Article

Summary of the Legal Positionof Migrants in Japan1
Atsushi Kondo

1. Introduction: Brief History of Immigration Flows

Japan is an island country and immigration flows were not so frequent in thepast, yet are now rapidly increasing in number. In Japan, the evolution of immigration flows can chronologically be divided into six periods after the major isolation period (1639-1853). American Commodore Perry with his frigates, socalled the "Black ships" exerted great pressure on Japan to open up for foreign
trades and cultures. The Japanese government at that time concluded treaties ofcommerce also with other countries and regulated immigration.
Before World War Ⅱ, Japan was referred to as an emigration country (18531945). Some 777,000 emigrants moved mainly to the USA and Latin Americancountries. However, after Japan colonised Taiwan in 1895 and Korea in 1910 andestablished the Puppet State of "Manchuria (north east of China) in 1932, a lotof these people migrated. This was basically considered to be an internal migration, not immigration, as all migrants were Japanese subjects. For instance,some of the Korean migrants chose to move to Japan, while others were forced
to do so, in some cases against their will.
After World War Ⅱ, the Supreme Commander of Allied Powers strictly controlled immigration and emigration (1945-1952). Japan abandoned all of its
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colonies. When the war was over, about 2.3 million Koreans were living ingovernment retained strict control of immigration but accepted refugees andJapan. About 75% of them returned to their original countries, but a large num-foreigners' rights improved.

ber of them could not help remaining in Japan partly due to the Korean War

Despite the revised Immigration Control Act in force in 1990, Japan's tradi-from 1950 to 1953. Under the 1947 Alien Registration Ordinance, Korean andtional policy of not opening the labor market to foreign unskilled workers re-

Taiwanese residents were ordained as aliens. This Ordinance became the Alien

mained basically unchanged. Yet three loopholes were established in recent

Registration Law when the San Francisco Peace Treaty took effect in 1952.

years (1990-present). First, workers of Japanese origin are allowed to work

Pursuant to the 1952 Notice of the Ministry of Justice, Korean and Taiwanese

without any restriction on activity through the "front door". This ancestry-

residents lost Japanese citizenship without agreement, and this excluded thembased policy must be connected to the history from an emigration country to anfrom various social welfare benefits.

immigration one and the idea of being an ethnic nation-state. Second, trainees

During the rapid economic growth of the 1950s and 60s, the Japanese worked

are also employed as unskilled workers through the "side door". The formal andlong hours. Japanese industries utilized homemakers, students and elderly stu-nominal purpose of trainees is to acquire technology, skills or knowledge at a

dents as part-time labor, had large domestic migration, and managed to run the

public or private organisation, however, the trainee system is seen as an evasion

automation systems without admitting foreign labor entering the countryof the law and a disguise of measures to recruit cheap unskilled workers. Third,(1952-1981). The Japanese government's attitude toward foreign workers has

it was said that undocumented foreign workers were present in Japan throughsince been basically twofold:2 1) foreign workers in professional and technicalthe "back door" and satisfied the labor needs of small and medium-sized compa-

fields are accepted as much as possible; 2) no unskilled foreign workers are ac-nies.5 Presently, the Government is trying to reduce the number of undocu-

cepted, lest a far-reaching impact occur to Japan's economy and social condi-

mented foreign workers and increase highly skilled ones.
According to the 2006 UN Population Division Report,6 around 191 million

tions.
However, since the 1980s Japan underwent for the first time in its history a

persons reside in a country other than where they were born (or they have thevery large number of foreign residents. The Plaza Agreement on the revaluation

citizenship), which amounts to about 3 percent of world population. Almost oneof yen in 1985 caused Japan's bubble economy, labor shortage and the necessityof every 10 persons living in the more developed regions (Europe, Northern

for migrant workers. Since the ratification of the International Covenant on

America, Australia, New Zealand and Japan) is a migrant. However, the ratio

Economic, Social and Cultural Rights in 1979 and the accession to theof foreigners to the entire population is less than 2 percent in Japan. Japan can

Convention relating to the Status of Refugees (hereafter referred to as thebe regarded as a potential immigration country in view of the projected future

Refugee Convention) in 1981, many social security laws have been revised andlabor shortage and aging.

social rights were guaranteed for the refugees and aliens who had settled inJapan.3 The recent Japanese immigration policy was altered under new 1981
Immigration Control and Refugee Recognition Act (hereafter referred to as the
Immigration Control Act).4 During this period (1981-1990), the Japanese
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Summary of the Legal Position of Migrants in Japan
Table 1

Types and Residence-Status of New Entrants and Residents (2005)

Types

2. Legal Concepts Used in National Legislations

説

Permanent
Residents

Residence-status
Special permanent residents＊
Permanent residents＊

New Entrants

Residents

Number％Number

％−−451,909

22.5

−

−

349,804

17.4

Spouses or child of Japanese nationals

24,026

6.4

259,656

12.9

Reunification Spouses or child of permanent residents

990

0.3

11,0660.6

15,027

4.0

86,055

4.3

Specialized and Entertainers

99,34226.7

36,376

1.8

Technical labor Specialists in humanities or international service

6,641

1.8

55,276

2.7

Intra-company transferee

4,184

1.1

11,977

0.6

Engineers

4,718

1.3

29,044

1.4

Instructors

2,954

0.8

9,449

0.5

ing the intention of trainee system, most trainees might be called "temporary

Professors

2,253

0.6

8,406

0.4

working migrants" in practice. "Foreigners based on status" are spouses or chil-

Skilled labor

3,059

0.8

15,1120.8

Religious activities

846

0.2

4,588

0.2

dren of Japanese nationals, spouses or child of permanent residents and quasi-

Researchers

607

0.2

2,494

0.1

permanent residents of ethnic repatriates (up to third generation descendants

Investor and business manager

604

0.2

6,743

0.3

Artists

245

0.1

448

0.0

of overseas Japanese, most of whom arrived from Latin America). However,

Journalists

248

0.1

280

0.0

most ethnic repatriates are also "working migrants".

