0ASIA & THE PACIFIC POLICY STUDIES
Asia & the Pacific Policy Studies, vol. 2, no. 1, pp. 155-168 doi: 10.1002/app5.67
Original Article Migration and Law in Japan
Atsushi Kondo*
Australian National 1 University
Australian Government Department of Foreign Alfrin and Ifcade
Abstract
It has been claimed that Japan is not a country of immigration. Where is Japan's dis-tinctiveness evident, and what features does it share with other countries? This article examines the unique points of Japan and investigates problems of residence and citizenship. This article argues that Japan's historical legacy and international human rights have had an impact on Japan's migration and law, takes into consideration the need for new policies and examines some thorny issues. Globalisation and an ageing population are generating a debate on implementing a more liberal admission policy for highly skilled workers, students and nurses/care workers. Thorny issues comprise ethnic discrimination underscored by a colonial legacy and the still existing cold war in East Asia. Drawing a comparison with selected developed countries, this article indicates several challenges for Japan's migration and law. Markedly, Japan is the only developed industrialised democracy that does not have an antidiscrimination law.
Key words: immigration law, regularisation, citizenship, quota refugees, highly skilled migrants
1. Introduction: Japan's Uniqueness?
It has been claimed that Japan is not a country of immigration (see Yamanaka 2008, p. 187) while some define it as a recent country of immigration (Cornelius & Tsuda 2004, p. 32). Indeed, as shown in Table 1, Japan's ratios of net migration, foreign population1 and citizenship acquisition are relatively small compared with selected immigration countries. However, Japan has a rapidly aging and decreasing population (see Table 2). So it must be appropriate to show it to be 'a potential immigration country' (Kondo 2008, p. 17). Elaborating further on the reasons for 'potentiality', Japan has admitted (i) quota refugees since 2010, and introduced (ii) a point system in 2012. Historically, these two policies constitute important indicators in the transformation to an immigration state, but the messages were self-contained and did not reach or attract the persons who want to migrate. If the government reforms the strict eligibility criteria and draws attention to the foreign public, application numbers will increase. Furthermore, while the 2020 Tokyo Olympics will attract short-term migrant workers for construction projects, the technical intern training system, disguised as a 'learning' program, should be converted to a contract workers program.
What is the uniqueness of Japan and what features does it share with other countries? First, I will examine the unique points in the history of Japan's immigration law. Then, I will discuss major problems of migration in Japan, especially on residence and citizenship.
* Faculty of Law, Meijo University, Nagoya 4688502, Japan; email <akondo@meijo-u.ac.jp>.
1. There is no data on the ratio of foreign-born population in Japan.
© 2015 The Author. Asia and the Pacific Policy Studies published by Crawford School of Public Policy at The Australian National University and Wiley Publishing Asia Pty Ltd. This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License, which permits use and distribution in any medium, provided the original work is properly cited, the use is non-commercial
and no modifications or adaptations are made.
Table 1 Key Figures on Migration in Selected States in 2010
AU CA SE UK US GE FR JP
Net migration rate (per 1,000 population) 7.7 7.2 5.3 3.9 2.3 1.6 1.2 -0.6
Ratio of foreign-born population (%) 26.5 19.9 14.8 11.5 12.9 13.0 11.6 —
Ratio of foreign population (%) — 5.4t 6.8 7.4 6.9 8.3 6.0 1.7
Ratio of citizenship acquisition (%) — 11.4t 5.5 4.5 2.9 1.5 3.8 0.6
t2006, $2007.
AU, Australia; CA, Canada; FR, France; GE, Germany; JP, Japan; SE, Sweden; UK, United Kingdom; US, United States. Source; OECD (2013), pp. 235, 243, 255, 267, 269, 301, 307, 309, 362-3, 381-2, 400.
Table 2 Projections of Changes in the Total Population, Working-Age Population and Aged Population Rate
between 2000 and 2050
Productive age Aged population
Country Population population (15-64) (65 and above) (%)
JP -17,386,000 -30,569,000 17.2-36.5
GE -10,946,000 -17,171,000 16.3-32.7
SE 3,062,000 1,359,000 17.3-22.8
FR 13,999,000 3,631,000 16.0-25.5
UK 14,180,000 4,471,000 15.8-24.7
AU 14,476,000 7,373,000 12.4-22.0
CA 14,531,000 5,643,000 12.5-24.7
US 116,259,000 53,470,000 12.4-21.4
Note: Medium variant.
Source: Population Division of the Department of Economic and Social Affairs of the United Nations (2013).
Furthermore, I will argue that Japan's history and international human rights have had an impact on Japan's immigration law, and taking consideration to the need for new policies for a globalising and ageing society as well as the thorny questions of the still extant cold war and ethnic discrimination. Finally, I will sum up the challenges of Japan's migration and law, making a comparison with selected developed countries.
2. A Brief History of Japan's Migration and Law
2.1 Six Periods of Chronological Development
In Japan, the chronological development of immigration law can be illustrated by the six periods (Kondo 2001, pp. 8-9) outlined in Table 3. After World War II (WWII), significant reforms in the legal framework and integration policy may be characterised by the
so-called '52 Regime', '82 Regime' and '90 Regime'.
