Comments on the Draft 5th Immigration Control Basic Plan

Tokyo, 24 July 2015

UNHCR Representation in Japan
Wesley Center
6-10-11, Minami-Aoyama, Tokyo
107-0062
Telephone: 03-3499-2011, Fax: 03-3499-2272
www.unhcr.or.jp

Comments on the draft 5th immigration control basic plan
Reference is made to the above draft which was posted on MoJ’s website on 26 June 2015 forpublic comments. UNHCR, which has been invited to participate in the Sub-Committee meetings
throughout 2014, wishes to share its comments with the hope that those would be taken into
consideration before the finalization of the draft document. It is suggested that this paper is readin conjunction with the paper “Points of Consideration related to global and domestic refugee andstatelessness issues” that UNHCR Representation in Japan issued in July 2015.1
Introduction
Global forced displacement has seen accelerated growth in 2014, reaching unprecedented levels.
By end 2014, 59.5 million individuals were forcibly displaced worldwide as a result of conflict,generalized violence, or human rights violations. A record high of nearly 1.7 million individuals
submitted applications for asylum in 2014, a 54 percent increase as compared to 2013.
Japan has also witnessed the highest record number of asylum applications in 2014. 5,000
individuals submitted asylum applications, which was an increase of almost 50 percent compared
to 2013. While Japan has been receiving an increased number of asylum-seekers in recent years,
the number is still relatively small, compared to other countries that are a State Party to the 1951
Convention relating to the Status of Refugees and/or its 1967 Protocol and have well-established
RSD laws and procedures. However, there are now almost 10,000 asylum applications pending
decision in Japan and the average length of the asylum process is more than three years, which islonger than in some European countries despite much higher numbers of applicants. As thecountry is currently facing an ever growing number of people seeking international protection,
UNHCR believes that it is imperative for Japan to develop a more comprehensive, fair and efficientsystem to adequately manage the situation, invest into ‘asylum-system building’, and put in placea structure with necessary human, financial and other capacities.
In this regard, UNHCR wishes to refer to the deliberations of the Sub-Committee MoJ establishedin late 2013 to discuss asylum issues. As an observer to the Sub-Committee, UNHCR provided anumber of recommendations and proposals and shared the practices of other countries Japan
could learn from. UNHCR hopes that the recommendations by the Sub-Committee be swiftly andappropriately implemented.

1

UNHCR “Points of Consideration related to global and domestic refugee and statelessness issues,” July
2015, available at: http://www.unhcr.or.jp/html/ENG_New_Administration_Paper_July_2015_final.pdf

1From UNHCR’s point of view, it will be important for GoJ to consider the following measures inorder to better deal with present day asylum challenges as a matter or priority:(1)

The establishment of a comprehensive legal regime governing all asylum related matters,(2)

The establishment of a centralized Government agency that consolidates asylum related
tasks which are currently distributed among different ministries, and(3)

The establishment of the required structures, resources and capacities that will allow theGovernment to more efficiently and fairly deal with the increasing number of applicants todetermine who is in need of international protection and who not.

Concrete comments on the relevant paragraphs:
Re: Chapter 6.②Stayers with fake status or Giso-Taizaisha (page 23)
The reference to ‘fake stayers’ or Giso-Taizaisha and MoJ’s wish to identify such persons and ‘deal
with them’ give rise to a concern that genuine asylum-seekers / refugees may be labeled as suchand be subject to immigration control measures. It should be recalled that in exercising the rightto seek asylum, asylum-seekers are often forced to arrive at, or enter, a territory without priorauthorisation. The position of asylum-seekers may thus differ fundamentally from that of ordinary
migrants in that they may not be in a position to comply with the legal formalities for entry. Theymay, for example, be unable to obtain the necessary documentation in advance of their flightbecause of their fear of persecution and/or the urgency of their departure. These factors, as wellas the fact that asylum-seekers have often experienced traumatic events, need to be taken into
account in determining any restrictions on freedom of movement based on irregular entry orpresence. The newly proposed immigration control measures should not put the asylum-seekers
into further disadvantaged position and utmost care needs to be exercised as stipulated in Article
31 of the 1951 Convention.
④Proper treatment of detainees and expedited return of individuals (pages 24-25)“The maintaining of proper environment for detainees will continue and the treatment of detainees
will be improved further” (page 25)“As to detainees who have not been returned for a prolonged period of time after the issuance ofdeportation order, effective measures for their return should be considered.” (page 25)2