Legal and accounting service

2

0.0

126

0.0

Medical service

2

0.0

146

0.0

Trainees

83,31922.4

54,1072.7

Ethnic repatriates Quasi-permanent residents(& Refugees etc.)

33,756

9.0

265,639

13.2

Types of Migrant
The Ministry of Justice categorizes the entry-purposes by the residence-

FamilyDependent

status as four kinds (temporary visitors, foreigners for working, foreigners forstudy, foreigners based on status).7 However, this report had better not to covertemporary visitors. "Foreigners for working" refer to specialized and technicallabor. "Foreigners for study" are students and trainees. Nevertheless consider-

If I classify the types of migrants by the sorts of residence status, there arenine types (permanent residents, family reunification, specialized and technicallabor, trainees, ethnic repatriates, refugees, asylum seekers, students, and others). Table 1 shows the classification by residence status and types of new entrants and residents. In 2005, the number of foreigners entering Japan was

Trainees

Asylum seekers Temporary Refuge
Students
Othersabout 7.5 million. If we exclude re-entrants and temporary visitors from them,
the number of new entrants was about 372 thousand. The number of resident
aliens who stayed or would stay over ninety days in Japan and registered at themunicipal office was about 2 million.
Total

Working Migrants
Indeed, the Immigration Control Act defines "working migrants" into fourteen categories of residence with permission to work. The Ministry of Foreign
Affairs calls them Working Visas.8 However, the numbers of the entrants who
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0

0.0

30

0.0

College students

23,384

6.3

129,568

6.4

Pre-college students

18,0904.8

28,147

1.4

Diplomats and Officials＊＊

27,624

7.4−−

Designated Activities

16,9584.5

87,324

1.3

Cultural Activities

3,725

1.0

2,949

0.9

Temporary Visitors−−

68,747

3.4

Without Acquiring Status of Residence＊＊＊−−

20,736

1.0

Others＊＊＊＊−−15,3530.8

100.0 2,011,555

100.0

372,604

Source: Ministry of Justice.
Notice:*No entrants can be granted the statuses as special permanent residents and permanent residents.
**Diplomats and Officials are not required to register in the Alien Registration system.
***Without acquiring a status of residence, some persons happen to stay after theirrenouncement of Japanese citizenship, birth, or other cause.
****Others include registered irregular residents.

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belong to the categories above are rather limited except for those to the category of entertainers.9

説

permanent residents and they also may be classified as family reunifications.
Some ethnic repatriates are called Returnees from China. In 1972, Japan andOn the contrary, a lot of ethnic repatriates enter and reside in Japan. The

China re-established their diplomatic ties. The Japanese government decided in1990 amendment of the Immigration Control Act introduced the special resi-

1973 to support those who want to return to Japan, and to grant full-scale sup-dence status with permission of work (quasi-permanent residence) for the sec-

ports for returning to Japan in 1974 when the transport by air between Japan

ond and third generation Nikkeijin (Japanese descendants) and their families.

and China was established. From 1972 to 2005, 20,150 returnees from China have

Although an official rationale for granting residence-work status to theresettled in Japan, and 182 returnees from Sakhalin and other places in the for-

Nikkeijin is to provide them with opportunities to visit relatives in Japan, there

mer USSR from 1989 to 2005 as well.

is also the hidden intention to stop further entrance of undocumented foreign
workers and to solve the problem of a serious labor shortage at that time. That
is why this was called the "front door" for the working migrants.

Indo-Chinese Refugees and Displaced Persons
The Indo-Chinese refugees and Displaced Persons from Viet Nam, Laos andAdditionally, there is a side door for trainees. As trainees (1 year) and as

Cambodia were accepted by the Cabinet Understandings. From May 1975 totechnical interns (2 years),10 foreigners can stay for a maximum of three years.

January 1994, Japan provided temporary asylum to 14,332 persons, including

The aim of the trainee and technical intern system is the transfer of technology

564 children born in Japan. Since 1994 temporary asylum permission for asylum

to developing countries, but the reality in many cases is a kind of rotation sys-

seekers from Indo-Chinese countries had stopped and the Convention refugee

tem of introducing cheap unskilled workers from abroad.

recognition procedure has been applied to them. From 1978 to January 2002,

Furthermore, that is a back door for irregular residents (illegal residents).11

10,941 persons were permitted to resettle in Japan.

Although the number of overstaying persons and irregular entrants was estimated about 170,000 and 30,000 in 2007, it is difficult to examine their exact number. Most of the irregular residents enter Japan regularly as tourists, and thenwork irregularly and overstay.

Refugees
Recognized refugees are normally granted residence permission of quasipermanent residence of 1 or 3 years, renewable. Recently, asylum seekers fromAfghanistan, North Korea and so on have become an issue of crucial concern. In

Resettlement

the parliamentary discussion in October 2001, it was pointed out that the num-

The statuses as spouses or children of Japanese nationals and those of perma-

ber of recognized refugees was too small in comparison with other countries.12

nent residents were newly introduced in the 1990 amendment of the Immigra-

The reputation of Japan's strict check of refugee recognition has possibly dis-tion Control Act. The Act does not refer to the concept of family reunification,

couraged refugee applicants. The 2004 Amendment of the Immigration Control

but these statuses can be classified as resettlement for family members of citi-

Act recognized the "Refugee Examination Counselors" as a third party to keep

zens or permanent residents. Additionally, it should be noted that some of theimpartial appeal procedures for refugee recognition (Article 61-2-2-10),13 andspouses or children of the ethnic repatriates are granted the status as quasi-

abolished the "sixty days rule" which has limited refugee recognition by

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restricting refugee applications within the fixed period after the entrance inJapan (Article 61-2-2-1). On the contrary, it introduces the "safe third country

3. Acquiring the Status of Migrants

regulation" which refuse refugee applicants who have entered Japan directlyfrom a territory where his/her life was unlikely to be in danger (Article 61-2-22).