• No immigration during the period of national seclusion (1639-1853). The shogu-nate suspected that Catholic traders and missionaries were forerunners of a military conquest by European powers and prohibited both nationals and non-nationals from entering or leaving the country, with the exception of trade relations with China and the Netherlands in the port of Nagasaki. This period represents a peculiar point in Japanese policy-making.
• Opening the door, large emigration and colonial immigration (1853-1945). Commodore Matthew C. Perry of the US Navy and his frigate of 'Black Ships' opened Japan to foreign intercourse. The Japanese Government concluded treaties of commerce with other countries and regulated immigration. Japan colonised Taiwan in 1895 and Korea in 1910. Apart from migration between Imperial Japan and its colo-
Table 3 Chronological Development of Immigration Law and Integration Policy in Japan
(1) No immigration during period of national seclusion (1639-1853)
(2) Opening the door, large emigration and colonial immigration (1853-1945)
(3) Strictly controlled migration under the Supreme Commander of Allied Powers (1945-1951).
(4) Strict immigration even during the period of rapid economic growth (1952-1981)
— The 1951 Immigration Control Order (Act since 1952): The 'Old Act'; the '52 Regime'
— 'Exclusion, discrimination and assimilation policy'
(5) Strict immigration but some refugees accepted and foreign citizens' rights are improved (1982-1989)
— The 1981 Immigration Control and Refugee Recognition Act: The 'New Act'; the '82 Regime'
— 'Equality and "internationalisation" policy'
(6) Relatively strict immigration but ethnic repatriates (front door), trainees/technical interns (side door) and irregulars (back door) come to work as unskilled workers (1990-)
— The 1989 Revised ICRRA: The 'Revised New Act'; the '90 Regime'
— 'Settlement and "intercultural living-together" policy'
nies, the number of immigrants was small. However, during this period, approximately 777, 000 Japanese nationals emigrated mainly to the United States and Latin America.
• Strictly controlled migration under the Supreme Commander of Allied Powers (1945-1951). After WWII, Japan was forced to relinquish its colonies. Although about 1.5 million Koreans returned to the Korean Peninsula during this period, more than 600,000 Koreans and a small number of Taiwanese remained in Japan.
2.2 The '52 Regime': Strict Immigration Even during the Period of Rapid Economic Growth (1952-1981)
The 1951 Immigration Control Order was renamed the Immigration Control Act in 1952 (the so-called '52 Regime'), and this period can be characterised by its 'exclusion, discrimination and assimilation policy' (Kondo 2002, p. 418). Koreans and Taiwanese lost their Japanese nationality in 1952 and the Government of Japan expected them to either return to their countries of origin or naturalise through a procedure, which required them to take Japanese names. Because of the legacy of this policy, Japan is currently the only advanced industrial democracy with a fourth-generation immigrant problem (Chung 2010, p. 3). Additionally, Japan was the only industrial democracy that did not heavily rely on foreign workers during the period of rapid eco-
nomic growth (1955-1973) (Hollifield 1992, p. 15), a phenomenon explained in terms of six factors: (i) overcrowded population; (ii) 'homogenous people' mentality; (iii) mass domestic migration; (iv) automation; (v) reliance on the external labour market; and (vi) long working hours (Kajita 1994; Kuroki 1988; Sellek 2001). Furthermore, the collective memory of the period of national seclusion merits a mention.
2.3 The '82 Regime': Strict Immigration but some Refugees Are Accepted, and Foreign Citizens' Rights Are Improved (1982-1990)
After ratifying the International Covenant on Economics, Social and Cultural Rights (ICESCR) in 1979 and, especially, the Refugee Convention in 1981, Japan opened its door to refugees and improved the rights of foreign residents. The Immigration Control and Refugee Recognition Act (hereafter referred to as ICRRA) was enacted in 1981 and enforced in 1982. The '82 Regime' was influenced by G7 summit member states calling for the reception of Indochinese refugees, even if there were domestic factors, such as a desire to stabilise the legal status of IndoChinese who were already in Japan, and a concern with improving Japan's international identity and solidifying its international position (Flowers 2009, pp. 45-6; Arakaki 2008, pp. 17-18). This period can be characterised by an 'equality and internationalisation'
Table 4 Number of Registered Foreigners by Citizenship 1975-2013
Year Chinese Korean Filipino Brazilian Peruvian Others Total
1975 48,728 647,156 3,035 1,418 308 51,200 751,842
1980 52,896 664,536 5,547 1,492 348 58,091 782,910
1985 74,924 683,313 12,261 1,955 480 77,679 850,612
1990 150,339 687,940 49,092 56,429 10,279 121,238 1,075,317
1995 222,991 666,376 74,297 176,440 36,269 185,998 1,362,371
2000 335,575 635,269 144,871 254,394 46,171 270,164 1,686,444
2005 519,561 598,687 187,261 302,080 57,728 346,238 2,011,555
2006 560,741 598,219 193,488 312,979 58,721 360,771 2,084,919
2007 606,889 593,489 202,592 316,967 59,696 373,340 2,152,973
2008 655,377 589,239 210,617 312,582 59,723 389,888 2,217,426
2009 680,518 578,495 211,716 267,456 57,464 390,472 2,186,121
2010 687,156 565,989 210,181 230,552 54,636 385,637 2,134,151
2011 674,879 545,401 209,376 210,032 52,843 385,977 2,078,508
2012 652,555 530,046 202,974 190,581 49,248 408,252 2,033,656
2013 647,310 526,578 206,805 185,694 48,995 433,741 2,049,123
2014 648,734 508,561 213,923 177,953 48,263 489,169 2,086,603
Source: Japan Immigration Association.
