Tokyo, Japan, 25 April 2023 – On 7 March 2023, a bill to partially amend the Immigration Control andRefugee Recognition Act (hereinafter referred to as the "2023 Bill") was approved by the Japanese Cabinetand submitted to the 211th session of the Diet (regular session)1. It has been almost two years after thewithdrawal of their previous bill (hereinafter referred to as the "2021 Bill")2 . While deliberations on the2023 bill started off in the plenary session of the House of Representatives on 13 April 2023, and theCommittee on Judicial Affairs in the House of Representatives just had discussed about the bill on 19 and21 April, on 21 April 2023(Geneva and Japan time), it was found that experts of the UN Human Rights
Council sent a joint letter to the Government of Japan on April 18 2023 (Geneva time), which alleged thatthe 2023 bill would violate international law and the International Covenant on Civil and Political Rights(ICCPR) in particular3. The experts expressed concerns about the 2023 Bill in terms of remaining
presumption of detention, lack of judicial review of detention, indeﬁnite detention, violation of thenon-refoulement principle, negative impact on the enjoyment of human rights and a risk of exploitation
under the newly established non-custodial measures ("monitoring measure"), and protection of rights ofthe child, and called for dialogue with the Government of Japan regarding their concerns. We strongly
support the concerns raised in the letter and call for an immediate response by the Government of Japanand the greatest commitments by all parliamentarians to address this letter in light of the urgent situation
where the 2023 Bill is already under discussion in the Diet.

The letter was issued by the UN Working Group on Arbitrary Detention(WGAD), the Special Rapporteur on
the human rights of migrants, and the Special Rapporteur on freedom of religion or belief. This is thesecond time for the Government of Japan to receive a letter regarding a bill to amend the ICRRA on the1

Immigration Control and Refugee Recognition Act (ICRRA) Cabinet Bill, 19 February 2021: available at
http://www.moj.go.jp/isa/laws/bill/index.html.
2
Same as above.
3
OL JPN 1/2023, 18 April 2023: availble athttps://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=27995.

special procedures since 2021. In 2021, the letter was sent on March 31, expressing serious concern thatthe 2021 Bill fell short of international human rights standards4, and the Government of Japan reported
back on June 17 that they withdrew the 2021 Bill5. In the letter of 2023, the WGAD and Special
Rapporteurs urged the Government of Japan to thoroughly review the 2023 Bill to bring domestic
legislation in line with Japan’s obligations under international human rights law, despite some modiﬁcations
to the 2021 Bill, as proposed provisions questioned in the letter of 2021 remain fundamentally unchanged
and would still fall short of international human rights standards. They requested further information fromthe Government of Japan regarding the concerns mentioned in the letter and stated that they stand readyto cooperate with the Government of Japan to enhance the protection of the human rights of all migrants,asylum seekers and refugees in Japan.

Particularly, the experts expressed concerns about the following points:

It was concerned that detention would still prevail whenever a “monitoring measure” is not applied
and that the decision to apply such measures or to be detained is at the discretion of an
immigration ofﬁcer(the supervising immigration inspector), under the 2023 Bill. They stressed thatsuch a structure could violate Article 9 of the ICCPR and Article 9 of the Universal Declaration of
Human Rights, which identiﬁes personal liberty as the principle and detention as a measure of lastresort. They expressed particular concern that the 2023 Bill is still based on the presumption ofdetention.

The 2023 Bill maintains the introduction of a new alternative to immigration detention, the"monitoring measure" in which an individual is allowed to undergo proceedings from their place ofresidence under the supervision of a monitor. The experts noted that (1) the payment of a depositof not more than three million yen would, in principle, no longer be a requirement to apply amonitoring measure, however this deposit could still be imposed by the immigration ofﬁcer(thesupervising immigration inspector), when they ﬁnd it necessary; (2) although reporting obligation of
the designated “monitor” appears to be reduced as compared to the 2021 Bill, it can still be
imposed if the immigration ofﬁcial(the supervising immigration inspector) requests so; (3) a ﬁne
would still be applicable in case the monitor violates their reporting obligations as in the 2021 Bill;(4) “monitoring measures” could negatively impact on the enjoyment of the right to privacy for bothmigrants and their monitors. They observed that the application of “monitoring measure” could beparticularly challenging and raised concerns that it even could entail a risk of exploitation. They
stressed that States are required to provide non-custodial alternatives to detention that fully protect
the human rights of migrants.
The experts stated "Importantly, alternatives to detention must not be provided when there is nojustiﬁcation for detention in the ﬁrst place.Importantly, alternatives to incarceration should not beapplied when there is no justiﬁcation for the incarceration in the ﬁrst place. In such cases, theimmigrant should be released.", which means that if detention is not necessary, the individual isneither subject to detention nor even subject to “monitoring measure”.

4OL JPN 3/2021, 31 March 2021: available athttps://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=26325.
5See for more details, Permanent Mission of Japan, 17 June 2021: available athttps://spcommreports.ohchr.org/TMResultsBase/DownLoadFile?gId=36354.