Regarding the detention of asylum-seekers, UNHCR would like to recall the basic principles asfollows:2
It should be noted that every person has the right to seek asylum and enjoy in othercountries asylum from persecution, serious human rights violations and other serious
harm. Seeking asylum is not, therefore, an unlawful act. (Art. 14 of Universal Declarationof Human Rights and Art. 31 of 1951 Refugee Convention)

Considering the physical and psychological effects associated with detention, and inaccordance with international human rights laws and other international standards
concerning the treatment of refugees, the detention of asylum-seekers should be normally
avoided and be a measure of last resort.

Consideration of availability, effectiveness and appropriateness of alternatives todetention in each individual case needs to be undertaken and the expansion of ATD
programme should be given a priority.

While the above principles are respected, it is strongly proposed that the improvement of thedetention conditions should also be considered as a matter of urgency.
Furthermore, considering that the number of cases which submit application for RSD after thedeportation procedure has been initiated has been increasing, the following are proposed:

The cases will be dealt with under the fair and efficient procedure and the measures toswiftly render decisions should be considered;A legislative framework and an effective system are put in place that fairly andtransparently regulate the treatment of rejected asylum-seekers who are not entitled todomestic protection or other rights to remain. The basic principle governing thetreatment of such persons includes that they be treated in a humane manner and in fullrespect for human rights and dignity;Counseling at the end of RSD process is provided (including addressing questions of returnto the country of origin in safety and with dignity). Such a regulation also includes
provisions for assisted voluntary return.

An effective and transparent return monitoring system is put in place, where civil society
organizations may be requested to play a role in monitoring that the return is carried out

2

UNHCR, “Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-seekers
and Alternatives to Detention” 2012, available at http://www.refworld.org/docid/513dbe952.html

3

in safety and dignity. In this regard, the effective usage of IOM’s Assisted Voluntary
Return and Reintegration (AVRR) programme may be considered.

Re: “7. Promoting proper and speedy protection of refugees” (pages 26-29)
1) Comparison with Sub-Committee recommendations
Under Chapter 7, the paper mentions A) In order to provide protection for refugees in a speedy
manner without an exception, individuals who should be genuinely protected and those who are
not in need of such protection will be distinguished and dealt in a proper and efficient manner inaccordance with the content of each case; B) the efforts will be made to solve the problems thecurrent system faces by further increasing the quality of examination. More in concrete terms, it
provides a) the structure and basis of the RSD administration should be strengthened even more;b) the structure for compilation and analysis of basic materials re: asylum-seekers, COI as well as
information on international affairs should be enhanced and strengthened.
On the contrary to the above, the recommendations of the Sub-Committee were composed of thefollowing, i.e., I. Proper protection through clarification of those who should be protected; II. Fairand efficient RSD through clarification of procedures; III. Increasing transparency throughclarification of eligibility criteria; IV. Enhancing specialization of individuals involved in RSD andother issues for further consideration.
Making a comparative analysis between the two documents, the draft 5th immigration control
basic plan has omitted the following recommendations submitted by the Sub-Committee:
I.

- As for the claims with “new forms of persecution,” consider providing protection basedon proper interpretation of the 1951 Convention.