Sorts of Residence Status
As shown in the table 1, there are 23 sorts of residence status under which activities and residential terms are restricted. The detail criteria for their permis-

Asylum Seekers

sions are regulated by the Ministry of Justice Ordinance (No. 16 of May 24,

Before 1994, 5,668 Boat People from Vietnam had been permitted the tempo-

1990). Furthermore, there are 4 kinds of residence status under which activities

rary refugees; however, there have been no or just a few cases of such permis-

are unrestricted. Among them, quasi-permanent residents, Spouse or child of asion since then. Concerning the "asylum seekers" who applied for the recognition

Japanese national and Spouse or child of permanent residents are required ofof refugee status and were waiting for the decision, the Immigration Control

the renewal of residence period. Only Permanent residents are unrestricted re-

Act had no residence status of provisional stay for asylum seekers. The status

garding both activity and residence.

of such asylum seekers was the same as that of undocumented migrants.

In order to clarify the differences of the former 23 statuses and the latter 4

However, after the critical discussion on Japan's negative attitude towards refu-

statuses, they are categorised as "permissible intake" and "permissible establish-

gees and asylum seekers, the 2004 Amendment of the Immigration Control Act

ment" groups.14 Persons with the latter 4 statuses (and special permanent resi-

provided for the permission for a provisional stay (Article 61-2-4).

dents) are authorised to work not only in skilled but also unskilled jobs.

There were 4,882 applications at the end of 2006 under the operation of the
Refugee Recognition system from 1982, of which 410 were recognized. In addi-

Requirements for Permanent Resident Permissiontion, as of the end of 2006 from the end of 1991, a total of 434 foreigners wereSince 1991, persons from former colonies and their descendants have been

granted special residence permission on humanitarian grounds such as a diffi-

granted special permanent resident status in accordance with the Special law on

culty in going home due to the situation in their country yet they were not rec-

Immigration Control. Under Article 22-2 of the Immigration Control Act, theognized as refugees. According to the information on the applicants for

permission for a change to the status of permanent resident is left to the discre-provisional residence permission in certain countries, the number of applicantstion of the Ministry of Justice when the applicant adjusts to the benefits ofin 2006 was 954, which was 2.5 times higher than in the previous year, however,Japan and fulfils two legal requirements: 1) good behaviour and conduct; and 2)

only 34 people were granted refugee status. Therefore, it is not clear that recog-

sufficient assets or skills to make an independent living. There are other practi-

nized refugees will increase in Japan.

cal conditions deriving from the administrative interpretation of Japan's benefits: 1) in cases of a child of Japanese or permanent residents, a 1-year
continuous residential term is required; 2) in cases of a spouse of Japanese or
permanent residents, a 3-year residential term is required; and 3) in cases of57−3−219 (名城 '08)

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quasi-permanent residents and refugees etc., a 5-year continuous residential

foreigners have human rights as a rule with the exception of rights which byterm is required. Otherwise, a 10-year continuous residential term is necessary

their nature must be limited to Japanese citizens. The negative aspects are thatto be allowed a permanent residence permit.15

it deprived foreigners the right to political expression by its inherent nature,and citing this leading case, Japanese Courts ruled frequently that foreigners'

ID Cardhuman rights should be restricted within the residence status in the

Under the Alien Registration Law, foreign residents are required to register

Immigration Control Act.

their status and residence at the municipal office of the city, ward, town or vil-

Rights of foreigners differ according to their statuses. They are categorizedlage they reside, within 90 days of landing, or within 60 days after the birth ofto the following three entrance gates model.18 The first gate is passport and visa

a child or renouncement of Japanese citizenship (Article 3). All the registeredcontrol for the status as non-permanent (regular) residents. The immigrants

foreigners of 16 years of age or over are required to carry the certificate of alien

staying without satisfying the requirements of this gate are called irregularregistration (ID Card) with them and present it to officials (Article 13).

residents. The second gate is the permission for the status of permanent resi-

Prior to 2000, foreign residents were required to provide their fingerprints fordents. The third gate is naturalization for the status as citizens. The Chart 1

the confirmation of their identity.16 This was stipulated in the Alien

shows the four statuses of immigrants and three gates in a receiving country.

Registration Law. Facing a number of the legal cases involving foreigners re-

The more improved rights one enjoys, the further one goes from the first to thefusing to be fingerprinted, the Japanese government was forced to amend thefourth. Permanent residents enjoy social and civil rights but usually their po-

Alien Registration Law numerous times. In 1999 an amendment bill of the Alien

litical rights are limited. Even irregular residents enjoy most of the civil rights

Registration Law demands the entire abolishment of fingerprinting. However,such as the access to the court but limited are the right to reside and the free-the 2006 amendment of the Immigration Control Act for the sake of preventing

dom to choose their occupation.

terrorism reintroduced the fingerprints and (facial and iris) authentication
technology for personal identification at the time of landing with the exception

Chart 1 Four statuses of immigrants and three gates in a receiving country.

of special permanent residents, young persons under 16 years, diplomats and of-1) Irregular Residents ＜ 2) Non-Permanent Residents ＜ 3) Permanent Residents ＜ 4) Citizens) Regularization

ficials.

) Permanent Residence Permission) Naturalization

In general,19 there are few restrictions on foreigners in the acquisition of

RightsThe Supreme Court judgement on October 4, 1978 (the McLean Visa Renewal

rights pertaining to property and establishing their own enterprises. Recently,Case)17 ruled that "according to international customary law, a state can decidemany local governments opened doors for permanent residents to general ad-

on what kind of conditions to accept a foreigner in its own country, so long as

ministrative officials though managerial positions are still excluded and thethere is not a special treaty on this matter". Regarding to foreigners' rights, theSupreme Court confirmed this exclusive practice (Supreme Court judgement,

positive aspect of this judgement is that it established the principle that

Jan. 26, 2005). The Supreme Court decided that permanent residents' local

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suffrage does not violate the Constitution (Supreme Court judgement, Feb. 28,

have the obligation to make their children receive compulsory education in ele-

1995) and about half of the local governments have asked for it , but the rulingmentary schools and lower secondary schools. Some local governments still ex-

party LDP is against it for reasons of its nationalistic ideology. In 2002-2006,

clude children of undocumented residents from the schools but many local

more than two hundred local governments passed the regulations that allowed

governments consider that "primary education shall be compulsory and avail-permanent residents to vote at local referendum.

able free to all" pursuant to Article 13 of the International Covenant on

Since the accession to the Refugee Convention in 1981, citizenship requirements have been abolished in social security laws such as the National Pension

Economic, Social and Cultural Rights and Article 28 of the Convention on the
Rights of the Child.

