Blog post by Naoko Hashimoto, a Research Affiliate of the RLI. Naoko has a number of years’ practical experience in refugees and forced migration issues, as a staff member of UNHCR, IOM, and the Government of Japan. She is currently undertaking PhD research focusing on refugee resettlement at the School of Law, Politics and Sociology of the University of Sussex, as an International Fellow of Nippon Foundation.*
Since the Japanese Immigration Bureau of the Ministry of Justice announced its asylum statistics for the year 2017 a couple of months ago, a number of articles (such as here, here, here, and here) and statements (such as here and here) have been issued mainly to criticise the extremely low refugee recognition rate, which is less than 0.2% (equating to only 20 refugees in 2017). While each of the articles and statements contained some pertinent points, none of them provided comprehensive analysis as to why Japan recognises only a very small number of refugees. This blog aims to offer a more balanced and nuanced analysis of the situation on the ground, based upon the author’s experience in observing and being directly involved in Japan’s immigration policy for the past two decades.
(Source: the Japanese Immigration Bureau 2018)
As one can see, there are two major momenta for the increase in asylum applications in 2005 and 2010. In 2005, the first major revisions were made to refugee status determination (RSD) procedures as provided in Japan’s Immigration Control and Refugee Recognition Act since its enactment in 1981. These revisions abolished the 60-day limit for lodging an asylum application, introduced a new ‘provisional stay permit’ system for asylum seekers under some conditions, and established Refugee Examination Counsellors system (to be explained below).
In 2010, a new operational rule was introduced to allow all asylum seekers with a valid immigration status to work and earn wages during the asylum procedure, once their asylum application had been lodged for six months. Additionally, in the context of a general immigration policy, the visa eligibility started to be relaxed for several Asian countries since 2011, with a view to promoting foreign tourism in Japan. For instance, from 2014, Indonesian nationals were no longer required to obtain visa for visits of up to 15-days in Japan.
At the same time, due to the precipitating aging and decreasing population, the Government of Japan has been vigorously promoting immigration to Japan, mainly as technical interns and students. The number of new entries under these two visa categories has steadily and significantly increased for the past several years. The below section explains how these immigration and visa policies have also affected the issue of asylum.
Explanations by the Government of Japan
The major reasons and justifications put forward by the Japanese immigration authorities for the low rate of refugee recognition are as follows:
- Japan is geographically far away from the so-called “major refugee-producing countries” in the world, such as Afghanistan, Colombia, Iraq, Somalia, South Sudan, Syria, etc. Among the countries in geographic proximity to Japan, Chinese asylum seekers generally bypass Japan and fly to north American countries, and the preferred destination for the vast majority of North Korean defectors is South Korea rather than Japan (see my previous blog post). Myanmar has always been one of the major origin countries for asylum seekers in Japan, although Myanmar refugees account for a less proportion among all the asylum seekers in Japan in recent years, due to the reasons mentioned below.
- The vast majority of the countries of origin of asylum applicants in Japan are Nepal, the Philippines, Turkey, Vietnam, Sri Lanka, and Indonesia in recent years (see Graph 2), and their asylum claims are allegedly often based upon private issues or economic hardships rather than violation of their civil and political rights. The Immigration Bureau does not make all the asylum application files publicly available – obviously for privacy and security reasons – and it is thus difficult for me to verify this explanation. I could only underline that one should not judge the genuineness of asylum applications simply based upon the countries of origin.
(Source: the Japanese Immigration Bureau 2018)
- The vast majority of the asylum seekers from the above-mentioned Asian countries enter Japan as students or technical interns or short-term visitors and apply for asylum while their residential status is valid. As mentioned above, the RSD process automatically allowed all such asylum seekers to engage in wage-earning employment, until January of this year. The breakdown of the residential status of asylum seekers for the past five years is illustrated in the graph below.
(Source: the Japanese Immigration Bureau 2018)
This fact alone does not tell anything about the genuineness of their asylum claims, and I believe that it is generally good for asylum seekers to be able to enter Japan legally without having to resort to illicit smuggling services. However, the Japanese Immigration points out that the vast majority of technical interns and foreign students enter Japan based upon assistance and/or recommendation from the public authorities in their country of origin, and therefore argues that it would be difficult to imagine how those asylum seekers managed to obtain such public assistance and recommendation if they indeed faced persecution.
- All asylum seekers are allowed to re-apply based upon the exactly same claim for multiple times without any limit. In 2017, the repeat applications amounted to 1,563 among 19,629 cases, five cases of which were applications for the sixth times based upon the same claims. In theory, there is nothing wrong with the possibility for re-application, particularly given that Japan has no other superior adjudicating entity, like the European Court of Human Rights. The increase in repeat applications, however, has exacerbated the already stretched asylum adjudication capacity in Japan, possibly delaying the recognition of genuine refugees.
Major criticisms by non-governmental entities
Meanwhile, the critics (such as the Japan Federation of Bar Association, the Japan Lawyers Network for Refugees, and the Japan Association for Refugees) focus on different problems, some of which are as follows:
- The Japanese courts as well as the Immigration Bureau have employed a strict interpretation of the notion of persecution. According to the Japanese jurisprudence, persecution is understood as ‘attack or oppression which brings about pain intolerable for ordinary persons, which normally signifies violation or suppression of life or freedom of body’. This interpretation is obviously much stricter than the interpretation employed by other industrialised countries. For instance, Article 9 of the EU Qualification Directive provides that persecution means ‘sufficiently serious act by its nature or repetition as to constitute a severe violation of basic human rights’.