policy.2 In the late 1980s, Japan's bubble economy and labour shortage sparked the first dispute as to whether Japan should be open or closed to foreign workers. However, since 1988, the Minister of Labour has continuously confirmed two basic policies: (i) specialised and technical labour will be actively admitted; (ii) admission of so-called 'simple labour', that is, unskilled labour, will be cautiously examined.
2.4 The '90 Regime': Relatively Strict Control of Immigration but Three Loopholes for Unskilled Workers (1990-)
After the Plaza Accord of 1985, the yen appreciated in value, and real estate and stock prices became greatly inflated until 1991. This bubble economy attracted foreign workers to Japan. In the 1990s and 2000s, Japan experienced a large influx of foreign residents for the first time in its history, as shown Table 4.
2. For the ratification of the Committee on the Elimination of Discrimination against Women, Japan's Nationality Act was amended in 1984 (and enforced in 1985) from
defining citizenship as determined by patrilineal jus sanguinis citizenship to also allowing matrilineal jus sanguinis, and the assimilative naturalisation procedure of 'Japanese name only' clause was eliminated from the administrative guideline on naturalisation.
While the government maintained its official policy of not admitting unskilled foreign workers, in practice three loopholes were established. First, Japan allowed Nikkeijin (persons of Japanese descent), who come mainly from Brazil, Peru and other Latin American countries, to enter the labour market through the front door. Nikkeijin have unrestricted access to work. Second, it opened a side door for trainees and technical interns who stem mainly from China and other Asian countries. The trainee program has come under severe criticism for exploiting foreign trainees as low-wage labourers,3 and although currently most trainees have transferred to a work status as technical interns, they are required to return to their original states within 3 years. Third, there is a back door for irregular migrants mainly from South Korea, the Philippines and China, among others. In addition to introducing sanctions for their employers, the 1989 'Revised ICRRA', which was enforced in
3. The US Department of State's Trafficking in Persons Report 2012 correctly pointed out that there were cases of trainees being subject to economic exploitation such as 'debt bondage, restrictions on movement, unpaid wages and overtime, fraud, and the contracting of workers out to different employers'. Under the Revised ICRRA of 2009, most trainees have shifted to the status of technical intern under which they are recognised as workers with a maximum three-year period of residence, but cases of abuse have not disappeared.
1990, established several new residence statuses in accordance with new economic needs. This period is called the '90 Regime' and it has continued to the present with several amendments.
From the viewpoint of integration policy, this period can be defined by developments in 'settlement4 and intercultural living-together'. In 2006, the Ministry of Internal Affairs and Communication created a Model Plan for the Promotion of Intercultural Cohesion (Tabunka Kyousei)5 in Local Communities with three aims6 and four objectives.7 This was followed by the issuing of plans on migrant integration by numerous local governments (Kondo 2011a, pp. 10-13).
In July 2012, the Alien Registration Act was abolished and a new registration and database system was established with the objective of reinforcing integration policy and preventing irregular residents.8 A new 'residence card' is issued to 'mid- to long-term residents' who are lawfully residents for more than 3 months and have an obligation to carry these cards on their persons at all times. On the other hand, a new 'special permanent resident certificate' is issued to special permanent residents who no longer have a carrying obligation.9
4. Since 1990, newcomer Nikkeijin have been permitted quasi-permanent residence, and since 1991, all old-comers from former colonies and their descendants have been granted special residence permission. In 1998, the deregulation of administrative practice with regard to residence requirements for general permanent residence permission was officially published.
5. Literary translated this means 'multicultural living-together'. However, this is similar to intercultural policy rather than multiculturalism. Loosely translated, this means 'intercultural cohesion'.
6. (i) Recognising cultural differences; (ii) establishing equal relationship; and (iii) living together.
7. (i) Communication support; (ii) livelihood support; (iii) development of a tabunka kyousei community; and (iv) development of a system to promote the above.
8. The former 'alien registration card' was issued to approximately 20,000 irregular residents, for whom it functioned as an identity document (ID) card. The new 'residence card', however, embedded with an integrated circuit (IC) chip, will no longer be issued to irregular residents and asylum seekers.
9. In the 1980s and 1990s, numerous lawsuits were
brought against the fingerprinting obligation of the Alien
Hitherto, an overcrowded population had been cited by Ministry of Justice officials as the most important reason for restrictive immigration. However, with Japan's population marking a decrease since 2008, there emerged a second debate as to whether Japan should be open or closed to foreign workers. Yet, the global financial crisis of the late 2000s 10 and the 2011 Great East Japan Earthquake, which resulted in a decline in the number of registered foreigners, brought the second debate to a halt.