Law, the National Health Insurance Law, the Child Rearing Allowance Law and
the Child Allowance Law.20 However, there still remains a problem with the na-

4. Guarantees of Migrants' Status

tional pension system, for example, foreigners, 60-years or older at the time ofrevision of the National Pension law (1986), could not receive the old-age pen-State Support

sion. In addition, the 1990 notice from the Ministry of Welfare limited the

The Ministry of Justice deals with immigration control but there is no com-

"Livelihood Protection" afforded to foreigners to those in Annexe Table Ⅱ,

prehensive Agency in charge of integration policy. In 2006 the Ministry ofnamely, permanent resident, spouse or child of a Japanese national, spouse orInternal Affairs and Communications afforded to local governments the Modelchild of a permanent resident and quasi-permanent resident.

Plan for the Multicultural Coexistence Promotion in Local Communities.22 In

In the case of an irregular resident, the Medical Treatment of Atomic Bombaddition, the Cabinet established general policy on 'Foreigners as Dwellers" inVictims Law has characteristics of humanity and national compensation, thus,

2006 and the Ministry of Justice will reform the alien registration system andthis Law is applied to irregular immigrants (Supreme Court judgement, Mar.

establish a new data system for foreign residents in 2008.

30, 1978). In practice, free maternity leave is guaranteed for irregular residents(Article 22 of the Child Welfare Law), as is medical treatment for their premature babies (Article 20 of the Maternal and Child Health Law).21

Local Government Support
Most of the integration policies are charged by local governments.23 The appeal for tabunka kysey24 (variously translated as multicultural living-together,

Obligations

multicultural symbiosis or multicultural coexistence) is becoming a slogan of

Foreign residents who have lived continuously in Japan for 1 year or moretheir integration policy in the 2000s. Responding to the model plan of themust pay Income and Citizen Taxes of the same rates as Japanese residents.

Internal Affairs and Communications, many local governments have issued

Other foreigners, with the exception of tax exemption due to a tax treaty, have,plans or guidelines with three parts: 1) communication support; 2) livelihoodin principle, a 20% tax imposed on their income.

support; and 3) development of a tabunka kysey community including social

In general, foreigners must strictly obey the laws as well as citizens. However,in 1953, the Ministry of Education gave notice that parents of foreigners do not
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participation of foreign residents. In 2007, Miyagi prefecture enacted the local
government regulation on promoting tabunka kysey community.
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説Many local governments afford publications in foreign languages of daily life

exchanging programs since 2001 and friendship programs since 2003 for build-guides to foreign residents. Japanese language classes provided by local govern-

ing a bridge between the returnees and the original residents of the community.

ments charge them very little and some are free. In some prefectures and cities

From the viewpoint of privileged immigration policies, Aussiedler in Germany

with many foreign residents, free counselling, consultation on legal matters,

are often compared with Nikkeijin in Japan though they are different in someand health checks are rendered to them by International Exchange Associations

respects of integration policy.28 We must pay attention to the fact thator NGOs.

Aussiedler have similarities with Returnees from China, as far as both are clas-

Foreigners, registered in the Alien Registration system to be authorized forsified as privileged integration policy.

at least one year's residence, can rent public housing. However, foreign residents
for seeking private rentals are in many cases still refused, therefore, some local
governments have established a guarantee system to assist foreigners who areunable to find a guarantor on their own.

Program to Refugees
Recognized refugees may benefit under the National Health Insurance Law
and receive welfare assistance under the Livelihood Protection Law. The Statesponsored Indo-Chinese refugee resettlement program started in 1979. The

Program to Returnees from China

Refugee Assistance Headquarters was set up under the Foundation for theJapanese who had remained in China after World War Ⅱ and return home

Welfare and Education of the Asian People and was entrusted by thewith their family members tend to face various problems in terms of Japanese

Government the work to help Indo-Chinese refugee to resettle in Japan. Since

language, living and employment after they resettled in Japan. To cope with

2003, the Government expanded the support to the Convention refugees to pro-such problems, since 1984, a program has been implemented to accommodate themote their integration into Japanese society. The refugee resettlement program

returnees families in the Resettlement Promotion Centers for Returnees from

includes Japanese language education, social adaptation training, job referral

China25 for four or six months26 immediately after they returned to Japan.

service and financial support. The participation in this program can last up to

Meanwhile they were given there lessons of basic Japanese and basic guidance

6 months. During this period, the beneficiaries of the program can receive fullon living. After the four or six months stay in the Centers, another program

board accommodation at the International Refugee Assistance Center of thewas started since 1988. In this program they commute from their home to the

Refugee Assistance Headquarters.

Training Centers for Returnees from China to Establish Self-sufficiency27 for

The Refugee Assistance Headquarters provides support for asylum seekers, aseight months to take further Japanese lessons and guidance on living and em-

well. Asylum seekers can be given free counselling service. In case of financial

ployment. In addition, since 1998, the programs of both Centers were extended

difficulties, they are given assistance with expenses for living, accommodation,

to returnees from Sakhalin and other places in the former USSR. Nevertheless,medical matters and the accommodation at ESFRA (Emergency Shelter For

with the decreasing tendency of new returnees, the number of the Centers is re-

Refugee Applicants).29 However, most asylum seekers must find their accommo-

duced. Integration of the returnees still remains controversial. The Support &dation by themselves since the Japanese government provides a very limited

Exchange Centers for Returnees from China have established and implemented

number of places, and offers them only for emergency cases.

