Bangkok, 4 April 2023

 

The Asia Pacific Refugee Rights Network (APRRN) calls for the withdrawal of the amendment bill to the Immigration Control and Refugee Recognition Act (ICRRA) in its current form. We raise concerns that the bill, as approved by Japan's Cabinet on 7 March 2023, may result in longer periods in detention, lack of due process, and violation of the non-refoulement principle.

 

APRRN recognizes the long-standing leadership role that Japan has played in Asia.  Japan was one of the first countries in the region to ratify the Refugee Convention, second only to the Philippines.  It was the first in Asia to offer refugee resettlement, followed by Korea, and it has long been one of the largest donors to refugee protection globally, playing a critical role in response to displacements from Afghanistan and Myanmar. Japan has pioneered education pathways in the region and globally. APRRN applauds Japan for serving as a co-convener of the upcoming Global Refugee Forum (GRF) in December 2023. APRRN looks forward to seeing Japan’s engagement with this role regionally, by both mobilizing other States in Asia, and via the pledges Japan will make to increase global refugee protection and strengthen its domestic systems of protection and social integration of refugees. It is hoped that Japan will move deliberately with a strong sense of responsibility. APRRN remains committed to supporting Japan's government and civil society stakeholders to this end.

 

The Amendment Bill 2023: a second attempt 

On 7 March 2023, the Japanese Cabinet approved a bill for partial amendment to the ICRRA (hereafter referred to as “the bill”).  We believe this is a reintroduction of the bill submitted in 2021 and subsequently withdrawn amid public outcry.^[1] APRRN raises concerns that the bill will compromise the rights and treatment of refugees and other persons in need of protection.

• The bill lifts the automatic suspensive effect of deportation for some applicants and may result in incidents of refoulement. It removes humanitarian status provisions that have been an important source of protection in Japan and replace it with a so-called ‘complementary protection’ regime that is restrictive and makes no reference to Japan’s binding legal obligations under the Convention Against Torture (CAT), the International Covenant on Civil and Political Rights (ICCPR), or other treaty and customary international law-based obligations.
• Detention remains the default position under the bill, and it does not include provisions to ensure that detention is only used as a last resort. There is also no maximum period of detention, and so can be indefinite, and therefore, arbitrary and in violation of international law.
• The bill proposes the imposition of ‘monitoring’ for those who are granted provisional release^[1] from detention.  The provisions on ‘monitoring’ are vague and likely to serve as a roadblock to release. A ‘monitor’ is required to assist in securing accommodation and provide information and advice, but also has some reporting obligations to immigration and must ensure that the person released complies with immigration restrictions and conditions (including restrictions on working). The monitor will be required to pay a fine if the released person violates the conditions set. This will create a potential conflict of interest for anyone assigned as a ‘monitor’ and may stand as a barrier to trust for the person released. 

 

Refugee Status Determination in Japan 

APRRN welcomes efforts by Japan to consider and revise its refugee processes and recalls the APRRN Statement published in 2014, calling for an immediate review of Japan’s refugee protection systems, and in 2015 raising concerns about the review undertaken. The 2015 statement remains particularly relevant given the continuing preoccupation with abuse in this 2023 proposed bill.

 

Multiple stakeholders such as UNHCR, the UN Human Rights Committee, the United States Department of State, legal experts, and NGOs have raised long-standing concerns regarding Japan’s low recognition rate and lack of due process in refugee status determination.^[2] These include a consistent failure to apply the correct lower standard of proof, to observe the general principle of a “shared burden”, and to afford refugee applicants the requisite “benefit of the doubt". Furthermore, lawyers are not, except in limited circumstances, permitted to participate in first-instance interviews, and immigration offences are taken into account as adverse factors against applicants despite being irrelevant to the question of protection. It has come to our attention that interviews (including of vulnerable persons) are sometimes conducted in detention or without access to legal support, and applicants are subject to strict proof requirements while decision-makers are not held to the same strict standards of accountability around decision making. 

 

Decision-making is generally centralized at the highest levels of the Ministry of Immigration by officials that have not met the applicant. Furthermore, the process is prolonged, with limited guidance to applicants who are marginalized and often destitute. Many applicants experience an overall deterioration in physical and mental health over time, reducing the effectiveness of their engagement with the process.