3. Residence
3.1 Short Stays and Long Stays
Let us discuss the main issues of residence. Appended Table I of the ICRRA stipulates the 'short stay' residence statuses under which activities and residential terms are restricted. There are 14 working visas for specialised and technical labour. Until 2004, the major status for foreigners on employment-based residence statuses was Entertainer. However, through the enforcement of stricter immigration controls, the number of Entertainers, many of whom worked as 'hostesses', sharply decreased. Currently, Engineers and Specialists in Humanities/International Services comprise
Registration Act, finally resulting in the abolishment of the obligation in 1999. However, influenced by the terrorist attacks on the US of 11 September 2001, the revised ICRRA of 2006 has obligated foreign citizens (except Special Permanent Residents) to undergo fingerprint scans upon re-entry. In addition, collected data are made available not only for terrorist investigations, but also for general crime investigations. This carries the suspicion of an invasion of privacy and, accordingly, the police should be prohibited from using foreign residents' biometric data for general crime investigations.
10. From April 2009 to March 2010, a government repatriation assistance program provided 300,000 yen per Nikkeijin worker (and 200,000 yen per dependent) to help those who despaired of finding new jobs in Japan return to their native countries. The 20,000 Nikkeijin who returned home using this system were informed that the residence status of permanent resident would not be re-issued to them for a period of three years. However, as of 2013 permission to re-enter Japan has still not been granted.
the two major statuses for graduates in the natural sciences/engineering and human/social sciences, respectively. Trainee and Technical Intern officially aim at a transfer of Japanese technology and expertise to developing countries, but the reality of most cases is a so-called rotation system for unskilled cheap labour. College Students can work for 28 hours per week. In addition, Dependent (family stay), Cultural Activities and Designated Activities are non-working residence statuses, but holders may engage in work where permission is obtained.
Appended Table II of the ICRRA lists the 'long stay' residence statuses under which employment activities are unrestricted. The Long-Term Resident (quasi-permanent) status for Japanese descendants and their family is officially explained as providing opportunities for holders to visit relatives in Japan. However, the hidden intention of policymakers must have been to solve labour shortages extant since the late 1980s. The statuses of Long-Term Resident, Spouse or Child of Japanese National, and Spouse or Child of Permanent Resident require renewal of the period of residence, albeit a straightforward process. Only Permanent Residents and Special Permanent Residents are unrestricted regarding both activity and period of residence. Special Permanent Residents are, moreover, protected from deportation excepting extreme cases. Deportation is only enforceable where special permanent residents have been sentenced to imprisonment for at least 7 years and the Minister of Justice has found that the vital interests of Japan have been jeopardised by the act of crime (Article 9 of the Special Act on Immigration Control).
Permission for permanent residence is granted at the discretion of the Ministry of Justice, where the applicant's residence is determined to be in the interests of Japan and he/she fulfils two legal requirements: (i) good behaviour and conduct; and (ii) sufficient assets or skills to make an independent living (Article 22-2 of the ICRRA). With regard to the administrative interpretation of 'interests of Japan', the practical condition of a continuous residence term of 10 years has been estab-
lished.11 However, there is no language or integration requirement. In 2012, 42,029 permissions for permanent residence were granted.
The ICRRA does not mention the systematic concept of family reunification, but Spouse or Child of Japanese National and Spouse or Child of Permanent Resident may be classified as such. In addition, third-generation Nikkeijin and the spouses and children of second and third-generation Nikkeijin are granted the status of Long-Term Resident. In Appended Table I of the ICRRA, there is also the status of Dependent, which includes dependent spouses and children of foreign citizens holding an employment, student or cultural activity status. Only highly skilled foreign professionals can be sponsors of their parents.
3.2 Irregular Residents, Regularisation and Humanitarian Status
According to the Ministry of Justice, in 1990, the estimated number of overstayers12 in Japan was 106,497. This rapidly increased to 298,646 in 1993, and then gradually decreased to 59,061 in 2014.13 Fearing a further influx of
11. (i) One year for a child of a Japanese national/ permanent resident; (ii) 3 years for a spouse of Japanese national/permanent resident; and (iii) 5 years for a Long-Term Resident, including refugees. Prior to 1988, it was reported that the general requirement was that of a 20-year residence.
12. In 2011, the estimated number of overstayers was 78,488, and all irregular residents including irregular entrants were estimated some 90,000-100,000.
13. The reasons for the decrease were (i) a strict crackdown on irregular residents with the aim of halving their numbers within 5 years (2003 Action Plan for the Realization of a Society Resistant to Crime); (ii) amendments to the 2004 ICRRA, which provided for stricter punishment for irregular residents and introduced the departure order system (fast-track procedure for irregular residents to leave Japan if they voluntarily appear at an immigration control office, carrying a shortened landing denial period); (iii) the 2007 amendment to the Employment Countermea-sures Act, which strengthened the reporting system on the employment status of foreign citizens; (iv) economic recession and a tightening labour market; (v) the replacement of irregular workers as a source of unskilled labour by persons of Japanese descent, trainees/technical interns etc.; (vi) the prevention of terrorism and irregular entry through the use of electromagnetic fingerprinting; and (vii) the practice of granting special permission to stay.
irregular migrants with expectations of an amnesty, the Government of Japan has been unwilling to adopt a 'general amnesty' program.