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説than their allowance by engaging in the same work as undocumented foreign
5. The Migrant and the Employer

workers. Currently, trainee programs are criticized for exploiting foreign trainees as low-wage laborers. Therefore, the Health, Labor and Welfare Ministry

Problems of Migrant Workers

wants to end unlawful labor practices through trainee programs and extends

The Nikkeijin workers are granted social rights. Indeed, they can enjoy thethe technical intern program up to five years, while the Economy, Trade andnational health insurance mainly for the self-employed and the private corpo-

Industry Ministry wants to maintain trainee programs to help smaller compa-

rate health insurance for company employees or public servants as do Japanesenies that are having tough difficulties of finding workers.

citizens. However, most of them are out of the health-insurance schemes in prac-

Regarding undocumented foreign workers, if a company employs more thantice. One reason is that the Nikkeijin workers are not willing to join health in-five workers, even undocumented foreign workers are entitled to health insur-

surance because of the compulsory welfare pension system join simultaneously,

ance. In addition, the Worker's compensation insurance will be paid regardlessunder which they would probably receive no benefit in the future because theof citizenship, but in the case of undocumented foreign workers, employers andcontribution period required is for at least 25 years in general and bilateral pen-

employees are not willing to apply it for fear of the disclosure of the unauthor-

sion agreements have only been concluded with Germany, the UK, the USA andized employment. Furthermore, in the case of accidents involving undocumented

Korea at the time of 2005. Another reason is that employers of small companies

foreign workers, the compensation for the lost benefit represents a serious

are not willing to pay the half of the private corporate health insurance premi-

problem due to the difference between the standard of Japan and the standard

ums.

assumed for third world countries. The Supreme Court handed down the deci-Entertainers are the largest group of foreign workers with working visas assion relating to the lost benefits from the wages earned in Japan for 3 years

specialists. In 2003, some 80,000 visas in a year are granted to Filipinos. Indeed,(Supreme Court judgement, Jan. 28, 1997). In the cases involving temporary

the majority of Phillipine women entered the country as dancers or singers.

visitors or irregular residents, some local governments have to pay for the

Virtually, however, they are mainly employed in the sex/entertainment indus-

emergency medical costs for foreigners who are supposed to have been injured

tries.30 Pursuant to the 2004 Anti-Trafficking Action Plan, the Ministry of

in a public place during a trip under the Law concerning the Treatment of Sick

Justice Ordinance regarding the criteria for entertainer applicants was

Wayfarers and Wayfarers Found Dead. Recently some local governments andamended in 2005. They are required to have undergone at the minimum 2 years'

NGOs had to provide for their own expenditures. Since 1996 the state pays one

education or experience of the performance in arts.

third of the expenditure for the emergency medical care if the condition is seri-

Trainees do not have the right to get wages but some employers have usedous.

them as disguised laborers. These problems frequently involve associations, brokers and other intermediaries who abuse the Training Program and Technical

Sanctions to Employers and Intermediaries for Unauthorized Employment

Intern Training Program as a means of dispatching low-wage workers. Some

Since 1990, the Japanese government has taken measures against unauthor-

trainees have disappeared from the training places in order to earn more money

ized employment. Under the Immigration Control Act, employers and57−3−211 (名城 '08)

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説intermediaries who encourage undocumented foreign workers to engage in un-

For other foreigners, Article 24 of Immigration Control Act stipulates vari-authorized work may be punished with imprisonment for up to 3 years and/or

ous grounds for deportation. The following foreigners may be deported: 1)

a fine of up to 2 million yen (Article 73-2) and in the 2004 Amendment of

Irregular entry;31 2) Irregular landing; 3) Revocation of residence status by

Immigration Control Act a fine was increased up to 3 million yen. Under thefalse statement and so on; 4) Overstay; 5) Unauthorized activity for residence

1999 Amendment of Immigration Control Act, the punishment for collective

status; 6) Aiding false document; 7) Trafficking in persons; 8) Aiding irregularsmuggling shall be imprisonment for up to 5 years and/or a fine of up to 3 mil-entry; 9) Imprisonment for violation of the Alien Registration Law; 10) Minors'

lion yen (Article 74-1), and in case of collective smuggling for the purpose of

imprisonment exceeding three years; 11) Violation of the Marijuana Control

profit, the punishment shall be imprisonment for from 1 year up to 10 years

Law and so on; 12) Imprisonment exceeding one year; 13) Business connected

and/or a fine of up to 10 million yen (Article 74-2).

with prostitution; 14) Destructive violence; 15) Detriment to the interest or security of Japan.

Sanctions to Undocumented Foreign Workers

Most undocumented foreign workers enter Japan regularly as tourists and so

Since 1990, under the Immigration Control Act, undocumented foreign workers who engaged solely in unauthorized work may be punished with imprison-on, and then work irregularly and overstay.32 In 2005, about 95 percent of thosedeported left Japan at their expense.33

ment for up to 3 years and/or a fine of up to 2 million yen (Article 70-4). In caseof foreigners who engaged in unauthorized work but not solely engaged in it,

Regularization of Irregular Residents

for example when foreigners staying in Japan under the status of pre-college

The Japanese government has never granted a general amnesty and definitely

student have worked part-time without obtaining permission, they may be pun-rejected the mass relief for irregular residents because such lenient measuresished with imprisonment for up to 1 year and/or a fine of up to 200 thousand

can serve as a powerful magnet for accelerated flows of new irregular immi-

yen (Article 73) and in the 2004 Amendment the fine was increased up to 2 mil-grants. However, a special permission for residence is stipulated in the Article

lion yen.

50-3 of the Immigration Control Act. If "the Minister of Justice finds grounds
for giving special permission to stay" in individual cases of irregular residents,

6. State Protective Measures

the former decision of deportation shall be cancelled and some kinds of residential status are given to them.
Since the late 1990s, the regularization for foreign spouses34 of citizens or per-Deportation
Under the Article 9 of the Special Law on Immigration Control, special per-manent residents has increased and the number of special residence permissions

manent residents are protected from deportation except when they are sen-was 13,239 in 2004. Since 2000, the Minister of Justice have decided to allow

tenced to imprisonment for more than 7 years. Furthermore, their deportation

regularization for long-term irregular resident families with school children

is exerted only if the Minister of Justice finds that the vital interests of Japan

with respect to the "best interests of the child" and the family unity. In the 2005

is jeopardised by their crimes.