II. - Review the refugee status application form; enhance the guidance given to asylumseekers regarding the RSD system;- Clarify special consideration for vulnerable individuals such as unaccompanied minors
and persons with serious illness; allow experts to be present at interviews of such persons.
III. - Efforts to clarify “normative elements,” regarding eligibility considering practices andprecedents in and outside Japan;- Make reasons for rejection of refugee status more satisfactory and consider providing
reasons for recognition;- Make further efforts to make both recognized and rejected cases public.
4IV. - Increase the number of refugee inquirers and RECS in different locations;- Review the decision-making process;- Share decisions, etc. made by RECs among RECs;- Establish a system of providing training for interpreters; introduce a system to evaluate
performance of interpreters objectively.
It should be noted that all the above issues, which are considered imperative to further improvethe current RSD system, have been omitted in the draft plan. We strongly hope that the above
issues be clearly reflected in the revised (and final) plan.
UNHCR recognizes the need to review the issues highlighted by MoJ and develop solutions toaddress the specific and immediate issues the Ministry is currently facing. However, UNHCR
believes that the points that have now been proposed for implementation are closely related tothe overall fairness and efficiency of the current refugee status determination process andrecommends a more holistic approach to ensure that the problems are appropriately resolved.
Specifically, following issues need to be considered.
a)1951 Refugee Convention should be “interpreted in good faith in accordance with theordinary meaning to be given to the terms of the treaty in their context and in the light of its
object and purpose” (Art. 31 of Vienna Convention on the Law of Treaties)b)
Criteria should be developed, taking into full consideration UNHCR’s guidelines andjurisprudence of other countries on this matter.
2) Introduction of the concept of “Complementary forms of protection”
It has been noted by the wording ‘… further consideration should be given to providing clarity as
to who should be provided with residency permission under “evacuation opportunity”’ that MoJ is
considering the introduction of a new concept under the term of “evacuation opportunity.
Perhaps the most similar concept which exists may be the one called “temporary protection”. The
latter, however, is intended as a specific provisional protection response to situations of mass
influx providing immediate emergency protection from refoulement, without formally according
refugee status, and therefore it should be clearly distinguished from other forms of international
protection.
The introduction of the concept of ‘complementary forms of protection’ was discussed andconsidered by the Sub-Committee. Should MoJ still be contemplating the introduction of thisconcept, the following needs to be taken into consideration:5a) The new legal regime, which we believe will require changes to the current ICRRA, will have its
legal basis on the international human rights instruments, as the concept of complementary forms
of protection:•

All persons who fulfil these criteria should be duly recognized and protected under those
instruments, rather than being accorded a complementary form of protection and themeasures to provide complementary protection should be implemented in a manner thatstrengthens, rather than undermines, the existing international refugee protection regime.

•

All forms of international protection which are available in a national legal system (i.e.,
both applications for refugee status and for complementary forms of protection) need to
be decided upon by the same authority in one single procedure with the same minimum
guarantees.

•

Criteria for granting complementary forms of protection are established in accordancewith international standards.

•

Complementary forms of protection are provided to those who do not qualify for refugeeprotection under refugee law instruments, in particular the 1951 Convention, but are inneed of international protection because they are at risk of serious harm.

•

Criteria are based on other relevant human rights instruments, such as CAT (Art.3), UNCRC(Art. 3, 9(1) and 37) and ICCPR (Art. 6 and 7).

b) where it is appropriate to consider the ending of complementary forms of protection, GoJ
should adopt criteria which are objective and clearly and publicly enunciated; the doctrine andprocedural standards developed in relation to the cessation clauses of Article 1C of the 1951
Convention may offer helpful guidance in this regard.
c) Those provided with complementary forms of protection should enjoy a formal legal status andshould be granted the necessary civil, political, social and economic rights to ensure a high degreeof stability and certainty and respect for other important principles, such as the fundamental
principle of family unity to ensure speedy reunification of separated refugees and those provided
with complementary forms of protection.
3）Introduction of admissibility proceduresa. Individuals who make claims based on reasons other than the ones specified in the 1951
Convention should be screened and clearly distinguished, and cases should be dealt within asimplified and expedited manner. (page 28)
6Regarding admissibility procedures, they may be introduced to determine manifestly unfoundedor clearly abusive claims. However, key procedural safeguards must be ensured and the quality ofthe examination procedure should not be dispensed – sacrificing thereof may result in flaweddecisions which defeat the objective of a fair and efficient asylum procedure. Furthermore, thefollowing needs to be taken into consideration. It is suggested that in developing such a
procedure, UNHCR guidelines are fully taken into consideration.3•