'Special permission to stay' has been granted to some irregular residents based on ad hoc reasons. The Ministry of Justice has discretion on regularisation. Article 50 of the ICRRA stipulates that 'The Minister of Justice may . . . grant the suspect special permission to stay in Japan if the suspect falls under any of the following items: (i) Having obtained permission for permanent residence; (ii) having had a registered domicile in Japan as a Japanese citizen; (iii) residing in Japan under the control of another due to trafficking in persons; (iv) other special grounds'.
It is not clear what 'other special grounds' consist of, but family reunion should be considered as one of them.14 The number of permissions has increased since the late 1990s, and most cases have involved individuals who were married to citizens or permanent residents. Since 2000, approximately 8,000 special permissions have been granted annually, including to long-term irregular resident families with school children. Irregular resident children have access to compulsory education (ages 6-15) and, according to the revised Guidelines on Special Permission to Stay (Immigration Bureau, Ministry of Justice 2009), long-term irregular residency (approximately 10 years) for families with school children was added as an example of 'positive elements to be given particular consider-ation'.15 'Positive elements' for other cases include 'a long period of domicile in Japan', which although unclear is estimated to comprise a minimum of 20 years.16
14. There were about 2,000 special residence permissions granted annually from 1955 to 1965, and most cases were Koreans' family reunion. Once, the number decreased after the 1965 Treaty on Basic Relations between Japan and the Republic of Korea.
15. These special positive elements are also applicable to the child/foster parent/spouse of a Japanese national or special permanent resident.
16. These positive elements are also applicable to persons
who have 'turned [themselves] over to a regional immigration bureau' and to those who are children/foster parents/spouses of Permanent Residents, Long-Term Residents and children/spouses of Japanese nationals.
Under the 2009 Guidelines, 'serious illness' is taken into account as a 'positive elements to be given particular consideration',17 and 'humanitarian grounds or other special circumstances' comprise 'positive elements' for special permission to stay. Therefore, the Minister of Justice may grant a special humanitarian status to rejected asylum seekers who do not qualify as refugees under the terms of the Geneva Convention but who face a real risk of being subjected to the death penalty, torture, or serious threats to their life. In 2013 and in the period 1991-2013, 151 and 2,257 rejected asylum seekers, respectively, were granted special permission to stay with a humanitarian status in Japan. However, it should be noted that these numbers include some rejected asylum seekers such as spouses of Japanese national/permanent resident and they are granted special permission to stay based on various reasons.
3.3 Asylum Seekers and Refugees
There is no special provision for the right of asylum (such as Article 16a in Germany's Basic Law) in Japan's constitutional and immigration laws. The criteria for awarding asylum under the ICRRA are same as the Geneva Conventions. In 2013 and in the period 1982-2012, there were 3,260 and 17,559 applicants, of whom six and 622, respectively, were recognised as refugees. In addition, albeit separate from the refugee recognition procedure, from 1978 to 2005, 11,319 Indochinese refugees were permitted to resettle in Japan. In 2012, there were 3,316 decisions and 21 recognised refugees, so the rate of refugee recognition (0.6 per cent) was extraordinarily low compared to those in other industrial countries (see UNHCR 2012, pp. 94-6).
Furthermore, in 2010, the Government of Japan initiated a refugee pilot project, with an annual quota of 30 refugees from Myanmar. However, the actual number received was 27 in
17. The Guidelines stipulate that 'When the applicant requires treatment in Japan for a serious illness, etc., or when the applicant's continued presence in Japan is deemed necessary in order to nurse a family member who requires such treatment'.
2010,18 in 2011, 0 in 2012,18 in 2013 and 23 in 2014. Many applicants declined to come to Japan because they gained a negative impression from the precedents and were anxious about their future.18 Recognised refugees are normally granted a Long-Term Resident, status which enables holders to work and receive welfare benefits. In addition, refugees can access free Japanese language instruction.
In contrast, asylum seekers have a possibility to be provided with permission for a provisional stay under Article 61-2-4 of the revised ICRRA of 2004; otherwise, they need to be detained. The Refugee Assistance Headquarters provides services for asylum seekers, taking the form of a free counselling, payment of medical expenses and the provision of limited accommodation. Asylum seekers whose statuses are irregular cannot work. Even asylum seekers whose statuses are regular cannot work for 6 months after their application for refugee status, and during this time, asylum seekers may be given assistance with living and accommodation expenses (1,500 yen per day and 40,000 yen per month, respectively). However, in 2012, it took approximately 3 months to receive the expenses because of the high number of applications.
4. Citizenship
4.1 Acquisition
In accordance with the bilinial jus sanguinis, Japanese citizenship by birth is usually acquired from the citizenship of either Japanese parent (Article 2-1). However, Article 3 of the Nationality Act formerly denied citizenship to children born out of wedlock and acknowledged by the Japanese father after birth based on the requirement of (i) acknowledgment before birth or (ii) marriage of the parents after birth. In 2008, the Supreme Court declared this Article to be unconstitutional under the equal protection clause (Okuda & Nasu 2008), and the amended Article admits
18. They are not familiar with Japanese lifestyle, lan-
guage and long working hours in agriculture. Extended family members cannot enter Japan.
citizenship after birth through notification to the Minister of Justice.