 

Call for a more holistic approach to the asylum system 

APRRN calls Japan to diverge from the current focus on  the alleged “abuse” of the system to a holistic, more effective asylum process that recognises the drivers and vulnerabilities of people seeking protection. Japanese authorities often characterize re-applications that put forward the same claim that was already rejected. Legal experts note that even the strongest claims for asylum are rejected due to the inadequacies of the system, and re-application in such circumstances is not abuse but the only available avenue to avoid refoulement.^[3] Persons who are, in fact, refugees in desperate need of protection may apply multiple times for exactly the same reasons if they are continually rejected and believe there to be an error in assessment. Whilst we do not advocate for a never-ending cycle of re-applications, appropriately addressing repeat applications will require more substantial asylum capacity development and a more holistic approach.

 

Risk of refoulement: lifting 'suspensive effect' of asylum applications on deportation proceedings 

The proposed lifting of automatic suspensive effect after the second application risks placing refugees at harm due to the potential to be refouled back to persecution.  Japan is Party to the 1951 Refugee Convention and 1967 Protocol.^[4] Japan has, therefore, consented to the non-refoulement obligation as set out in Article 33. It is also Party to the Convention Against Torture (CAT),^[5] and the International Covenant on Civil and Political Rights (ICCPR)^[6] both of which also impose non-refoulement obligations. Furthermore, Japan is a party to the Enforced Disappearances Convention^[7] and the Convention on the Rights of the Child.^[8] Non-refoulement is also an obligation under international humanitarian law,^[9] and a customary international law principle.  Non-refoulement is the cornerstone of the international refugee regime and must be safeguarded by States.

 

These are limitations on Japan’s discretion, prohibiting the removal of a person to a State where there are substantial grounds for believing that he/she would be in danger of being subjected to torture or cruel, inhuman or degrading treatment or punishment.^[10]

 

Even where deportation may be permissible, in situations where a person is not at risk, other grounds may warrant a positive act of discretion on the part of Japan authorities, including considerations of family unity, health, or de-facto integration in Japan.  Such positive acts of discretion cannot be legitimately foreclosed, and in this regard, prior provisions for grants of humanitarian status should also be retained.

 

The bill also introduced the lifting of automatic suspensive effect for those who have certain criminal records and so on. It can be applied even for first-time applicants without any decision regarding their eligibility for refugee status being assessed. Japan should follow the comment by UNHCR  in 2021, which recommended the removal of such a clause^[11].

 

Complementary Protection 

On the one hand, the introduction of ‘complementary protection’ provisions could be seen as a positive development; but the addition of a provision on ‘complementary protection’ is coupled with a removal of the provisions regarding humanitarian status.^[12] Furthermore, the language of these provisions has been widely condemned because they do not actually provide ‘complementary protection’ in line with Japan’s legal obligations under various Conventions and international norms. 

 

 

Detention as a last resort  

Japan has regularly acknowledged the problems that arise from long-term detention. Notably, the draft bill introduces provisions aimed at detainees' intellectual, educational, and recreational activities and recognizes that further improvements are desirable.  But the bill focuses primarily on conditions in detention and how to expedite deportation.  The monitoring measures described impose a clear conflict of interest on ‘monitors’ that is unsustainable. A case management approach that recognizes protection needs, vulnerabilities, and risks; makes high-quality referrals; documents gaps; and promotes efficient case resolution is more appropriate. The guidance provided by APRRN Member, the International Detention Coalition, is critically important in this regard.^[13] The bill also does not include measures to prevent detention in the first place by using it only as a means of last resort after all alternatives have been explored and imposing it only for the least amount of time needed to carry out a legitimate purpose.

 

The policy and practice of detention must be set down in law by defining the legitimate purpose of detention and by establishing an explicit limit on the period of detention with judicial review. Indefinite detention is arbitrary and in violation of international law.  The purpose and the time limit must also be clear to the detainee. This includes an obligation for the government authority to provide clear reasons for rejecting an application for provisional release.   Even if the reason for the detention and the duration of detention in any given case is clear to Japan detention officials based on the authority purportedly granted through laws or regulations, that is not enough. It is for the Government of Japan to justify detention on an ongoing basis and not for the detainee to seek release from detention.

 

The same holds true for deportation itself. Unless deportation can be carried out and is under process for imminent departure, waiting in detention for a time when it may become possible is inappropriate. This may appear to make things more difficult for the government, but convenience is not a legitimate justification for detention.  And besides, research has consistently shown that release from detention is beneficial to both detainees and governments^[14] It reduces costs (both financial and human) resulting from prolonged detention and improves outcomes of compliance among the migrant population.