The first step towards reducing the duration of the asylum procedure is to ensure thequality of the first instance procedure. It is imperative to invest resources in the first
instance examination in order to produce reliable good quality first instance decisions.
This would mean that the first instance examination procedure is implemented bysufficient numbers of trained specialist personnel, supported by qualified interpreters andgood quality, up-to-date country of origin information, and the procedure encompasses allnecessary procedural safeguards.

•

Terms such as ‘clearly abusive’ or ‘manifestly unfounded’ should be clearly andexhaustively defined and interpreted restrictively.

•

The manifestly unfounded or abusive character of an application should be established by
the authority normally competent to determine refugee status.

•

Applicants need to be given adequate time to exercise their rights to consult in an
effective manner a legal adviser or other counselor, and/or to communicate with a
refugee-assisting organization.

•

Any admissibility procedure should be without prejudice to an adequate and complete
examination of the claim, including personal interview, which is a crucial and basic
guarantee of the asylum procedure.

•

Applicants whose claims were rejected through admissibility procedure should haveaccess to an effective remedy against a negative decision. This requires, among otherthings, a reasonable time limit in which to submit the appeal, as well as automatic
suspensive effect.

3

UNHCR Global Consultations on International Protection/Third Track: Asylum Processes (Fair and Efficient
Asylum Procedures), 31 May 2001, EC/GC/01/12, http://www.refworld.org/docid/3b36f2fca.html, Also,
UNHCR’s position on accelerated procedure could be found in UNHCR public statement in relation to Brahim
Samba Diouf v. Ministre du Travail, de l'Emploi et de l'Immigration pending before the Court of Justice of theEuropean Union, 21 May 2010, available at: http://www.refworld.org/docid/4bf67fa12.html.

7•Given the grave consequences of exclusion, exclusion decisions should be dealt within thecontext of the regular status determination procedure.

•

Certain applications may be considered for exemption from preliminary screening, due tospecial needs of the applicant (e.g. victims of torture, survivors of SGBV, persons withdisabilities).

4) Repeat applications
2. Repeat applications should be limited to cases where new situation has arisen after the initial
application process or there are unavoidable reasons for not being able to present such a claim in
the initial application. Taking situation of applicants into consideration, repeat applications should
be dealt with in the same procedure as 1 above. (page 29)
UNHCR has shared its viewpoints and the practices of other countries on preliminary screening
and repeat applications in the Sub-Committee. Among others, criteria and procedures forreceiving and processing repeat applications by examining, inter alia, the following points.
Criteria:
A repeat application, i.e. a new application made by the same person after having received a final
decision, is admissible when new elements or findings have arisen or been presented which may
mean that the applicant has a well-founded fear of persecution. Such new elements or finding may
relate to the general situation in the country of origin and therefore lead to a sur place claim, or
may relate to the individual applicant who is, for example, able to present new credible facts or
submit new evidence in support of his/her statements.
•

A well-founded fear of persecution or a real risk of suffering serious harm may be basedon events which have taken place in the country of origin since the examination of theprevious application.

•

A well-founded fear of persecution or a real risk of suffering serious harm may be basedon activities which have been engaged in by the applicant or convictions held by theapplicant since s/he left the country of origin.

