Blog post by Yu Furukawa, University of Oxford MSc Migration Studies
Complementary protection serves internationally as an alternative refuge for individuals not meeting conventional refugee criteria but deserving similar safeguarding. Reflecting this global trend, Japan initiated its complementary protection system on December 1st, 2023, a first in its immigration legislative history. However, this system exhibits deficiencies and ambiguity in adequately stipulating its beneficiaries, a focal point of contention in this blog.
This blog begins with an overview of Japan’s recently introduced complementary protection, followed by the legislative process leading to its establishment. It then argues that the Japanese version fails to clearly define beneficiaries beyond the Refugee Convention, diverging from international norms. Lastly, it highlights how Japan’s narrowed interpretation of “persecution” within the Refugee Convention may adversely impact acceptance rates for complementary protection.
Overview of New Complementary Protection in Japan
The newly introduced complementary protection establishes relatively stable rights for its beneficiaries, akin to those granted to convention refugees. An illustrative example of this parity lies in the conferred status of “Long Term Resident (teijyusya).” This status, similarly granted to both convention refugees and those eligible for complementary protection, ensures a stable residency for specified durations, typically not exceeding five, three, one, or six months, or as determined by the Minister of Justice. Crucially, it comes with minimal restrictions on employment, aligning with the rights afforded to convention refugees.
Moreover, there exists a relaxation in the prerequisites for obtaining permanent residence. Conventionally, securing permanent residence necessitates demonstrating good conduct and possessing adequate assets or skills for self-sufficiency. However, individuals under complementary protection may, akin to convention refugees, potentially be exempt from the latter requirement, subject to the Minister of Justice’s discretion.
In terms of procedural similarity, applicants for complementary protection utilize the same application form as those seeking refugee status. The form mandates applicants to designate their preference: applying for either (convention) refugee status or seeking complementary protection. Notably, opting for the former leads to an automatic assessment for eligibility under the latter category, but not vice versa.
The Discursive history of Complementary Protection in Japan
At first glance, the rollout of complementary protection might seem reactive, perhaps triggered by the recent Russian invasion of Ukraine. However, the seeds of this system were sown long before these events unfolded. Discussions regarding its implementation began much earlier, primarily stemming from the deliberations of the “Special Committee on Refugee Status Recognition (Nanmin Nintei Seido ni Kansuru Senmon Bukai)” held between 2013 and 2014. Convened by the Minister of Justice, this committee gathered legal experts and practitioners to mull over the potential introduction of complementary protection in Japan. Their final report proposed adopting a system akin to the EU’s subsidiary protection outlined in the 2011 EU Qualification Directive.
Fast forward seven years to 2021, the proposed Immigration Control Law Amendment Bill prominently featured the term “complementary protection.” However, its fate was sealed due to widespread criticism of its other contentious provisions, leading to its eventual abandonment. Two years subsequent to this setback, amidst heightened urgency to safeguard individuals from Ukraine outside the purview of the Refugee Convention, the decision to enforce complementary protection was incorporated into the 2023 Immigration Control Law Amendment Bill, receiving parliamentary approval and slated for enforcement on December 1st, 2023.
Despite this extensive legislative journey, the freshly enforced complementary protection in 2023, and even the 2021 bill, didn’t precisely align with the Special Committee on Refugee Status Recognition’s initial proposal. Specifically, it failed to explicitly define who would benefit from this protection, which I will explore in the following section.
Unpacking Japan’s Complementary Protection: Implicit Definitions
The newly introduced complementary protection in Japan falls short of aligning with the proposal set forth by the Special Committee on Refugee Status Recognition. As a result, it lags behind international standards concerning who qualifies for such protection. In many countries adapting complementary protection, there’s a clear articulation of who can benefit from complementary protection. While variations exist, these countries typically safeguard individuals facing real threats like arbitrary deprivation of life, the death penalty, torture, or cruel, inhuman, or degrading treatment or punishment (McAdam, 2021).
In contrast, Japan’s stance on complementary protection portrays it merely as a shield for those excluded from the Refugee Convention. However, it fails to distinctly outline who falls under this exclusion and what specific attributes define eligibility for complementary protection. The current definition in Japan identifies beneficiaries as follows;
Persons other than refugees under the Refugee Convention, who are at risk of persecution among the requirements for refugee status, such as race, religion, nationality, or membership in a particular social group. (Oddly, membership in a particular political opinion is not included）
This definition notably relies heavily on the Refugee Convention, lacking clarity regarding the defining characteristics and situations that fall within its ambit. In particular, it fails to explicitly acknowledge the significance of factors such as the possibility of torture, death penalty, inhumane treatment, or punishment, which are integral facets considered by other nations. Thus, by defining beneficiaries solely as persons excluded from the five persecution reasons outlined in the Refugee Convention, Japan’s definition of complementary protection becomes overly reliant on the framework set by the Refugee Convention itself. This dependency hampers a more nuanced and explicit delineation of situations warranting complementary protection.
Strict Interpretation about the Notion of Persecution
The passive definition of complementary protections relies heavily on the way Japan’s government and juridical system interpret the Refugee Convention, potentially contributing to the low acceptance rates of complementary protections. This is primarily due to the government’s strict interpretation of persecution, affecting the acceptance rates of refugees in Japan.
The Japanese interpretation of persecution tends to be excessively severe and centered on bodily harm, differing from the broader approach taken by other countries. For example, Article 9 of the EU Qualification Directive views persecution as “sufficiently serious by its nature or repetition to constitute a severe violation of basic human rights,” extending beyond bodily issues to encompass fundamental human rights. However, in Japan’s refugee acceptance practice, persecution is understood as “an attack or oppression resulting in intolerable pain for ordinary persons, typically indicating a violation or suppression of life or bodily freedom.” This interpretation places explicit emphasis on bodily harm, contributing to the strictness and lower acceptance rates of refugees in Japan.
Thus, Japan’s interpretation of “persecution” within the Refugee Convention remains highly restrictive, leading to decreased recognition rates. And again, the eligibility criteria for complementary protection rely on the Refugee Convention, encompassing individuals excluded from it. Consequently, even instances of “persecution” beyond the convention’s predefined five reasons, which would qualify individuals for complementary protection, face significant restrictions in interpretation. This narrow construct not only diminishes refugee acceptance but also might affect the prospects of those seeking complementary protection, as the criteria rely on Japan’s stringent interpretation of persecution.
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