Japan’s Immigration System Unrepentant: Bureaucratic Fiat, Detention by Default Put Foreigners’ Rights at Risk

The 2021 death of a Sri Lankan woman (Ratnayake Liyanage Wishma Sandamali) in a Nagoya detention facility placed Japan’s immigration control system under intense scrutiny and forced the government to withdraw legislation intended to facilitate deportation of asylum seekers. But the revised Immigration Control and Refugee Recognition Act that finally passed the Diet in June 2023 fails to address the underlying problems, according to Kinoshita Yōichi, a former immigration official and the author of a new book on the Japanese immigration system and its abuses.

An Archaic Framework

As Kinoshita explains it, the current system has its roots in the 1951 Immigration Control Ordinance enacted under the authority of the Allied Occupation. When that statute was drawn up, the drafters’ overriding concern was not immigration per se but the repatriation of Korean immigrants, including longtime residents (zainichi) who had lost their Japanese citizenship as a consequence of Korean independence.

“In the seventy years since the postwar immigration control system was established, the situation has changed completely,” says Kinoshita. “But the basic framework, which was designed with the disposition of zainichi Koreans in mind, has hardly changed at all, even after the latest revision.” He insists that the law as it stands threatens the basic rights not only of overstayers and asylum seekers but also of foreign nationals legally residing in Japan.

The fundamental problem? “The discretionary powers of the immigration authorities are far too broad,” says Kinoshita. “I’m not against some measure of discretion, but giving bureaucrats carte blanche isn’t right. Unelected officials have free rein to dispose of foreign nationals however they see fit. And there’s no effective process for reviewing their decisions.”

Rule by Bureaucratic Fiat

The discretionary powers of Japan’s immigration authorities were given a major boost by the Supreme Court’s 1978 ruling in the case of McLean v Minister of Justice. Ronald McLean, a US citizen residing legally in Japan, had applied for renewal of his residence permit, but the Immigration Bureau (since reorganized as the Immigration Services Agency) had denied the application, partly because of McLean’s participation in the antiwar movement. McLean took the case to court in an effort to have the decision overturned. Ultimately, the Supreme Court ruled that, even though the Constitution’s guarantee of civil rights extended to foreign nationals, it was nevertheless within the scope of the Minister of Justice’s discretion to deny a foreigner permission to remain in Japan by reason of his or her exercise of those constitutional rights.

“This ruling put the stamp of approval on the immigration authorities’ vast discretionary powers,” says Kinoshita. “But at least at that time, the final decision was the responsibility of the minister of justice, who is accountable to the Diet and the people and can be dismissed by the prime minister in the event of some controversy. It’s one thing if an accountable cabinet minister makes a considered decision not to renew a person’s visa on the grounds that that person’s political activities are damaging to the national interest. But these days, the final decision is not in the hands of the justice minister.”

Instead, the broad discretionary power of the state is wielded by bureaucrats of the Immigration Services Agency—specifically, the directors-general of Japan’s eight regional immigration services bureaus—a situation Kinoshita calls “frightening.”

“Under the 2001 revision of the Immigration Control Act, the powers of the justice minister were largely delegated to the directors of the regional immigration bureaus,” explains Kinoshita. “There was no public debate over the transfer of power from a cabinet minister to these bureaucrats.”

Thus, in most immigration cases, the final decision is entirely up to the regional director-general with jurisdiction. As a result, the decision tends to reflect that official’s personal beliefs and predilections. “It often happens that two regional bureaus will hand down completely different decisions to people in almost exactly the same situation,” he says.

Furthermore, the system makes it impossible for foreign nationals other than applicants for refugee status to file an objection or demand a review of the regional bureau’s decision in keeping with the Administrative Appeal Act. If they wish to contest a decision, their only option is to file a lawsuit. And given the precedent of McLean v Minister of Justice, their chances of winning such a case are slim indeed.

“I’m not against a rigorous screening process,” says Kinoshita. “But under this system, there’s a serious danger of discretion being wielded arbitrarily. A decision that can turn a person’s life upside down can hinge on the personal views or ideological biases of one immigration official. How can we let such a situation continue?”

Casualties of the Pre-Olympic Crackdown

Between 2004 and 2008, the government pursued a plan to halve the number of unauthorized migrants in Japan. The Ministry of Justice claimed that the program was largely successful thanks to stricter immigration screening, more rigorous detection, and faster deportation procedures. But a major contributing factor was the large number of overstayers or asylum seekers who were granted “special permission” (zaitoku) to stay in Japan at the discretion of the regional directors-general or justice minister.

