By Yusaku Yoshikawa

On August 10, 2021, the Immigration Services Agency of Japan (ISA) published its final report on the recent death of a young female detainee from Sri Lanka in an immigration detention facility. The report admits that the ISA failed to understand her poor health conditions and did not take appropriate medical measures.

The role of the ISA in the death of the detainee was seized on by protesters to push for a halt to a proposed amendment of Japan’s Immigration Control and Refugee Recognition Act. Opponents of the amendment argue that it would have entitled the ISA to deport too many detainees too easily, including those in the process of seeking asylum.

Seemingly, this discussion was closed after the amendment was rejected and the ISA promised to implement organizational reform to improve its medical responses toward detainees. But is this a happy ending for opponents of the amendment?

The cabinet approved the amendment and submitted it to the Diet on February 19, 2021. The amendment would have been a major reform, including measures to protect so-called “quasi-refugees” as well as “supervisory measures.” The former refers to non-refugees in need of protection according to international human rights law and the latter refers to a system to release detainees from detention facilities with the help of their supporters.

The amendment’s most controversial proposal was to entitle the ISA to forcefully repatriate detainees whose application for Refugee Status Determination (RSD) had been rejected twice.

For the ISA, the amendment was proposed in the context of its increasing focus on illegal overstayers in Japan. According to the ISA, over 80,000 foreigners are illegally staying in Japan and some 3,000 of them refuse to return to their homeland despite a deportation order. The ISA claims that they are abusing Japan’s RSD application system to stay in the country because they cannot be repatriated while the application process is ongoing.

For its supporters, the amendment’s significance is threefold: to accelerate the RSD process for detainees, to swiftly repatriate detainees deemed unqualified to stay in Japan, and to shorten the detention period of the RSD applicants in immigration facilities. Japan’s long detention period has long attracted international attention and criticism.

Opponents disagree. They argue that the ISA should set upper limits on detention periods rather than deporting RSD applicants. The defiance of expulsion orders by detainees may often come from serious concerns over persecution and the threat of death in their country of origin. They argue that the commencement of deportation under the amendment may violate non-refoulement, which applies to RSD applicants whose refugee status is pending.

Another criticism is that the Japanese immigration system is “bereft of fairness and transparency.” The reason given for RSD disqualification usually remains undisclosed. International agencies like the United Nations High Commissioner for Refugees have questioned Japan’s insistence on the provision of “material constituting reasonable grounds” by RSD applicants in exile who might otherwise have trouble preparing such evidence.

Japan’s refugee acceptance rate is remarkably low at only 1.2% (47 out of 3,936 applications) in 2020. In 2018, the Ministry of Justice tightened regulations on refugee recognition by limiting work permits for asylum seekers, which halved applications in the following year.

Exemplified by the death of the Sri Lankan asylum seeker, critics distrust the immigration service’s treatment of asylum seekers. It took five months after her death for footage from the immigration center to be finally disclosed to the bereaved family. Documents provided by the ISA to the family related to her case were almost entirely blacked out.

The ISA strongly rejects these criticisms. It argues that detention limits will encourage detainees to intentionally delay the RSD process until the deadline, which will enable “all foreigners who should be deported from Japan to stay in the country.” This is not seen as an optimal outcome as “many foreigners who do not follow the rules in Japan may keep staying in the country.” The ISA claims that Japan’s RSD process properly follows refugee conventions and that individual cases are carefully examined by impartial refugee inquirers.

The debate has exposed a gulf between the ISA and its opponents in the fundamental attitudes toward overstayers. The former attribute a responsibility for one’s overstay to the individual detainees and argue they should be deported from Japan.

On the other hand, the latter seek more flexibility and transparency in their treatment. They consider overstayers to be victims of the situation in their homeland as well as Japan’s structural problems such as its treatment of migrant workers.

The gulf between the ISA and its opponents has only widened. A withdrawal of the amendment bill combined with the ISA’s promises for improvement of the organization is not an ending, let alone a happy one. If anything, the current situation has highlighted the importance of thorough discussion on the provision of impartial treatment to detainees and asylum seekers.

Yusaku Yoshikawa is an aid consultant at JIN Corporation.

The News Lens has been authorized to republish this article from East Asia Forum. East Asia Forum is a platform for analysis and research on politics, economics, business, law, security, international relations and society relevant to public policy, centered on the Asia Pacific region.

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