Amendment of the Immigration Control Act, victims of trafficking without

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Summary of the Legal Position of Migrants in Japan論

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proper papers will not be deported immediately but are granted special residence

million yen. In addition, the refusal period of re-entry was extended to 10 years

permission so that they can cooperate in the investigations against traf-

if deported persons have a past record of deportation.

fickers.35 The immigration Bureau published the guidelines for special permission to stay, however the standard of 'extreme hardship in the life of their homecountry' is vague as positive factors for the humanitarian permission.36

Conflict
Faced with the concentrating habitation of foreign residents in some areas,
Japanese residents have become much more doubtful about these foreigners,

Sanctions to Irregular Residents

seeing them observing no rules relating to proper disposals of garbage, andUnder the 1989 Immigration Control Act, if a persons who over-stay is consid-

some of foreign youngsters not attending school and involved in quarrels withered as very vicious, he or she is punished with penal servitude or imprisonment

Japanese youngsters. For example, in June 1997 tensions rose between Japaneseof not more than 3 years or a fine not more than 300,000 yen, or is punishedresidents and Brazilian residents in the Homi public housing estate in Toyota

with both penal servitude or imprisonment and a fine (Immigration Control

city.37

Act, Article 70). The Immigration Control Act was amended in 1999 and was en-

The Police have pointed out the number of crimes committed by foreign new-forced on February 18th, 2000. The first of its significant revisions was to estab-comers, the mass media have focussed upon. As a result of increasing crimes in-lish a new penalty for irregular entrants. Up to then, irregular entrants have

volving foreigners, some owners of shops, bathhouses or bars refused entry to

stayed in Japan for three years since they entered Japan, the period of prescrip-

all foreigners for fear of robberies and property damages. Indeed, the Courts or-tion ran out, and criminal punishment could not be imposed on them even if

dered the owner of a jewelry shop (in Ana Bortz Case)38 and the bathhouse (inthey were deported in the same manner as over-staying persons. The newly-

Arudou Debit et.al. Case)39 to pay 1.5 million yen and 3 million yen respectively

established criminal offence was called "unlawful stay" so that irregular en-

for mental anguish based on racial discrimination. However, officials of local

trants could be always punished with penal servitude or imprisonment of notgovernments do not have enough power to prohibit racial discrimination andmore than 3 years or a fine not more than 300,000 yen (Article 70-2).

xenophobia.

The second significant revision of the Immigration Control Act in 1999 was
the extension of the refusal period of re-entry. Up to then, deported foreigners

7. Concluding Remarks

had not been allowed to re-enter Japan "for 1 year from the day of their deportation". The new Article 5-1-5 of the Immigration Control Act extended the re-Japan is not a member of the International Convention on the Protection offusal period to 5 years. Immigration Bureau stated that this extension was to

the Rights of All Migrant Workers and Members of Their Families, but it ac-

prevent the increasing number of people from re-entering Japan after deporta-

cessed to the International Convention on the Elimination of All Forms oftion.

Racial Discrimination in 1995. The Japanese Parliaments and local parliaments

Under the 2004 Amendment of the Immigration Control Act, the amount of

have not yet enacted the Anti-Racial Discrimination Act and Regulations. It

fines against irregular entrants and over-staying persons was raised to 3

should be pointed out that the enactment of such laws is an urgent need for the57−3−207 (名城 '08)

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Summary of the Legal Position of Migrants in Japan論

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through 2050".42 It is argued that there are two models of response to the prob-society.
In the late 1980s, Japan's bubble economy and labor shortage caused the firstlem of aging population. The first model includes "replacement migration" andheated debate as to whether Japan should be open or closed to foreign work-

the infusion of "temporary foreign workers". The second model shifts the stateers.40 However, in 1988, the Minister of Labor published the sixth Basic Plan forpolicy from a Fordist economy (labor-intensive industries with mass-

Employment Policy and confirmed these two basic policies: 1) specialized andproduction technology) to a Post- Fordist one (knowledge-based flexible pro-technical labor will be positively accepted; 2) dealing cautiously with the matter

duction and service industries with information technology). Both models areof accepting unskilled labor with thorough deliberation.

not mutually exclusive and might best represent a coordinate policy sequence of

Why did Japan have so little immigration during its period of advanced eco-short- and longt-term adjustment.43 Yet this argument is lacking the considera-

nomic growth compared with other developed countries? This will be explainedtion of the decrease of consumer population who bear responsibility about social

in terms of the following four factors: 1) a large domestic mobility; 2) automa-security and welfare. There is a tendency that the consumption tax (VAT) be-tion; 3) opening up the labor market for house-wives, students and elderly peo-comes main fiscal resources of the social security and welfare in Japan. Even if

ple as part-time labor; 4) long working hours. Additionally, Japan's peculiarity

a decrease of working population can be covered by improving productivity,

is explained by the following three reasons: 5) a dense population; 6) little avail-

however a serious problem remains in the social welfare state where the con-able land; and 7) the myth of a 'monoethnic' state. Furthermore, 8) the collective

sumer population is decreasing. Indeed, it is difficult to forecast the future in-memory of the isolation period (1639-1853) could be mentioned. Recently, how-

dustry structure and to accept such a mass immigration into Japan. However,

ever, Japan has turned away from its self-understanding as a 'monoethnic' stateeven at present there is a tendency to increase foreign residents in Japan.

to a policy of cultural pluralism. The percentage of mixed marriages is increas-

Therefore, it should be noted that the construction of comprehensive admini-

ing from 0.5% in 1970 to 6.1% in 2006. The number of labor force engaged in thestration and the enactment of a special law in order to integrate Japanese andagricultural industry has continued to drop from 14 million in 1960 to 3 million

foreign residents are of significant needs for Japan's society.

in 2005. The average of total working hours per capita also declined from 2,426
hours in 1960 to 1,775 hours in 2005 (as in the USA and the UK). The population





is aging rapidly with less childbirth, and the total population is turned to de-1crease in 2005.41

This paper is a summary of the original one prepared for the national report on "The Legal Position of Migrants" at the 17th Congress of the

In the early 2000s there was a second debate as to whether Japan should admitInternational Academy of Comparative Law 16-22 July 2006, Utrecht, theimmigrants in order to improve the demographic situation of the aging society.

