Judgment on Same-sex Partner Residence Status: Lawyers' Statement (October 1, 2022)

Summary
　The Tokyo District Court issued verdicts on Friday, September 30, 2022 in a pair of lawsuits concerning the immigration rights of binational same-sex partners living in Japan. Here, we summarize the Court’s decision and comment from our perspective as the legal team representing the plaintiffs.

　In 2019, we filed two lawsuits: In Case #1, an American citizen plaintiff (“B”) asked the Court to reverse the Immigration Bureau of Japan’s rejection of his visa “change in status” application to “long-term resident” (定住者) based on his same-sex relationship with his Japanese partner, “A”. In Case #2, both “A” and “B” sought “state compensation” for the Bureau’s actions, utilizing State Redress Act(No. 125 of 1947), a mechanism by which plaintiffs can ask courts to identify and redress for government wrongdoing.

　In Friday’s ruling, the Court dismissed Case #1; they did this primarily on the grounds that it failed to meet certain litigation requirements. In Case #2, while the Court found that the Bureau’s rejection of A’s request for long-term resident status was not unconstitutional, they did conclude that it was illegal to uniformly deny a different category of visa -- called “special activities” (特定活動) -- to foreign same-sex spouses of Japanese citizens, given that, as the Court noted, the Immigration Bureau had been routinely issuing this category of visa for “humanitarian” reasons to foreign same-sex spouses of foreign citizens based on the Bureau’s Heisei 25 (2013) official notification. The Court pointed to the Bureau’s interpretation of the notification that foreign nationals who are same-sex marriage partners of Japanese nationals fell outside of the scope of this special activities visa. The Court concluded that this interpretation goes against the equal protection intent of Article 14 of the Constitution.

　Following this, the Court then concluded that, if one considers the specific circumstances of A and B’s case and their relationship as partners (spouses), there is a need for the humanitarian considerations for A and B to live stably together in Japan, and that it is objectively unlawful for the Bureau to deny the change of B’s qualification to a “special activities visa.”

　At the same time, however, the Court rejected the specific request for compensation in Case #2, reasoning that because there was no public question or judgement concerning whether Japanese and Foreign binational same-sex couples should be included in the scope of the notification regarding the implementation of the notification in 2013, there was no negligence by the Director of the Tokyo Regional Immigration Bureau.

Comment
　Up until now, foreign nationals who are same sex partners with Japanese citizens have not been granted relationship-based visas at all. This has been the case regardless of their marital status, the length and sincerity of their relationships, and so on. Given these conditions, a foreigner attempting to live with their Japanese partner in Japan needed to obtain some other type of visa unrelated to the relationship status, such as a work visa, and they then had to maintain the work or other status or give up living in Japan and move overseas.

　In this decision, the Court, by first recognizing that the Immigration Bureau was acting unconstitutionally against the intention of Article 14 as well as in recognizing the humanitarian imperative for providing stable living conditions, did open the door for these binational same sex couples to live stably in Japan. On the other hand, we do consider it unjust that this verdict avoided recognizing that same-sex partnerships should be understood as families protected under the Japanese Constitution as well as under international human rights law, and that the practice of treating heterosexual couples differently from same-sex couples constitutes discrimination based on sexual orientation.

　In this same vein, we think it is inappropriate that the Court claimed that it was not necessary to rule on constitutional and human rights questions in this case for the main reason that the notification, which is a subordinate norm of the Immigration Control and Refugee Recognition Act, which is subordinate to the Constitution and international human rights law, is not applicable to this case. 

　Finally, the decision regarding Case #1 to dismiss on the grounds that it failed to meet certain litigation requirements by interpreting cases in which a court can make a decision on the status of residence in a very narrow way, and the decision regarding Case #2 to deny the claim for state compensation on the grounds that there was no negligence while declaring it illegal not to grant B status of residence based on partnership, are not appropriate because they close the way for judicial relief to those suffering from wrong decisions and human rights violations by the state.

Request to the Immigration Bureau
　We ask that the Immigration bureau accept the determination of the Court that there is a humanitarian need to provide B with a resident status, and we request that they immediately provide a stable resident status to him. We also request that the Bureau replace its 2013 notification with one recognizing the issues in this case, in order that Japanese and foreign binational same sex couples like A and B will be able to remain and live stably in Japan.