The Minister of Justice may permit naturalisation under certain conditions.19 In practice, a reading/speaking knowledge of Japanese at the level of a third year elementary school pupil (ages eight to nine) is necessary, but there is no civic knowledge or assimilation requirement. The low naturalisation rate (see Table 1) stems from the principle of avoidance of dual citizenship.
4.2 Loss and Recovery
Japanese citizens having foreign citizenship may renounce their Japanese citizenship by notification to the Minister of Justice (Article 13). Note the unique 'system of reservation' for the sake of the principle of avoidance of dual citizenship (see Murazumi 2000, pp. 420-3). Japanese citizens who acquired the citizenship of a foreign country through birth, and who were born abroad, shall retroactively lose Japanese citizenship as from the time of birth unless they indicate an intention to reserve their Japanese citizenship (Article 12). Persons under 20 years of age who have lost Japanese citizenship under this system may reacquire Japanese citizenship by making notification to the Minister of Justice if they have a domicile in Japan.
There is another unique 'declaration of choice' based on the principle of avoidance of dual citizenship even in the case of a child of international marriage. Generally, Japanese citizens having foreign citizenship shall select one of the nationalities prior to their becoming 22 years old (Article 14). However, this selection is not a strict obligation: 'Japanese citizens who make a declaration of choice shall endeavour to renounce their foreign citizenship' (Article 16). Indeed, while the Minister
19. (i) Having had a domicile in Japan for at least 5 consecutive years; (ii) being at least 20 years of age; (iii) being a person of good conduct; (iv) being able to make a living through one's assets or abilities, or those of a spouse or relative; (v) not having the citizenship of another country, or renouncing one's citizenship because of the acquisition of Japanese citizenship; and (vi) not having planned or advocated the destruction of the Constitution or the Government of Japan (Article 5 of the Nationality Act).
of Justice may provide written notice for this selection (Article 15), there is no practice of actually doing so.20
4.3 Statelessness
According to the alien registration data of 2011, there were 1,100 stateless persons. In addition, there will be a number of unregistered stateless persons who are irregular residents and some de facto stateless persons.21 Exceptionally, if born in Japan and both of the parents are unknown or are without citizenship, a child can acquire Japanese citizenship in application of jus soli because of the principle of avoidance of statelessness (Article 2-3). In the Andrea case, the Supreme Court granted Japanese citizenship to a child born in Japan whose father was unknown and mother missing, thereby expanding the interpretation of Article 2 (3) of the Nationality Act. The Article which stipulates 'both of the parents are unknown' was interpreted as, 'both of the parents are not determined' for the sake of avoiding statelessness.22
5. Four Factors
Let me proceed to explain why Japan opts for a restrictive policy in a certain case, while in others it adopts greater flexibility. In this analysis, we can take account of four factors: (i) the impact of history; (ii) the role played by international human rights; (iii) the need for fresh policies in the face of new forms of cross-border mobility; and (iv) thorny questions regarding the direction in which Japan's migration policy seems to be heading.
20. Those who oppose multiple citizenship in Japan raise loyalty conflicts, clashes in rights of diplomatic protection, and problems related to personal statuses such as bigamy, as arguments. However, one director general of the Civil Affairs Bureau explained that 'there is no precedence of actual problems having been caused by multiple citizenship'. Seiichi Fusamura at the House of Representatives Committee on Judicial Affairs (2 June 2004).
21. Those who are denied the diplomatic protection or assistance of their country of citizenship.
22. Supreme Court, 2nd petty bench, 27 January 1995, 49 Minshu 56.
5.1 The Impact of History
Japan was an emigration country during the early twentieth century, before turning to become an immigration country. In the last two decades, ethnic repatriation by Nikkeijin (foreign nationals of Japanese descent) has comprised one of the major immigration flows in Japan, and ancestry-based migrants are currently a relatively significant group in Japan.
The residence status of Special Permanent Resident, which is reserved for former colonial citizens, resulted from historical circumstances. History, furthermore, was influential in creating the unique discrepancy that exists between permanent residence permission and naturalisation. The residence period requirement for acquiring permanent residence had been 20 years, reduced to 10 years since the 1990s, while that for naturalisation, in stark contrast, has been 5 years since the 1950s. The 1980 'White Paper on Immigration Control' pointed out the Japanese social traits of an 'overcrowded population' and a 'homogenous people' mentality, as reasons for generally 'rejecting permanent residence' (Immigration Bureau, Ministry of Justice 1981, pp. 9-12). In my analysis, most migrants in 1950s-1970s were Koreans, and the Government of Japan hoped that they would choose either to return to their country of origin or naturalise in Japan. Accordingly, the government may have been reluctant to grant permanent residence.
5.2 The Role of International Human Rights
The ratification of the ICESCR and the Refugee Convention ushered in the '82 Regime'. As both treaties aimed for the equality of social rights between citizens and foreign citizens, citizenship clauses were eliminated from most social security laws, even though there still remain some exceptions (see Iwasawa 1998, pp. 167-76; Webster 2011, pp. 587-91).
