- On September 28, 2020, the United Nations Working Group on Arbitrary Detention (hereinafter referred to as “Working Group”) sent an Opinion to the Government of Japan stating that the measures taken in Japan against two foreign nationals, to whom deportation orders had been issued, amounts to arbitrary detention, and the Opinion was subsequently released.
While the Opinion of the Working Group is not legally binding, as a result of an examination of the Opinion conducted by the relevant Japanese ministries and agency, the content of the Opinion was found to be based on factual errors and clear misunderstanding of the immigration control and residency management system in Japan. This has the potential to cause broad misunderstanding of the Japanese legal system and its operation, and may give rise to negative responses both internationally and domestically.
- Therefore, on Saturday, March 27 (Friday, March 26, local time in Geneva) this year, the Government of Japan raised an objection against the Opinion of the Working Group and submitted its views with detailed information on the facts.
- The Government of Japan emphasizes once again that the detention under Japan’s immigration and residency control administration is properly implemented in compliance with due process under the Immigration Control and Refugee Recognition Act (hereinafter referred to as the “Act”), and is not in contravention of international human rights treaties which Japan has ratified, and accordingly, is not arbitrary detention.
(1) The Act stipulates that detention may be carried out based on a written detention order or a deportation order issued by a supervising immigration inspector, and that a supervising immigration inspector may grant provisional release either upon application or ex officio taking into consideration the particular circumstances of the person subject to detention, evidence produced in support of the application for provisional release, the character of the person and other factors. In administrative practices of immigration control and residency management in Japan, taking any particular circumstances of each case into consideration for assessing the risks of flight, concealment of evidence, and illegal work, provisional release is granted for the persons for whom detention is not deemed necessary from the outset of deportation procedures. In this case, the system proceeds without actually detaining such persons.
(2) In addition, detainees who are dissatisfied with the permission of their detention and the refusal of their provisional release by a supervising immigration inspector may, at any time, file an administrative action with a court as a means of appeal. Moreover, in the case where the detention is conducted by a written deportation order, detainees may file an administrative action contesting the validity of the order itself, and also file a petition with the court requesting the suspension of detention. They may also file a separate action requiring provisional release. Therefore, an opportunity for judicial review or remedy is guaranteed.
(3) Furthermore, as mentioned above, detainees may apply for provisional release to the supervising immigration inspector at any time, and therefore administrative remedies are also guaranteed.
- The following shows that the Opinion of the Working Group is based on factual errors.
(1) The Working Group rendered an opinion that the detentions of the two foreign nationals X and Y were conducted without taking into consideration their individual circumstances. However, decisions on whether to detain them were made after careful consideration of their individual circumstances detailed below, which lead to the evaluation that decisions on granting provisional release should be made in a careful manner.
(2) The Working Group rendered an opinion that both of the foreign nationals were detained without an opportunity for administrative or judicial review or remedy. However, both of them filed administrative actions with the court asking for the mandating of an extension of their provisional releases. They also applied for provisional release and were granted it. Thus, they were provided opportunities for administrative and judicial review and remedy.
- Circumstances of foreign national X: his disappearance after his examination into deportation procedures without detaining him, his non-compliance with the conditions of the previous provisional releases, and his behavior during detention
- Circumstances of foreign national Y: his criminal records during the previous provisional releases and his behavior during detention
In addition, as a result of their repeated refusal to eat during detention, both foreign national X and Y were provisionally released taking into consideration their respective health conditions and detained again after they had recovered their health.
(3) The Working Group also expressed its view that the detentions of both foreign nationals were sanctions and discriminatory treatments against the exercise of their legitimate right to seek asylum, but as mentioned above, their detentions were implemented taking into consideration that granting them provisional release was deemed unsuitable and therefore their detentions were not sanctions or discriminatory treatments in response to their applications for recognition of refugee status.
In fact, both foreign nationals were provisionally released in consideration of the fact that their deportation was suspended as a legal effect of the application for recognition of refugee status. It should be noted that, from the start of the deportation procedures to the present time, both of them have applied for recognition of refugee status multiple times and this makes it legally impossible for them to be deported, resulting in a longer period for which they are treated as deportees.
- For the reasons above, the Government of Japan considers the Opinion of the Working Group to have been based on a clear factual misunderstanding of the Japanese legal system and its operation, and is utterly unacceptable. The Government of Japan is currently promoting the acceptance of foreign nationals through the Act and pursuing efforts aimed at realizing a society in which Japanese and foreign nationals coexist while respecting each other and observing rules. From the viewpoint of harmonious coexistence based on rules, it is necessary to further strengthen efforts to promptly and properly protect refugees and other persons who are in need of asylum, while foreign nationals who have violated Japan’s laws and regulations and who have been subject to a decision for deportation in compliance with due process should promptly be deported under the authority of the State. Based on these points of view, the Government of Japan has been striving to guarantee due process and implement appropriate operations under the Act and other relevant legislations, and will continue to consider how to realize a harmonious society of coexistence with foreign nationals.
[Reference] The Working Group on Arbitrary Detention The Working Group on Arbitrary Detention is a group of experts established by a resolution of the United Nations Human Rights Council to investigate cases of arbitrary detention. The Working Group examines whether an individual case falls under arbitrary detention, and if it is considered to fall under arbitrary detention, the Working Group adopts its opinion and publishes it. The views of the Working Group are not the views of the United Nations or its bodies, including the Human Rights Council, and are not legally binding on Japan.