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SOCIETY > Human Rights

Commentary: Courts should be involved in detention of foreigners

  • July 10, 2019
  • , Mainichi , p. 10
  • JMH Translation

By Tomo Yamaguchi, Real Estate Division, Mainichi Shimbun (formerly at the Society Desk of Mainichi Shimbun’s Osaka Bureau)


The revised Immigration Control and Refugee Recognition Act took effect in April. With this, the ban on accepting foreign workers in the field of manual labor has been removed, and it is expected that the number of foreigners residing in Japan will increase. Some foreigners are subject to deportation and are detained in immigration facilities until repatriation. Over the past few years, the Immigration Bureau has become stricter, and periods of detention are becoming longer. Foreigners can be detained at the sole discretion of the Immigration Bureau. Of course, in some cases the detention is necessary, but an outside agency, like a court of law, should be involved. Debate is in order and should be initiated by politicians.


Detentions are growing longer; some detainees commit suicide out of despair


Since the spring of 2018, I started to hear more frequently from people who assist foreign residents that “detentions seem to have become longer recently.” When I researched the matter, I found that “long-term detainees,” those who are detained for a half year or more, made up 36.8% of all detainees as of December 2017. This is an increase of 9 percentage points from December 2016. Detentions have lengthened further since then, however, and long-term detainees made up 54.7% of all detainees as of the end of December 2018.


One factor behind the increase is the crackdown by the Ministry of Justice’s Immigration Bureau on visa overstays. (Note: The Immigration Bureau was upgraded and is now called the Immigration Services Agency of Japan.) There is a measure called “temporary release” under which detainees can leave the facility for humanitarian reasons even if they do not have a proper residency status. In September 2015, however, the Ministry of Justice (MOJ) confirmed that it rescinds a temporary release and re-detains the person if he or she works illegally.


Foreigners with a proper residency status who applied for refugee status used to be permitted to work after six months had passed since they had submitted their application. In March 2017, however, the MOJ introduced “measures to encourage applicants to return to their home countries,” saying that the Ministry was receiving more and more applications for refugee status where the applicant actually was aiming to work. The MOJ decided to deport individuals who applied three times for refugee status for no special reason. At the same time, they decided to “move forward with [application review] procedures without granting temporary release if there were no special circumstances.”


In January 2018, the MOJ decided to move forward with deportation procedures even for first-time applicants once their residency status expired unless the person could be clearly confirmed to be a refugee.


Some foreigners, however, lodge lawsuits with an eye to having the deportation order rescinded, saying that their application for refugee status is being processed and they cannot return to their home country because they have lived a long time in Japan and have family here. Such people are detained but not sent back to their home country. Once they are detained, it is hard for them to receive temporary release. The result is long-term detention.


Some detainees have been in detention for over five years. There are cases where detainees despair over the long-term detention and commit suicide. Others fall ill during detention because they cannot receive proper medical care. In 2014, two detainees at the Higashi-Nihon Immigration Center died. According to the MOJ, 15 people have died at immigration facilities nationwide since 2007. Of these 15, five committed suicide, and seven died of illness.


A Filipina (age 55) living in the Kinki region has been detained at the Osaka Regional Immigration Bureau (Osaka City) since February 2016. Unlike a convict who has received a sentence and is detained at a prison, she has no idea when she will be able to leave. She says in a  weak voice, “I am anxious. I don’t know when I will be able to leave. I want to see my son. He is my only child. He is 20 now.”


This woman was detained after she was ordered to be deported for ignoring the Osaka Regional Immigration Bureau’s request for her to report to the Bureau. It is true that the woman’s actions were not right, and so it is natural, in a sense, that she was detained. There are other cases where detention cannot be avoided. From the perspective of maintaining public order, I too think it is inevitable there will be a certain number of detentions.


Judgment of whether detention is needed should be checked by an outside body


What I think is problematic is the lack of an external check. For the police or other investigation authority to arrest a suspect, an arrest warrant from the court is required in principle. The warrant is issued after a judge checks the evidence and determines that arrest is necessary. Investigation authorities’ requests for warrants are sometimes reject. The convict’s sentence is determined at a trial after that, and the convict spends time in prison if it is an unsuspended prison sentence.


In contrast, there is no need for the evidence to be checked by a court of law when an Immigration Bureau detains a foreigner. The Immigration Bureau can detain a foreigner with just a “warrant for detention,” which the Immigration Bureau itself issues. If the investigation progresses further and a “warrant for deportation” is issued, the Immigration Bureau can order the person’s deportation. The person is detained at immigration facilities until deportation, and the court is not involved.


Of course, detainees can leave a detention facility if they choose to return to their home country, so it is not the same as being in prison. Like the Filipina mentioned earlier, however, it is not easy for many of the foreigners to return to their home countries because they have family in Japan. Wataru Takahashi, an attorney with the Japan Lawyers Network for Refugees, says, “The current system for detention is problematic in terms of human rights. Investigation by a court of law should be required for detention and temporary release.” I think he is correct.


When I asked an Immigration Bureau official about whether court involvement was needed, the official responded with a dismayed expression, “There is nothing we can do. We just handle things in an appropriate manner within the framework given.” Of course, that is the case. An administrative organ cannot step outside the existing legal framework. That is precisely why politicians should lead the debate on this issue.


The government revised the Immigration Control and Refugee Recognition Act, and the new law came into force on April 1. Until April, visas for the purpose of employment were limited to foreigners with high-level skills. The new law marks a major turning point where Japan will in effect give visa status to manual laborers. If the number of foreigners residing in Japan increases, it cannot be denied that the number with expired visas may also rise. Prime Minister Shinzo Abe has said at the Diet: “I will create a Japan that is respected by countries around the world, a Japan that can attract great talent from around the world.” I completely agree with that principle. If that is the case, however, I expect him to change Japan’s immigration policy into one that is also respected worldwide.

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