Netherlands. The original will be published in the ICCLP Publications

Japanese society is now witnessing a rapid progress in aging and diminishingNo. 10 (The International Center for Comparative Law and Politics at theworkforce. In 2000, the Report of the Population Division of the UN pointed out

University of Tokyo's Graduate School of Law and Politics). I wrote thisthat "in order to keep the size of the working-age population constant at the

paper to honour the contribution of Professor emeritus Tsuyoshi Kotaka

1995 level or 87.2 million, Japan would need 33.5 million immigrants from 1995

to our Faculty of Law at Meijo University.

57−3−205 (名城 '08)

( 22 )( 23 )(名城'08)57−3− 204

Summary of the Legal Position of Migrants in Japan
2

論

Additionally, it is said that another fundamental principle could be iden-

Ministry of Justice], Heisei 16 Nenban Shutsunykoku Kanri [2004tified as the basis for Japan's immigration policy: 3) all foreigners should

Report on Immigration Control] (Tokyo: kurashInsatsukyoku., 2004)

be admitted on only temporary basis. See Tsuda Gaku and Wayne A.

pp. 10-20.

Cornelius, 'Japan: Government Policy, Immigrant Reality' in Wayne A.

8

Cornelius et al. (eds.), Controlling Immigration 2nd ed. (Stanford,
Stanford University, 1994), pp. 449-50.
34Ordinance on the residence status of entertainers was amended for their

Impact of International law on Japanese Law. (New York: Oxford

stricter immigration control in 2005. Compared with the alien registra-

University Press, 1998), pp. 167-76.

tions in 2004, the number of entertainers decreased by some 67 percent, on

Strictly speaking, the Immigration Control Order was enacted in 1951

the other hand that of engineers increased by some 51 percent in 2006.
10

Regarding to the comparison between trainees and technical interns, see

Immigration Control and Refugee Recognition Act in 1981. As for the

Yoko Sellek, Migrant Labour in Japan (New York: Palgrave, 2001), p.

historical regulations, see Yoshio Hagino, 'The Japanese Immigration

71.

System―An Introduction' Nanzan Hgaku vol. 7, no. 2 (1983); Yoshio

11 This paper uses the terms "irregular residents" or "undocumented foreign

Hagino, 'New Japanese Immigration-Control and Refugee-Recognition

workers." In the UN and European organizations, the use of the word

Act of 1981' Nanzan Hgaku vol. 8, no. 1 (1984); Shigeki Miyazaki, 'Die

"illegal" in this context has been criticised because of its connotations

Rechtsstellung von Auslandern nach staatlichem Recht und Vlkerrecht

with criminality. See W. R. Bhning, 'Regularising the Irregular' Inter-in Japan' in Jochen Abr. Frowein and Torsten Stein (eds.), Dienational Migration (1993), pp. 159-60; Ryszard Cholewinski, Irregular

Rechtsstellung von Auslndern nach staatlichem Recht und Vlkerrecht

Migrants: Access to Minimum Social Rights. (Strasbourg: Council of(Berlin: Springer, 1987), pp. 727-49; Yasuzo Kitamura, 'Recent Develop-

Europe Publishing , 2005), p. 9.
12 Atsushi Kondo, The Development of Immigration Policy in Japan. Asiantion on Migrant Workers' University of British Columbia Law Review
vol. 27, no. 1 (1993), pp. 113-32.

and Pacific Migration Journal vol. 11 no. 4 (2002), p. 429.
13

Immigration Bureau, Ministry of Justice, Refugee Recognition Ad-

Takamichi Kajita, 'The Challenge of Incorporating Foreigners in Japan'

ministration―25 years in the Making (2006), pp. 11-17. Available at:

in Myron Weiner and Tadashi Hanami (eds.), Temporary Workers or＜http://www.immi-moj.go.jp/english/keiziban/happyou/NanminNinteiGyosei-

Future Citizens? (London: Macmillan, 1998), p. 145.

E-1.pdf＞.

UN Population Division. World Migrant Stock: The 2005 Revision. Avail-14

able at: ＜http://esa.un.org/migration＞.
7

Recently, due to the anti-trafficking measures, the Ministry of JusticeYuji, Iwasawa, International law, Human Rights, and Japanese Law. The

ments in Japanese Immigration Policy and the United nations Conven-6

HP of the Ministry of Foreign Affairs, "A Guide to Japanese Visas."
Available at: ＜http://www.mofa.go.jp/j̲info/visit/visa/index.html＞.

9and the name of "Order" was continued until the enactment of the

5

説(London: Macmillan, 1997), pp. 10-1.

Hmush Nykoku Kanrikyoku [The Immigration Bureau in the57−3−203 (名城 '08)

Hiromi Mori, Immigration Policy and Foreign Workers in Japan,( 24 )

15 Nobuyuki Koyama, 'ZairyShikaku "Eijsha" ni tsuite [On the Status of( 25 )(名城'08)57−3− 202

Summary of the Legal Position of Migrants in Japan論

Permanent Residents] Kokusai Jinry [The Immigration Newsmagazine] no. 138 (1998), p. 26. Prior to 1988, it was reported that the16

72-82.
24 The tabunka kysey policy in Japan is different from the 'multicultural-

general requirement was that of a 20-year residence.

ism' in Canada, Australia and New Zealand where main targets were na-

Yasuaki numa, 'Beyond the Myth of Monoethnic Japan', in The

tional minorities such as linguistic minority or indigenous people and are

Committee to Commemorate the Sixtieth Birthday of Prof. Suh Yong-covering foreign residents. It has some similarity with the 'integration

Dal (ed.), Ajia Shimin to Kan Chosenjin [Asian Citizens and Koreans inpolicy' in Sweden and Germany where main targets were foreign resi-

Japan], (Tokyo: Nihon Hyronsha, 1993), pp. 576-8.

dents and are covering national minorities such as foreign-born citizens.