 

In Conclusion:

We, therefore, call upon Japan to withdraw the bill. APRRN remains willing to provide support to the Government of Japan and other stakeholders in relation to refugee protection law and good practices.

 

APRRN recalls concerns raised to Japan in 2015:

“It is worth remembering that a refugee is in fact a refugee as soon as they are displaced for a reason described in the Refugee Convention. They are a refugee whether they are in Japan, the U.S., Pakistan, or any other country. They are a refugee even if they do not know what a refugee is. They are a refugee before any adjudicating body recognises them as such, and they remain a refugee even after they are mistakenly rejected. They are still a refugee when they are deported back to persecution. These are the stakes of refugee status determination. The stakes are generally higher than even the criminal process for which we place a beyond-a-reasonable-doubt burden on the State and provide a right to an attorney out of fear of penalising an innocent person. Any sincere attempt to protect refugees must be undertaken with an understanding of these stakes and a commitment to protecting refugees in practice. It is not enough to sign the Convention and issue a law, if in practice, that law systematically rejects 99% of applicants after a prolonged process during which they are forced to remain marginalised, destitute, and possibly detained.”

 

Recommendations: 

• Withdraw the Proposed Bill in its current form:  We urge the Government of Japan and all MPs to reconsider and immediately withdraw this bill and to take action to ensure adherence to the obligations set under the Refugee Convention and other international human rights instruments. This is also crucial for Japan’s accountability to the international community.
• Consider Japan’s global role and contribution, particularly in the context of the upcoming GRF, host to G7, and with reference to the Sustainable Development Goals (SDGs): We call on the Government of Japan to show clear leadership to ensure international protection and full respect for the human rights and fundamental freedoms of people on the move. Such initiatives would be essential to the coordinated efforts to provide protections and solutions for those forcibly displaced worldwide. They would also be in line with the GRF and the Global Compact on Migration (GCM) as endorsed by Japan. This would also contribute to the achievements of the Sustainable Development Goals (SDGs) and align with the fundamental values of the G7 as well as the pledges made by the G7 leaders in 2021, that Japan will follow up in the upcoming Hiroshima G7 summit in May 2023.
• Consider adopting an independent Refugee Act with a primary focus on protection: The development of such a bill would require broad stakeholder engagement and consultation, including engagement of those affected by such systems (i.e. refugees), and should be comprehensive and in accordance with international law and due process.
• Revise detention legislation consistent with international standards:  ensure that the policy and practice of immigration detention are adequately regulated by law, including by defining the legitimate purpose of detention, establishing an explicit time limit on the period of detention, with clear avenues for habeas corpus challenge to the court, and by ensuring that measures are in place to prevent detention in the first place by using it only as a means of last resort after all alternatives have been explored.  Alternatives to detention should be introduced that focus on facilitating engagement with the process and case resolution through supportive case management rather than through punishment and deterrence approaches.
• Strengthen local protection capacity through a joint/multi-stakeholder pledge made at the GRF: The needs of refugees and host communities are diverse and require access to medical care; language needs; access to education, livelihoods, shelter; legal assistance.  Effective protection requires collaboration and coordination between governmental and non-governmental stakeholders locally. A failure to recognize this reality will result in ineffective systems incapable of recognizing and addressing actual needs or uncollaborative systems with various gaps and overlaps.  A  multi-stakeholder GRF pledge is a welcome opportunity to strengthen local protection capacity. APRRN highlights the support from the Asylum Capacity Support Group established by the GCR, including local governmental and non-governmental stakeholders such as the Forum for Refugees Japan (FRJ), Japan Federation of Bar Associations (JFBA), and UNHCR, among others.

 

 

 

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Japanese Version Here

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The Asia Pacific Refugee Rights Network (APRRN) is a network of over 220 active civil society organisations and individuals from 29 countries committed to advancing the rights of refugees in the Asia Pacific region. APRRN aims to advance the rights of refugees and other people in need of protection through joint advocacy, capacity strengthening, resource sharing and outreach. While APRRN statements are prepared in consultation with members, they do not necessarily reflect the views of all APRRN members. www.aprrn.org

 

Contact: Lars Stenger, Interim Secretary General sg@aprrn.org

 

 

[1] Amnesty International, Japan, ‘Endless detention’: Migrants speak out as government proposes harsh immigration bill, March 14 2023, available at https://www.amnesty.org/en/latest/news/2023/03/japan-endless-detention-migrants-speak-out-as-government-proposes-harsh-immigration-bill/