•

A well-founded fear of persecution or a real risk of suffering serious harm may arise if
there has been a direct or indirect breach of the principle of confidentiality during or since
the previous procedure, and the alleged actor of persecution or serious harm has been
informed of the applicant’s application for international protection in the Member State.

8•Trauma, shame, or other inhibitions may have prevented full oral testimony by theapplicant in the previous examination procedure, particularly in the case of survivors of
torture, sexual violence and persecution on the grounds of sexuality.

•

Further relevant evidence may have been obtained by the applicant or arisen after theprevious examination.

•

The previous examination may have been discontinued or terminated on grounds ofwithdrawal or abandonment without a complete examination of all the relevant elements.

•

The previous application may have been submitted on behalf of a dependent who later
wishes to submit an independent application in his/her own right.

Procedures:•

Repeat applications will be dealt with by the same determining authority in one single
procedure as for refugee claims;•

Preliminary examination may be justified only if the previous application was consideredin full on its merits;•

Minimum procedural safeguards and guarantees should be available as in the case of full
refugee status determination procedure;•

A personal interview is conducted where the applicant is given an opportunity to present
the new elements or findings which are claimed to justify a new procedure;•

Examination of a repeat application should not be automatically refused on the groundthat the new elements or findings could have been raised in the previous procedure or on
appeal; and,•Applicants should be given the opportunity to clarify any apparent inconsistencies orcontradictions which could lead to a refusal to examine a claim on its merits.

•

Applicants should benefit from automatic suspensive effect

Reception conditions for those pursuing repeat applications:•

Pending a decision of the admissibility of the re-application and during the examination ofan (admissible) reapplication the applicant should be entitled to support and reception
conditions on a par with regular asylum seekers (i.e. from application to a final decision of
the claim).
95) Restrictions on right to work

③ As for allowing an access to labour market for those with residency status, which has become
an incentive for abusive claims for the purpose of gaining employment in Japan, the current
practice should be reviewed and a system that will decide whether or not to provide an access tolabour market for the applicant, considering his or her individual circumstance separately, shouldbe established under certain conditions. For example, cases that may fall under certain categories
which are considered as not being in need of protection will not be provided with residency statusthat allows an access to labour market. (page 29)
On page 27, the introduction of the restriction on right to work is explained as follows: “…
individuals with residency status are allowed to work after 6 months from the date of submissionof the RSD application without an exception, if they so wish. It is presumed that the system has
been abused by foreigners with intention of working and resettling in Japan, as a result, thenumber of application has increased.”In this regard, it is recalled that for example in Europe, “EU Directive 2013/33/EU of the European
Parliament and of the Council of 26 June 2013 laying down standards for the reception of
applicants for international protection (recast)” stipulates: 1. Member States shall ensure thatapplicants have access to the labour market no later than 9 months from the date when theapplication for international protection was lodged if a first instance decision by the competentauthority has not been taken and the delay cannot be attributed to the applicant. While thelegislations introduced in many European countries are in line with this provision, there arecountries which provide work permit immediately upon application for RSD in the country(Sweden, Norway, Portugal etc.) In South Korea, under the Refugee Act, asylum-seekers are
permitted to engage in wage-earning employment six months after the application was made. In
the US and Canada, asylum-seekers whose application is pending are allowed to have access tolabour market and in New Zealand, asylum-seekers are permitted to work after six months.
The European Parliamentary Assembly reported that “the cost to the State will clearly be less if
asylum-seekers and refugees are employed rather than dependent on State support. Employment
also contributes to a more cohesive society by encouraging and improving contacts between
refugees, asylum-seekers and the local community.”4 It is not an over-statement that access to
gainful employment to become self-sufficient is important for any asylum-seekers from theviewpoint of human dignity.
6) Categorization
4

Text adopted by European Parliamentary Assembly on 11 April 2014 (18th Sitting).
http://assembly.coe.int/nw/xml/XRef/Xref-XML2HTML-en.asp?fileid=20893&lang=en

