English-speaking Japanese lawyer at central Tokyo, handling immigration/asylum cases, family law and employment law matters, and medical malpractice cases.

Immigration/Asylum Cases:

Immigration

There is a law called the Immigration Control and Refugee Recognition Act. This and ordinances issued under it together form a complex of rules and regulations that govern the status of expatriates in Japan.

As long as people from overseas keep to the requirements of the Act and the related ordinances, they do not have to worry about their visa.

Trouble starts when a foreign resident fails to satisfy the Act’s requirement. He/she may not have had a valid visa to start with, or he/she may already be overstaying his/her visa. A foreign resident wants to change his/her visa status or extend its period of validity but the Immigration is reluctant to allow it. Examples of trouble abound. The result: risk of deportation.

The trouble is compounded by lack of transparency and foreseeability, because a) Japan takes a position that whether to allow in a foreigner or not is the prerogative of the state of Japan, and thus a foreign citizen is in Japan on sufferance-which is still the rule rather than exception in the modern world, and b) combines it with a legislative technique of derogation of power (i.e. the Act mentioned above, instead of providing in detail for the conditions for the extension of visa or of change of visa status, etc., gives a vast discretionary power to the Minister of Justice, who in turn as often as not derogates his discretionary power to his subordinates, the Immigration Bureau officials).

Thus, if you are staying in Japan legally but need to renew your visa or change it to some other sort of status, there is little transparency and foreseeability vis-a-vis your status once you fall out with the Immigration and you are faced with fear of deportation. To avoid the resulting deportation, you can take the Minster of Justice to court for the overturn of his (his subordinate’s) decision which is unfavourable to you. But, due to the reasons explained above, the hurdle is high to win the lawsuit. You may well find yourself in a position simply betting that the officials will give you a favourable consideration. Sometimes, it works. But quite often it does not.

If, on the other hand, you are an illegal resident (e.g. you entered Japan on a false passport or you overstayed your visa), your position is almost impossible. Your only hope would be the special leave of the Minister of Justice to allow you to stay on called Zairyu-Tokubetsu-Kyoka. Whether to give this leave or not is almost entirely up to the Minister’s (or his subordinate’s) discretion.* You beg to be allowed to stay on in here, as it were. You may theoretically be able to have recourse to litigation---taking the Minister to court for a judgment ordering the Minister to give you that special leave. The hurdle here is even higher for obvious reasons. But there have been some successful cases.

*However, the Ministry of Justice has now made public the “Guidelines on Zairyu-Tokubetsu-Kyoka” and examples of cases given such special leave. You can look them up in the home-page of the Ministry.

What I would emphasize is to have early legal consultation as soon as you foresee a problem. Whether you are legal or illegal does not matter. Do not wait until it is too late. I have seen so many cases where had there been adequate legal advice given and followed earlier, the foreigner would not be in the impossible position he/she is now in.

I do not intend to scare away illegal residents (let alone legal) by emphasizing the difficulties they face with the Immigration. The more difficult the case, the more required the service of a lawyer.

And I remind you that if you are financially handicapped, there is legal aid available. You should not worry about the lawyer’s fees.

Asylum:

Japan is party to the Geneva Convention relating to the Status of Refugees. The Convention defines the term “refugee” as follows:

Any person who--- owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country---

The Immigration Control and Refugee Recognition Act provides for the procedure for determining if a claimant foreigner is indeed to be recognized as a “refugee” in the above sense.* It is the Minister of Justice who is empowered to make such determination. However, the determination is not left for the Minister’s discretion. He is under obligation to recognize a claimant foreigner as a refugee and accord him/her the protection provided for in the Geneva Convention, if the claimant is found to satisfy the definition of a “refugee” given above.

*Put in a nutshell, you apply for refugee status recognition at a nearby Immigration Bureau. They will conduct fact-finding (they will interview you and put your statement on record) and hand down their decision. If it is not in your favour, you may put in objection against the decision; in which case it will be reviewed by the Minister of Justice and his decision made. If the Minister upholds the initial decision, then you can go to court. Instead of putting in objection, you may choose to go straight to the court, as well.

The problem, however, is that the Minister and the court for that matter tend to construe the definition too narrowly and also put unreasonably heavy burden of proof on the claimant. This largely shows lack of common sense (or scarcity of it at least) based on intimate knowledge of external situations or the realities of the world at large. Though there are small minorities both among the Ministry of Justice officials and judges who are more attuned to the realities of the outside world, their best efforts are yet to bear fruit. The number of people recognized as refugees remain preposterously small. It is a great shame to Japan.

For fairness’ sake, though, I must add that the Minister, instead of according refugee status recognition, rather often give Zairyu-Tokubetsu-Kyoka to the claimant. However, the number of claimants given such treatment is still too small, in my opinion.

Here again, it is imperative that those who consider themselves as refugees have early legal consultation. It is often the case that they only come asking for lawyer’s help when their refugee status recognition claim has been turned down. It is already too late, because by that time, they will have been interviewed by the Immigration and their statement recorded and signed (often with poor interpretation). It is very difficult if not impossible to put right at a later stage---at the litigation stage, for example--- what has already been officially recorded.

If you are financially handicapped, there is legal aid available. You should not worry about the lawyer’s fees.