[2] Forum for Refugees Japan, Submission to the UN Human Rights Committee for the 7th Periodic Review of Japan based on ICCPR, NGO Report on Treatment of Refugees, Asylum Seekers and Stateless Persons in response to the List of Issues(2021), available at <https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=INT%2FCCPR%2FCSS%2FJPN%2F50082&Lang=en; United States Department of State, 2022 Country Reports on Human Rights Practices, available at <https://www.state.gov/reports/2022-country-reports-on-human-rights-practices/japan>, United States Department of State, 2021 Country Reports on Human Rights Practices, available at <https://www.state.gov/reports/2021-country-reports-on-human-rights-practices/japan/>

[3] Japan Federation of Bar Association,  Opinion on the Bill for Amendments to the Immigration Control and Refugee Recognition Act(2021), available at <https://www.nichibenren.or.jp/en/document/opinionpapers/210318.html

[4] Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954), Article 33

[5] Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment or Punishment, opened for signature on 10 December 1984, 1465 UNTS 85 (entered into force on 26 June 1987) Torture Convention Article 3

[6] UN Human Rights Committee (HRC), CCPR General Comment No. 31, The nature of the general legal obligation imposed on States Parties to the Covenant, 26 May 2004, CCPR/C/21/Rev.1/Add.13, 12; and UN Human Rights Committee (HRC), CCPR General Comment No. General comment no. 36, Article 6 (Right to Life), 3 September 2019, CCPR/C/GC/35, 34

[7] International Convention for the Protection of All Persons against Enforced Disappearance, 2716 UNTS 3 (UNTS 48088), adopted Dec. 20 2006, entered into force Dec 23, 2010, at Art. 16(1)

[8] Convention on the Rights of the Child, opened for signature on 20 November 1989, entered into force on 2 September 1990, UNTS vol. 1577, Article 3; Jason Pobjoy, ‘The Best Interests of the Child Principle as an Independent Source of International Protection’ (2015) 64(2) International and Comparative Law Quarterly 327; Advisory Opinion on the Rights and Guarantees of Children in the Context of Migration and/or in Need of International Protection (19 August 2014) Inter-American Court of Human Rights, OC-21/14, Paragraph 242 (“In conclusion, an interpretation of the provisions relating to the principle of non-refoulement, …considering the regime established by the Convention on the Rights of the Child, leads this Court to affirm the validity of the extremely well established principle of non-refoulement in the case of children, so that any decision about their return to their country of origin or to a safe third country may only be based on their best interests, bearing in mind that the risk of their rights being violated may be manifested in specific and particular ways given their age”)

[9] Convention (IV) relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (Fourth Geneva Convention) Article 45 (“In no circumstances shall a protected person be transferred to a country where he or she may have reason to fear persecution for his or her political opinions or religious beliefs.”)

[10] CAT, Article 3.  See also:  Human Rights Committee in its General Comment No. 20: Article 7 (Prohibition of torture, or other cruel, inhuman or degrading treatment or punishment), 10 March 1992, U.N. Doc. HRI/ GEN/1/Rev.7, para. 9 (“States parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement”); and General Comment No. 31 on the Nature of the General Legal Obligation on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13, 26 May 2004, para. 12.

[11] UNHCR, UNHCR comments on the Bill for partial amendments to the Immigration Control and Refugee Recognition Act submitted to the 204th Diet session of year 2021 Based on the Recommendations of the Sub-Committee on Detention and Deportation (SCDD), 7th Immigration Control Policy Discussion Panel(2021), available at <https://www.unhcr.org/jp/wp-content/uploads/sites/34/2021/04/20210409-UNHCR-Full-Comments-on-ICRRA-Bill-English.pdf

[12] Japan Ministry of Justice, Immigration Bureau, Guidelines on Special Permission to Stay in Japan, October 2006 (Revised July 2009) (A discretionary visa that will consider among other things, “When there are humanitarian grounds or other special circumstances.”)

[13] UNHCR and International Detention Coalition, Vulnerability Screening Tool - Identifying and addressing vulnerability: a tool for asylum and migration systems (2016) available at: <https://www.refworld.org/docid/57f21f6b4.html>; International Detention Coalition, There are Alternatives: A handbook for preventing unnecessary immigration detention (revised edition 2015) available at: <https://www.refworld.org/docid/57d022a24.html

[14] International Detention Coalition, There are Alternatives: A handbook for preventing unnecessary immigration detention (revised edition) (2015), available at: https://www.refworld.org/docid/57d022a24.html