10

Furthermore, “cases that may fall under certain categories which are considered as not being inneed of protection” gives the impression that simplified procedure may be contemplated byscreening cases by pre-fixed categories. It should be stressed that such categorization carries ahuge risk of preventing genuine refugees from accessing proper assessment of their cases, giventhat each individual claim differs from one another.
7) Restrictions on access to asylum④ As for abusive cases (including repeat applications), further consideration should be given to
limiting right to apply for refugee status and establishing exceptions to the suspensive effect (fordeportation) during asylum application, both from legal and operational aspects. The a/m threepoints and their effectiveness will also be taken into consideration [when introducing suchmeasures]. (page 29)
The proposals above such as ‘limiting right to apply for refugee status itself’ and ‘establishing
exceptions to the suspensive effect (for deportation) during asylum application, were not put on
the table during the Sub-Committee meetings. The right to seek asylum is one of the mostfundamental human rights recognized in Art.14 of Universal Declaration of Human Rights, and‘limiting right to apply for refugee status itself’, gives rise to a grave concern. It should be pointed
out that denial of access to territory and access to refugee status determination, as well as limiting
the suspensive effect would indeed be considered as violation of Art. 33 of the 1951 Convention(non-refoulement principle).
UNHCR’s role
Paragraph 8 of UNHCR’s Statute, as well as the Preamble of the 1951 Convention relating to the
Status of Refugees, confers responsibility on UNHCR for supervising the application ofinternational refugee instruments, most notably the 1951 Convention and its 1967 Protocol. In
turn, pursuant to Article 35 of the 1951 Convention and Article II of the 1967 Protocol, States
signatory are required to cooperate with UNHCR and to provide the High Commissioner with
relevant information so that the office is in a position to successfully carry out its duty ofsupervising the application of the 1951 Convention.
UNHCR’s supervisory responsibility is exercised in part by the issuance of guidelines on theinterpretation and application of provisions and terms contained in international refugee
instruments, in particular the 1951 Convention. Likewise, UNHCR’s role in relation to refugee
status determination is normally recognized and stipulated in the national legislations in many
countries. Access by UNHCR to asylum seekers and information on refugee status determination
applications for UNHCR to present its views to the competent authorities regarding individual
applications for refugee status at all stages of the procedure is thus a core feature of developed
asylum systems around the world. As part of this, where UNHCR is a part of or observer to11national RSD procedures, information on the applicant’s file is usually shared with UNHCR andStates take UNHCR’s position into account when determining refugee status. UNHCR also
regularly participates as an observer in hearings and providing views on individual cases; reviews
decisions, provides advisory opinions, designates an expert to act as a judge in the appeal body,has a review right in negative decisions, or intervenes – as a third party – on issues of law before
administrative, judicial and quasi-judicial appeal bodies. Furthermore, UNHCR is engaged with asignificant number of countries world-wide in so called ‘Quality initiatives’. They are undertaken
in a spirit of working collaboratively with the authorities concerned with a view to strengthening
the fairness and efficiency of refugee status determination decision-making process so that states
are better able to uphold their obligations under the 1951 Convention and its 1967 Protocol.
As discussed in the Sub-Committee meetings, UNHCR is ready to support the endeavors of MoJ indeveloping a fairer and more efficient RSD procedure. In particular, and as recommended by the
Sub-Committee, it is crucial that cooperation between MoJ and UNHCR will be enhanced in thefollowing three areas:
1) Compilation and analysis of Country of origin information
2) Case reviews3) Capacity building of IB staff as well as Refugee Examination Counsellors
UNHCR stands ready to provide its support and guidance and work closely with MoJ and otherrelevant ministries and actors, as per standards international practice, with a view to developing
structures and processes which ensure excellence in RSD processing and the highest quality
standards related to the treatment of persons in need of international protection.

UNHCR Representation in Japan
24 July 201512