Once the program was over, however, special permission became difficult to secure. As a result, more and more unauthorized foreign nationals were crowded into detention centers under harsh conditions. The problem became more severe from 2016 on, as immigration authorities clamped down on overstayers and limited the provisional release of detainees as part of a “law and order” campaign ahead of the Tokyo Olympics. Increasingly, detainees resorted to hunger strikes to protest conditions or gain provisional release.

In 2019, Gerald “Sunny” Okafor, a Nigerian national, died while on a hunger strike at the Ōmura Immigration Detention Center in Nagasaki Prefecture. He had spent three years and seven months in detention, during which time he had filed four unsuccessful applications for provisional release. The incident drew widespread media coverage, both inside and outside of Japan, spotlighting the “black box” of Japan’s immigration system, and the controversy fueled calls for substantive amendment of the Immigration Control Act. But Kinoshita and other critics complain that the June 2023 revisions fail to address the system’s basic problems and could even exacerbate them.

Detention by Default

“The detention center in Nagasaki is the old deportation center where Korean nationals were held [after World War II] before being repatriated at the Japanese government’s expense,” notes Kinoshita. As he explains it, the system of “detention by default” for all those subject to deportation has remained essentially unchanged since the days of the 1951 Immigration Control Ordinance, when no one anticipated an increase in deportation evaders or was seriously considering the admission of refugees. (Japan ratified the Convention Relating to the Status of Refugees in 1981.)

Currently, most foreign nationals who are issued a deportation order apply to leave the country voluntarily, at their own expense. Under immigration law, all others are to be deported in a timely fashion at the government’s expense. Kinoshita says it makes no sense to classify people who fail to apply for voluntary repatriation as “persons evading deportation” and detain them indefinitely. “It’s costly, it draws international condemnation, and it goes counter to our national interests.”

One of the changes ushered in by the recent revision is a provision for temporary release of detainees under the supervision of a designated caretaker, such as a lawyer, family member, or other supporter. But Kinoshita views this as a cosmetic change that merely reaffirms the system of “detention by default.” For one thing, it does nothing for all the unauthorized migrants who may be unable to find such a guardian. But more fundamentally, “it’s Immigration’s call whether to release someone under supervision,” says Kinoshita. “Whether someone is held in detention or not is still entirely up to Immigration’s discretion.”

Even Broader Discretion?

In 2006, the Ministry of Justice issued guidelines for granting overstayers and other unauthorized migrants special permission to stay in the country, listing such factors as familial and marital ties with Japanese citizens. But these were mere considerations, not hard-and-fast criteria. In the end, regional directors-general could still do whatever they chose.

The revised law, says Kinoshita, makes a nod in the right direction by codifying those considerations, though the criteria for weighing them remain unclear. At the same time, it raises new concerns by adding an excessively vague consideration, namely, “internal or external circumstances and their impact on illegal residents in Japan, etc.”

“This could be interpreted any way you choose,” says Kinoshita. “I wonder if it isn’t designed to broaden immigration officials’ discretion even further. Personally, that’s my biggest concern.”

Similarly, the law’s new requirement that the authorities provide a written explanation when denying someone special permission may seem like a step forward, but without clear requirements regarding the content or specificity of the explanation, the provision seems unlikely to enhance transparency.

Wanted: A Formal Appeals Process

Although much of the debate over Japan’s immigration system focuses on the plight of asylum seekers, overstayers, and other unauthorized migrants, Kinoshita warns that the current system also poses serious risks to the rights of legal residents.

“For example, there is always the possibility that one’s renewal application will be denied, as in the McLean case. The revised law finally requires the authorities to notify [unauthorized migrants] of the reason for an unfavorable decision regarding special permission, provisional release, or release under supervision. But there’s no comparable requirement to inform legal residents,” Kinoshita points out.

Above all, he says, the system must be revamped to provide an avenue for foreign nationals in Japan, regardless of their status, to appeal an unfavorable decision.

“The process for recognition of refugee status has its own problems, but at least it allows for outside review of a decision by a qualified refugee examination counselor,” says Kinoshita. “But there’s no such mechanism for other status applications. The best option would be to establish a third-party organ to conduct objective checks of immigration decisions and review administrative appeals.”

Kinoshita is not pushing for looser immigration criteria—simply for equity, transparency, and due process. “For too long, foreign nationals have been excluded from the protections of the Administrative Procedure Act and the Administrative Appeal Act,” he says. “And unfortunately, the latest revision of our immigration law does almost nothing to rectify the situation.”

Nonetheless, Kinoshita remains hopeful. “Japan’s immigration system is under unprecedented scrutiny,” he says, “so eventually it will have to change. We need to continue the conversation in a constructive and dispassionate manner, while keeping a watchful eye on the authorities’ implementation of the revised Immigration Control Act.”

(Originally written in Japanese by Kimie Itakura of Nippon.com. Banner photo © Pixta,)