment bill was a provision that would have overturned the current total suspension of deportation of all asylum applicants and enabled the government to lift the deportation suspension of most asylum seekers whose application had been rejected three times. Currently, foreigners can extend their stay in Japan indefinitely by applying for asylum again and again, without even bothering to marshal new arguments for their claims. Critics deplore the revision bill as a contravention of the principle of non-refoulement enshrined in the Refugee Convention and a violation of human rights.

While acknowledging the shortcomings of the current system, Hashimoto insists that any change in the law banning deportation of a person applying for asylum must be accompanied by a relaxation of the strict criteria currently used for conferring refugee status. If not, Japan runs the risk of sending people to their death.

“In the spirit of the Refugee Convention, Japan should grant protection promptly, generously, and humanely on the first application, provided the applicant poses no danger to Japanese society,” says Hashimoto. “If that is achieved, then, people who are obviously at no risk of persecution or torture in their home countries, and those who have no particular humanitarian reason to stay in Japan, such as having immediate family members, should return home, voluntarily if possible. We need a more efficient protection policy.”

Protecting Society

Meanwhile, Hashimoto calls attention to another provision in last year’s bill that specified the sorts of conditions under which an asylum seeker might be considered a danger to Japanese society and thus, under the terms of the Refugee Convention, exempt from the principle of non-refoulement.

“Under the proposed reform, it would have been possible to lift the ban on deportation if a person even unknowingly happened to give assistance to an “antisocial,” meaning organized crime or terrorist, organization in Japan. Under that provision, a person could have been expelled merely on suspicion of having distributed some leaflets, for instance, even if they did so without understanding their content, or of providing language interpreting services to people who turned out to be associated with a terrorist group. That’s much too broad a definition of ‘danger to society,’” Hashimoto says.

How does one define dangerous people, and how does one weigh the risk such people pose to society against their own risk of persecution upon return? How does one treat a person who is “undesirable but unreturnable”? It is a conundrum that confounds even the world’s top legal scholars, and the deportation criteria and treatment differ from one country to the next.

“I am not aware of any refugees or asylum seekers who have posed a significant danger to Japanese society yet, but what if one of them were to bring harm to you or your loved ones in the future? We need to think of this hard question in those terms. The bill submitted last year proposed too broad a scope of danger, but it’s no easy task to craft an alternative clause that’s both fair and efficacious.”

Toward an Independent Authority

Japan’s immigration system has been criticized for combining in one government agency the roles of police, public prosecutor, judge, and jury. Another controversial element is the mechanism that gives the minister of justice full discretion in the system of appeals to grant applicants special permission to reside in Japan.

“When someone applies for special permission to stay in Japan on the grounds that they have family here, for example, that has nothing to do with fear of persecution in one’s home country, so we need a framework separate from the refugee recognition process to assess such humanitarian considerations. Japan should establish effective measures to cope with three distinct categories: ‘convention refugees’; subsidiary protection to cover people fleeing indiscriminate violence and torture back home; and individuals having personal humanitarian reasons to stay in Japan. In addition, we also need to make new provisions for the evacuation of local employees and collaborators, current and former, along with their families, if Japan wants to take pride in ‘international cooperation with visibility on the ground’ on an ongoing basis.”

The minister of justice delivers the final decision whether or not to grant refugee status in response to an appeal to a failed application, after seeking the written or oral opinion of refugee examination counselors. Refugee examination counselors are selected for their knowledge and experience of the law or international affairs. But Hashimoto, a refugee examination counselor herself, points out that not all of them are well versed in refugee law or the status determination process. Moreover, the minister of justice is not legally bound by the opinions of the counselors.

Hashimoto believes Japan needs an independent entity for reviewing and ruling on controversial applications for refugee status. “Given the virtual absence of truly independent agencies in Japan, that’s not likely to happen anytime soon,” she acknowledges. “But ideally, there should be a full-time committee consisting of top-tier experts in refugee protection law and policy, which would have quasi-judicial decision-making power.”

Expanding Resettlement

The kind of far-reaching reform that Hashimoto advocates will not occur overnight, but there are steps Japan can take in the meantime. One is to step up its responsibility-sharing in the third-country resettlement program. Under this program, the UNHCR recommends transfers of people taking temporary refuge in less industrialized countries to third countries that have agreed to admit them as refugees on a semipermanent basis. The applicants’ files are prescreened by the UNHCR before being submitted to the resettlement countries for consideration. Japan has been part of the program since 2010, but it has only accepted a handful of refugees for resettlement. “Japan admitted just 194 Myanmar refugees from Thailand or Malaysia from 2010 to 2019, while even small European countries were accepting thousands every year,” observes Hashimoto.

In 2020, the cabinet agreed on expanding an annual quota to 60 refugees staying in various Asian countries, but the government suspended the program when the COVID-19 pandemic hit. “We should resume the program as soon as possible and increase the quota substantially,” urges Hashimoto. “If we can admit 1,600 Ukrainians within four months, then we should be able to admit Asian refugees as well.”

Hashimoto sincerely hopes that the acceptance and treatment of displaced Ukrainians heralds a new era in Japanese refugee policy, but she fears that the Ukrainians will remain an exception unless Japan undertakes meaningful, systematic reforms. “If our treatment of the displaced is seen to differ according to their country of origin, that opens us up to charges of racial discrimination. How ironic, when the whole refugee protection principle is to rescue those who face discrimination.”

(Originally written in Japanese by Kimie Itakura of Nippon.com. Banner photo: Ukrainian evacuees arriving at Haneda Airport in Tokyo on April 5, 2022. © AFP/Jiji.)