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The experts expressed concern that the 2023 Bill does not foresee any judicial review ofimmigration detention. They stressed that the 2023 Bill states that every three months theimmigration ofﬁcial (the supervising immigration inspector) will review the need for detention,
however, this does not constitute judicial review. They recalled that international standards requirethat “any form of detention, including detention in the course of migration proceedings, must beordered and approved by a judge or other judicial authority”.

The experts stressed that the 2023 Bill does not provide for a maximum period of detention and it
induced prolonged detention, and that the indeﬁnite detention of individuals during migration
proceedings is considered arbitrary, which constitutes violations of the ICCPR. They urged theGovernment of Japan to deﬁne a maximum detention period in law.

The experts emphasized concern that the 2023 Bill still does not include an explicit prohibition ofimmigration detention of children.

The experts expressed a serious concern that the 2023 bill allows the automatic suspension of thedeportation procedure to be lifted for individuals who have applied for refugee recognition for athird time or more, individuals who have been sentenced to three years or more of imprisonment inJapan and those suspected for having possibly been involved in or facilitated violent, subversive orother activities. They stressed that this could be a threat to their lives or rights, and would not be inline with the principle of non-refoulement codiﬁed in article 3 of the Convention against Torture andOther Cruel, Inhuman or Degrading Treatment or Punishment (CAT); article 16 of the International
Convention for the Protection of All Persons from Enforced Disappearances; article 7 of the ICCPR.
They stated “the absence of appropriate procedural safeguards that explicitly require individual
assessment on the circumstances and protection needs prior to deportation, legislative proposals
lifting automatic suspension of deportation procedures for asylum seekers of the above-mentioned
categories would undermine international human rights law and the principle of non-refoulement.”,
which led to a clear conclusion that proposed lifting of suspension of the deportation procedure in
the 2023 Bill would violate international law.

The WGAD and Special Rapporteurs are appointed by the UN Human Rights Council (Japan has served asmember for a long time) to conduct special procedures under the mandates given by the Human Rights
Council to achieve one of the Council's main functions: to raise public awareness on human rights issues
and to improve the human rights situation around the world. The Special Procedures cover a wide range ofissues, from human rights violations against individuals to the laws and policies of each country. The joint
letter to the Government of Japan in 2023 is also part of their mandates.
Prime Minister Fumio Kishida stressed Japan’s commitment to the realization of a UN that promotes therule of law in the international community, at the 77th session of the UN General Assembly on 203September 20226; Special Advisor to the Prime Minister Gen Nakatani stated that Japan will continue toplay a leading role in the protection and promotion of international and domestic human rights at the 52nd
High-Level Segment of the Human Rights Council held on 3 March 20237. In addition, the Government ofJapan has announced that they would run for election to the Human Rights Council in 2023, following in
2019. In a series of elections at the Human Rights Council, Japan have made the voluntary pledges, whichhave promised that Japan would attach great importance to meaningful and constructive dialogues withthe Ofﬁce of the High Commissioner for Human Rights (OHCHR) and the Special Procedures, to which
Japan would continue to offer its cooperation8.
The letter concludes by stating, "We reiterate that any migration governance measures, including those
aimed at addressing irregular migration, shall not adversely affect the enjoyment of the human rights anddignity of migrants. Human rights apply to everyone, including all migrants notwithstanding theirnationality, age, gender, migratory status, or other attribute. States’ obligations under all the coreinternational human rights treaties relating to their migration governance measures require that humanrights be at the centre of their efforts to address migration in all its phases —". Fundamental human rights
are not to be "taken into account" but should be placed at the "center" of any system. There is no one
who should be an exception.
Many concerns expressed in the letter of 2023 pertain to the backbone of the 2023 Bill. They are also
stated from a legal perspective and would not be responded by changes to the operation of the 2023 Bill.
We believe that a fundamental review of the 2023 Bill is essential to ensure that Japan respects theuniversal value of fundamental human rights. In sum, we urge the Government of Japan to prioritize
substantive communications and consultations with various stakeholders, including the special procedures,
rather than a hasty debate on the 2023 Bill at the current 211th session of the Diet, and to thoroughly
review the amendment to the ICRRA to ensure that they are in line with Japan's obligations underinternational human rights law, as called for in the letter of 2023 in connection to the letter of 2021.

●Japan Lawyers Network for Refugees Email:jlnr@izumibashi-law.net

6See for more details, Address by Prime Minister Fumio Kishida at the 77th Session of the UN General
Assembly, 20 September 2022: available at https://www.mofa.go.jp/fp/unp_a/page3e_001242.html.
7
See for more details, Statement by Mr. Gen Nakatani, Special Advisor to the Prime Minister, at the High-Level
Segment of the 52nd Session of the Human Rights Council, 3 March 2023: available athttps://www.mofa.go.jp/fp/hr_ha/page22e_001027.html.
8
See example, Government of Japan, Commitments and pledges pursuant to General Assembly resolution
60/251, 15 July 2016 available athttps://documents-dds-ny.un.org/doc/UNDOC/GEN/N16/227/93/PDF/N1622793.pdf?OpenElement. Also see
Government of Japan, Voluntary pledges and commitments pursuant to General Assembly resolution 60/251,January 2019: available at https://www.mofa.go.jp/mofaj/ﬁles/000175306.pdf.

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