17 An American language teacher, Mr. McLean's request for renewal of his

25phans remaining in China after war since 1984 to 1994 when the support

War movement. As a consequence, the judgement supported the decision

was expanded to Japanese women remaining in China after war.

of the Minister of Justice. See Lawrence W. Beer and Hiroshi Itoh, The

26

The program was for four months until 2003.

Constitutional Case Law of Japan, 1970 through 1990 (Seattle: University

27

They were established from 1988.

of Washington Press, 1996), pp. 471-8.

28

Betsy Brody, Opening the Door. Immigration, Ethnicity, and Globali-

Westin (eds.), New Concepts of Citizenship (Stockholm: CEIFO, 2003),

zation in Japan (New York: Routledge, 2002), pp. 87-95.
29

pp. 37-8.
Atsushi Kondo, 'Citizenship Rights for Aliens in Japan'. In Atsushi

Rights for Aliens (New York: Palgrave, 2000), p. 22.

30

31

There is an amendment bill of the Immigration Control Act to establish
the crime of irregular entry and persons who enter irregularly are pun-

one year.

ished with a penal servitude or imprisonment of not more than 3 years or

Solidarity Network with Migrants Japan (SMJ), Living Together witha fine of not more than 300,000 yen at any time.

Migrants and Ethnic Minorities in Japan (Tokyo: SMJ, 2007), p. 77.

32 Helmut Loiskandl, 'Illegal Migrant Workers in Japan' in in Robin Cohen

Ministry of Internal Affairs and Communications (2006). The Plan for(ed.),

Multicultural Coexistence Promotion in Local Communities. Available at:Cambridge University Press, 1995), p. 373.

＜http://rliea.clair.or.jp/about/pdf/multiculture̲eng.pdf＞.
23

Hiroshi Komai, Foreign Migrants in Contemporary Japan (Melbourne:
Trans Pacific Press, 2001), p. 27

20 In general, they are extended to foreign residents who stay for more than

22

Assistance for refugee applicants started since 1995 and the Emergency
Shelter started since 2003.

Kondo (ed.), Citizenship in a Global World: Comparing Citizenship21

The names were the Resettlement Promotion Centers for Japanese or-residence permit was rejected due to his involvement in the anti-Vietnam

18 Tomas Hammar, 'Denizen and Denizenship' in Atsushi Kondo and Charles

19

説

33

The

Cambridge

SurveyofWorld

Migration

Immigration Bureau, 2006 Immigration Control. Tokyo: Immigration

Kashiwazaki Chikako, Local Government and Resident Foreigners. In

Bureau, Ministry of Justice, Japan, p. 61. Available at:

Furukawa Shun'ichi and Menju Toshihiro (eds.), Japan's Road to＜http://www.moj.go.jp/NYUKAN/nyukan54-2.pdf＞.

Pluralism (Tokyo: Japan Center for International Exchange, 2003), pp.
57−3−201 (名城 '08)

( 26 )

34( 27 )(Cambridge:

Pursuant to the Ministry of Justice Circular on 30 July 1996, even if di(名城'08)57−3− 200

Summary of the Legal Position of Migrants in Japan論

説

vorced persons with custody of children, including illegitimate children

42 Population Division, Replacement Migration: Is It a Solution to Declining

legally acknowledged to be Japanese by their respective Japanese par-and Ageing Populations? (New York: United Nations, 2001), p. 53.

ents, are regularized. Katsuko Terasawa, Labor Law, Civil Law,

43 Chikako Usui, Japan's Demographic Future and the Challenge of Foreign

Immigration Law and the Reality of Migrants and their Children. In

Workers. In Takeyuki Tsuda (ed.), Local Citizenship in Recent Countries

Mike Douglass and Glenda S. Roberts (eds.), Japan and Globalof Immigration (Lanham: Lexington Books, 2006), pp. 39-59.

Migration (London: Routledge, 2000), p. 233.
35

Atsushi Kondo, Japanese Experience and Response in Combating
Trafficking. In Shiro Okubo and Louise Shelley (eds.), Human Security,
Transnational Crime and Human Trafficking: Asian andWestern

Perspectives (Routledge, forthcoming).
36 HmushNykoku Kanrikyoku [The Immigration Bureau in the Ministryof Justice], (2006). ZairyTokubetsu Kyoka ni kakaru Guidline [Guidline
for Special Residence Permission]. Available at:＜http://www.moj.go.jp/NYUKAN/nyukan52-1.pdf＞.
37

Yoko Sellek, Migrant labor in Japan (New York: Palgrave, 2001), pp.
215-8.

38 Judgement of the Hamamatsu Branch of the Shizuoka District Court on
October 12, 1999. See Keiko Yamanaka, 'A Breakthrough for Ethnic
Minority Rights in Japan: Ana Bortz's Courageous Challenge' In Mirjana
Morokvasic et.al. (eds.), Crossing Borders and Shifting Boundaries.
Vol.1: Gender on the Move (Opladen: Leske＋Budrich, 2003), pp. 231-59.
39

Judgement of the Sapporo Appellate Court on September 16, 2004. See
Arudou Debito, Japanese Only (Akashi Shoten, 2004).

40

See Haruo Shimada, Japan's "Guest Workers" (Tokyo: University ofTokyo Press, 1994), pp. 50-4.

41

Regarding the transformation of Japan's population and social conditions, see Atsushi Kondo, New Challenges for Managing Immigration in
Japan and Comparison with Western Countries. In Atsushi kondo (ed.),Migration and Globalization, (Tokyo: Akashi Shoten, forthcoming).

57−3−199 (名城 '08)

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