- The Japanese courts and Immigration Bureau employ higher standards for the burden of proof and probabilities / likelihood of persecution, which is arguably as high as those of criminal cases. It is generally understood that civil cases are to be judged based upon ‘proof on a balance of probability’ (i.e. more than 50% of chance) and criminal cases upon ‘proof beyond a reasonable doubt’ (i.e. 70-80% of chance). Based upon this general benchmark, several countries with a longer history of dealing with many asylum cases have established relatively similar asylum adjudication standards. They are: ‘reasonable possibility’ (USA); ‘reasonable chance’ (Canada); ‘reasonable degree of likelihood’ (UK) and ‘real chance’ (Australia and New Zealand). Meanwhile, the Japanese Immigration Bureau claims that such a notion of “standards for burden of proof” does not exist within Japan’s RSD procedure, and therefore it is not possible to compare with other countries’ standards. The critics point out that Japan’s RSD procedure does not officially take into account the notion of ‘benefit of the doubt’, and the UNHCR’s RSD Handbook which has no legal binding power is mentioned as a reference only, if ever.
- The Refugee Examinations Counsellors (REC) system is defunct. When introduced in 2005, the new REC system raised hopes for a reform of the asylum situation, but three major challenges were soon revealed. First, the RECs are not completely independent from the Japanese Government, as the Immigration Bureau serves as its Secretariat. Second, the expertise concerning RSD among those selected for REC members (initially 20 individuals but now 90 individuals) significantly varies, to say the very least, and it is uncertain if training upon appointment as REC is sufficient to acquire even the basic knowledge and skills required to execute the extremely complicated RSD procedure. Third, opinions submitted by RECs are not legally binding. Although the Immigration Bureau fully respected their opinions and turned over their initial denial decisions for the initial years, it started keeping its initial denial decision even if the REC recommended refugee recognition since 2013.
- Other criticisms include: the legal requirement for asylum seekers to prove that they were individually targeted; that the agents of persecution of recognised cases are predominantly state / state-affiliated entity; and that persecution (as understood by the Japanese Government and courts) is almost always based upon political opinion rather than the other four possible grounds outlined in the Refugee Convention. However, there have been some improvements with regards to the latter two points in recent years.
On balance, all of the factors mentioned above by both sides contribute somewhat towards the very low number of refugees recognised in Japan. The only difference being the degree to which each of the factors is significant, depending upon the general views and positions of individual observers. In my opinion, it is in any case true that only a relatively small number of asylum seekers choose and/or reach Japan and apply for asylum; 20,000 applications are just a fraction of 890,000 applications Germany received in 2015, for instance.
Japan is not a popular destination country for many asylum seekers, probably due to geographical, social, cultural, and linguistic reasons, as well as the strict RSD standards. In fact, this has been the case since the Indo-Chinese refugee crises era: the preferred destinations of Indo-Chinese refugees were predominantly the so-called Western countries mainly due to the family ties. The unpopularity of Japan among refugees has persisted with the asylum trend even after Japan acceded to the Refugee Convention in 1981, as demonstrated in Graph 1, although some critics may point out that it is because the Government deliberately made it extremely difficult to access the asylum procedure. Even with the recent soar of the numbers of asylum applications, still on a global scale, only a relatively small number of individuals with well-founded fear of persecution seem to proactively and voluntarily choose Japan as a destination country.
The Way Forward
Given the overall asylum situation and surrounding debates as summarised above, the most viable and realistic options for Japan to share their fair burden in the global refugee protection regime in my opinion would be: (i) to promote more resettlement; and (ii) introduce a new status equivalent to the ‘subsidiary / complementary protection’.
As regards the first point, Japan decided to launch a resettlement programme in 2008, but the annual quota is only 30 individuals, which is disproportionately miniscule, given the country’s economy, size of the population (which is declining), and low unemployment rate. The eligibility criteria for resettlement should also be relaxed, as it currently requires refugees to constitute a family and demonstrate prospect for self-sufficiency, thereby excluding those with handicap or health issues. Having worked for the Japanese Government myself, I believe that the resettlement procedures which allow the receiving Government (Japan in this case) to almost completely control the entire process would sit well with the mentality of Japanese government officials.
In terms of subsidiary / complementary protection, the Japanese Government currently allows some of those asylum seekers whose claim would not amount – in the eyes of Japanese Immigration officials – to the notion of persecution, to stay in Japan on humanitarian grounds (see the orange line in Graph 1). For instance, all Syrian asylum seekers (unless recognised as refugees) have been given this special permission to stay on humanitarian grounds. Those with this status can work, have access to the National Health Insurance, the National Pension Plan, and the Welfare Allowance, and have the same education rights as Japanese nationals, among other rights and entitlements.** The biggest difference between those with this humanitarian status and those officially recognised as Convention refugee is the access to the whole range of integration assistance. Those with special permission to stay on humanitarian grounds cannot enjoy public integration assistance, which would have a significant impact on the degree and speed in which they could become full and active members of Japanese society. In fact, the possibility for introducing a new protection status was already included in the official proposals in 2015. I hope it will be materialised sooner than later, given the increasing number of people fleeing generalised violence who would not be able to enjoy asylum according to the current definition of refugees under the 1951 Refugee Convention, and the contribution that Japan could potentially make to this global issue.
* The author is scheduled to deliver a talk on Japan’s refugee protection issues at the Daiwa Anglo-Japan Foundation in London on Thursday 24 May. For more details, see here.
** See Naoko Hashimoto ‘Stratification of Rights and Entitlements among Refugees and Other Displaced Persons in Japan’, in S. Takahashi and A. Kihara-Hunt (eds.) Current Human Rights Issues in Japan: Tribute to Sir Nigel Rodley, Routledge 2018 (forthcoming)
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