The protective role of 'best interests of the child' and the 'family reunion', as defined in Articles 3 and 9 of the Convention on the Rights of the Child and Article 23 of the ICCPR, has increased in significance in recent
years. Lower courts have on several occasions decided to reject deportation and grant special permission to stay to irregular residents.23
5.3 The Need for Fresh Policies
Globalisation and the problem of an ageing population are generating a debate on the adoption of a more liberal immigration policy, especially for highly skilled workers, students and nurses/care workers. In May 2012, a points-based system that provides highly skilled foreign professionals with preferential immigration treatment was launched.24 This point system, unlike Canada's, does not channel permanent resident immigration into Japan. Instead, highly skilled foreign professionals receive preferential treatments, including access to permanent resident status after 5 years of residence, few restrictions on the type of work engaged in, and the possibility bringing over parents and a domestic servant under specified requirements. Number of new entrants as highly skilled professionals was only 17 from 7 May 2012 to 6April 2013, although the government expected 2,000. In addition, during this period, number of permissions for changing status to highly skilled professionals was 417. After certain relaxations of the permission requirements in December 2013, the number of permissions for highly skilled professionals was increasing 53 in January, 97 in February, 135 in March and 146 in April 2014. However, Japan has still not been able to attract enough highly skilled migrants because of several social factors (see Oishi 2013).
23. Nagoya District Court, 9 December 2010, 1367 Hanreitimes 124; Tokyo District Court, 22 January 2010, 1353 Hanreitimes 96; Tokyo District Court, 28 August 2007, 1984 Hanreijiho 18; Tokyo High Court, 21 February 2007, see Supreme Court website; Tokyo District Court, 28 March 2006, 1952 Hanreijiho 79; Fukuoka High Court, 7 March 2005, 1234 Hanreitimes 77; Tokyo District Court, 17 October 2003, see Supreme Court website; Tokyo District Court, 19 September 2003,1836 Hanreijiho 46; Tokyo District Court, 12 November 1999, 1727 Hanreijiho 94.
24. The activities of highly skilled foreign nationals are
classified into three categories: (i) academic research activities; (ii) advanced specialised/technical activities; and (iii) business management activities.
Japan is also trying to attract more foreign students. The 'Plan to Accept 100,000 Foreign Students', first set out in 1983, was upgraded in 2008 to an annual target of 300,000 foreign students by 2020. In 2013, there were 135,519 foreign students enrolled in Japanese universi-ties.25 Foreign students are expected to play a part Japan's economic activities and, upon securing employment after graduation, they can change their residence status to become 'specialists' in humanities, international services or engineering. If they cannot find a job initially, foreign students may apply for a 180-day 'Designated Activity' status to prolong their status. Since 2009, students who are unable to find employment within 180 days of graduation can renew this 'Designated Activity' status and continue job hunting for up to 1 year.
Economic Partnership Agreement programs have brought Japan 1,869 nurses and care workers from Indonesia (2008-2013) and the Philippines (2009-2013). However, where these candidates wish to extend their stay beyond the designated terms of 3 or 4 years, respectively, they are required pass the relevant national examinations, which are offered only in Japanese. Because of the difficulty inherent in mastering Japanese, a mere of 96 of 1451 nurse candidates passed the examination in 2009-2013, and only 164 of 417 care worker candidates succeeded in 2012 and 2013. Accordingly, a degree of accommodation has recently become evident, including the use of furigana superscripts in the question papers and an extension to the examination time. Joining the Trans-Pacific Partnership might have some positive effects on the adoption of a more liberal immigration policy in Japan.
5.4 The Effect of Thorny Questions
Thorny questions of Japan's migration and law comprise the still extant cold war in East Asia and ethnic discrimination reinforced by this background and Japan's colonial legacy. The
25. In addition, 32,626 pre-college students attended Japanese language schools. In 2010, the Pre-College Student status was abolished and integrated into the Student status in order to ensure that students complete their studies in Japan.
1951 Immigration Control Order was drafted by Nick D. Collaer, an American adviser at General Headquarters (GHQ), who had been engaged in the US Immigration and Naturalization Service for approximately 30 years (Morris-Suzuki 2006, p. 137). This Order was influenced by the 'cold war' and granted broad administrative discretion to control foreign citizens from the viewpoint of anti-communistic public order protection. Foreign citizens, at that time primarily decolonised Koreans, were fingerprinted under the 1952 Alien Registration Act, a procedure that was influenced by the US Alien Registration Act (the Smith Act) of 1940-1944.
In principle, Koreans and Taiwanese (Chinese) who remained in Japan after WWII should have been given the option of retaining their Japanese citizenship.26 However, in 1952, they lost their Japanese citizenship and the rights inherent therein regardless of their own volition. Since 1965, with the normalisation of relations between Japan and South Korea, only old-comers registered as South Koreans were granted permanent resident status; old-comers registered as Koreans (that is, those pro-North Korea and those not willing to declare an affiliation) were denied this status. Since 1992, Special Permanent Resident status has been granted to all old-comers; however, as of 2012, those registered as Korean still need to apply for re-entry, even where they intend to return to Japan within 2 years.
