Statement by Scholars calling for deliberations on the proposed amendment to the Immigration Control and Refugee Recognition Act in accordance with international human rights standards as the G7 chairing country【Provisional Translation】

The Japanese Parliament is scheduled to debate a proposal to amend the Immigration Control and Refugee Recognition Act (hereinafter referred to as the Immigration Act), and as the case of the death of Ms. Wishma Sandamali from Sri Lanka at the Nagoya Immigration in 2021 has revealed, the immigration detention system in Japan has structural problems. The interpretation of refugee status determination is also strict and the recognition rate is known to be very low compared to other G7 countries. It is clear that the immigration detention and refugee status in Japan is a system and procedure that does not guarantee human rights when compared to other G7 countries.

　 The current immigration detention system has the following problems:

　 First, Japan's immigration detention system based on the Immigration Act adopts the 'all cases (in principle) detention principle', which means that if a person falls under the grounds for deportation under the Act, such as being in Japan beyond the period of stay, regardless of individual circumstances such as being in the process of applying for refugee status or the existence of fear of detention, the person is detained in the immigration detention centre. The deportation order is issued by the Immigration Services Agency of Japan (hereinafter referred to as the 'Immigration Agency'). In particular, if a deportation order is issued, the person can be detained indefinitely until s/he can be deported under the Immigration Act.

　 Second, Japan's immigration detention system, which allows a person to be detained indefinitely solely on the basis of a decision by an administrative body, the Immigration Agency, without judicial review by an independent body or court, is exceptional compared to criminal proceedings and is highly problematic in light of international human rights treaties such as the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture (CAT). These are issues that have been repeatedly recommended for improvement by the UN Human Rights Committee and other human rights bodies. In other words, detention should be a last resort, with consideration given to alternatives to detention, and an independent institutional review of the legality of continued detention must be ensured.

　 Third, if the detainee is a refugee applicant, the detention imposes serious restrictions on movement, contrary to Article 31(2) of the Refugee Convention, in which the State shall not impose more restrictions on the movement of refugees than necessary and shall grant them the necessary facilities to obtain permission to enter another country.

　 In Japan's immigration detention, there is no consideration for human rights in the form of excessive restrictions on 'liberty of person', and various human rights are violated by long-term detention ranging from several months to many years, including for people who have established a family life in Japan and have a Japanese spouse and children of Japanese nationality. Under these circumstances, many people suffer from mental and physical illnesses and even attempt suicide or actually lose their lives due to long-term detention with no prospects. As symbolised by the case of Ms. Wishma Sandamari, the inadequacy of the medical system in immigration detention facilities has also been frequently pointed out.

　In addition, the proposed Immigration Bill, which is to be debated in the current parliamentary session, will not improve these immigration detention conditions but will make them even worse. The content of this Bill is almost the same as the Bill that was submitted and abolished in 2021, but when the Bill was discussed at that time, 124 scholars published a statement calling for conformity with international human rights law. In light of this, the Immigration Billsubmitted to the current Parliament has the following problems:

　First, the introduction of an exception to the effect of suspension of deportation during the application for refugee status may violate the principle of non-refoulement, which is stipulated in Article 33(1) of the Refugee Convention and Article 3(1) of the CAT, etc., and Article 53(1) of the current Immigration Act, and is also customary international law.

　Japan's refugee status system focuses on whether the applicant is personally known and singled out by the government of the country of origin, for example, if there is an arrest warrant for his/her arrest or if he/she is a leader of an anti-government group, otherwise, s/he will not be recognised as a refugee, which is based on a unique individual grasp theory. The hurdle for the 'fear of being persecuted' requirement under the Refugee Convention is set very high. In addition, refugee status determination is not carried out by an agency independent of immigration control, and the immigration authorities are by no means sufficient to carry out their duties from the perspective of providing adequate protection to refugees, including investigating the human rights situation in different countries and interviewing applicants for refugee status. Although the number of refugees granted refugee status has been increasing in recent years, the refugee status rate in Japan is still very low, at less than 1% in 2021. In other G7 countries, such as Germany and Canada, the rate ranges from 20-60%. Under these circumstances, it is rather natural that some people will apply for refugee status more than once. Without reviewing the current situation where the refugee status system is not functioning, the proposed amendment to remove the effect of suspension of deportations for those who apply three or more times, etc., risks deporting those in need of protection from being persecuted, which could be a violation of the principle of non-refoulement.

　Second, there is concern over the creation of penalties for failure to deport after a deportation order has been issued. Those who refuse to leave often have unavoidable circumstances, such as fear of being persecuted if deported or having family in Japan. The former is a treatment that could violate the principle of non-refoulement, and the latter is also a serious human rights violation that undermines the principle of giving priority to the best interests of the child guaranteed in Article 3(1) of the Convention on the Rights of the Child and the right to family unity as stipulated in Articles 17 and 23 of the ICCPR.

　Third, there is concern about the new 'supervision measures' system. Even if 'custodial measures' are introduced, they will only be applied except in cases authorised at the discretion of the Chief Examiner, and detention will remain the principle. This is contrary to international human rights law, which uses incarceration only as a 'measure of last resort'.

　 As a state party to the ICCPR, the CAT and the Refugee Convention, Japan is obliged to comply with these Conventions in good faith. Human rights treaty bodies such as the Human Rights Committee and the Committee against Torture are performance monitoring bodies established by the Conventions, and the legal interpretations given by such bodies are recognised as highly authoritative as competent interpretations. Article 98(2) of the Constitution of Japan also establishes the obligation to comply with international law.

　Needless to say, treaties such as the ICCPR and the Refugee Convention prevail in law, including the Immigration Act. It is urgent that the proposed amendments to the Immigration Act also take seriously the concerns of international human rights organisations and undergo a fundamental reconsideration, including the possibility of scrapping the proposal.

　This year, Japan will preside over a summit of G7 countries that "share fundamental values such as freedom, democracy, human rights and the rule of law". As the G7 chairing country, Japan is expected to respond to domestic issues such as immigration detention and refugee protection in good faith and in accordance with international human rights standards, based on these fundamental values, as well as to deliberate in the Parliament.