One of the most critical issues in recent years is that only pupils who attend pro-North Korea high schools are denied the support of a tuition waiver program by the Government of Japan. Moreover, financial assistance tends to be sporadically halted by local governments in the wake of North Korean nuclear tests and other provocative acts. A number of pupils have sued in courts in Nagoya, Osaka, Hiroshima, Fukuoka and Tokyo.
After the general election of 2009, which resulted in the Democratic Party of Japan
26. This option is in accordance with present international human rights law such as the 2000 United Nations' Declaration of Articles on Nationality of natural persons in relation to the succession of States.
becoming the ruling party, the submission of a bill for permanent residents' local suffrage became conceivable. However, one of the governing coalition parties had a negative opinion of the foreign vote and, as the government lost its majority in the Upper Chamber in 2010, prospects for the submission of the bill have dimmed. The Liberal Democratic Party (LDP), the present ruling party, is firmly against the foreign vote. Politicians and citizens, who oppose the right of foreign citizens to vote, are usually wary of the political influence of North Korea and China. If one focuses on the dominium issue of islands, South Korea needs to be added. In 2013, demonstrations took place in Tokyo and Osaka, in which hate speech such as 'Kill', 'Beat out the Koreans' was chanted. The legacy of colonialism and the cold war spurred this ethnic discrimination and continues to pose difficulties for migrant integration policy.
The myth of monoethnic Japan is fundamentally a post-WWII construct (Lee 2001, p. 141). Nationalistic politicians and officials have stressed the ethnic homogeneity of Japan. Ethnic preferences have sometimes been inherent in their policies: the denationalisation of Koreans and Taiwanese; the special treatment extended to Nikkeijin; and the jus sanguinis principle with avoidance of dual citizenship. However, ethnic discrimination should be eliminated.
6. Conclusion
Finally, I would like to offer an overview of the characteristics of Japan's migration and law, comparing them with other developed countries, and noting problems to be solved.
The Migrant Integration Policy Index III comprises the result of comparative research on the integration policies of 33 countries (Huddleston et al. 2011). I participated in this research to evaluate Japan's current situation in relation to this index and to understand Japan's problems regarding migrant integration. Serious problems encountered by Japan are anti-discrimination and education, followed by political participation and citizenship (Kondo, Yamawaki 2014).
On labour market access, Japan fails to fairly recognise foreign residents' skills and certification from their countries of origin. In terms of local public office, there exists the issue of constraints on foreign citizens' appointment to managerial positions (Kondo 2001, pp. 21-2). However, based on a 2005 Supreme Court ruling,27 the 'assumption doctrine' has emerged, in which foreign citizens are assumed not to take up public official positions, but the issue is left to the discretion of local governments.
Regarding family reunion, the ICRRA needs to stipulate a systematic guideline and add residence statuses for common law marriage partners, same-sex partners and parents. The right to autonomous residence permit for partners, adult children, widowed persons, divorced persons and victims of domestic violence should be protected.
Language education for adult migrants is mostly conducted by volunteers. Intensive introductory programs for newcomers are not sufficiently institutionalised. There is no provision of the option for migrant pupils to learn their mother tongues. Cross-cultural education should be incorporated into the school curriculum.
Some local municipalities permit foreign residents to vote in local referendums and sit on consultative bodies (Shipper 2008, pp. 1368). Local voting rights for permanent residents should be introduced (Kondo 2011b).
The residence requirement for permanent residence permission should be reduced to 5 years or shorter, rendering it comparable with the period required for naturalisation. Foreign citizens' exemptions from applications of the Administrative Procedure Act and the Administrative Appeal Act should be abolished, grounds for rejecting permissions should be explained and foreign citizens should be allowed to appeal against administrative instances.
The Japanese Government should examine the introduction of the jus soli system (or even the jus soli system for permanent residents only) or the jus domicili system, and recognise
27. Supreme Court, grand bench, 26 January 2005, 59
Minshu 128.
multiple citizenship. Grounds for rejecting naturalisation should be explained. Even if rejected persons can appeal to the courts, they should be allowed to appeal against administrative instances.
Japan must be the only developed industrialised democracy not to have an antidiscrimination law. Article 14 of Constitution prohibits racial discrimination, but it does not directly affect private space. Instead, Article 90 of Civil Code invalidates discriminatory conduct in private life, and Article 709 of Civil Code provides for compensation for damage (see Webster 2007a, 2007b, 2008). The previous government prepared a bill to establish a human rights relief institution, such as a human rights committee, but it did not pass because the lower Chamber was dissolved in 2012. The enactment of an anti-discrimination law is an urgent task, but the ruling LDP is reluctant to take up the challenge because of the effect of the thorny questions raised above. Prime Minister Shinzo Abe previously in 2005 criticised the bill on the Protection of Human Rights because of the absence of a citizenship requirement to be a member of Human Rights Committee. In objecting to his government's bill at the time, he stated that, 'If a North Korean who belongs to the General Association of Korean Residents became a member of the Committee, there is a risk that he would be the first human rights abuser'.28 However, just after the recommendation to prevent racist attack in Japan from the UN Human Rights Committee, the LDP formed project team to tackle hate speech problems in 2014. Postcolonial prejudice still remains in Japanese society, but international human rights law is important influence on migration law.
November 2014.
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