Refugees and special permission

The revised Immigration Control Act enacted in June of last year (fully enforced on June 15th of this year) has been criticized, especially for its inclusion of provisions for deporting people who have applied for refugee status for the third time or later. .

I would like to reiterate that there are other aspects of this amendment that should be evaluated from the perspective of refugee protection, such as the establishment of a special permission to stay application system and a complementary protection system.

Current: Immigration Control Act Article 50, Paragraph 1

Article 50, Paragraph 1 of the current Immigration Control Act stipulates the requirements for special permission to stay as follows.

(Special provisions for decisions by the Minister of Justice)

Article 50 : In making the decision under paragraph 3 of the preceding article, even if the Minister of Justice finds that the objection is groundless, if the suspect falls under any of the following items, the Minister of Justice shall Special permission may be granted for the residence of foreign nationals.

(1) The person has received a permanent residence permit, (2) The person has previously had a domicile in Japan as a Japanese citizen, or (3) The person is residing in Japan under the control of another person due to human trafficking, etc. (4) When the Minister of Justice deems that there are other circumstances that require special permission for residence.

Amendment: Article 50, Paragraph 1 of the Immigration Control Act

On the other hand, the items in the same article and paragraph of the revised Immigration Control Act are as follows.

(1) The person has received a permanent residence permit, (2) The person has previously had a domicile in Japan as a Japanese citizen, or (3) The person is residing in Japan under the control of another person due to human trafficking, etc. (4) When the applicant has been recognized as a refugee or as a person subject to complementary protection; (5) When the Minister of Justice deems that there are other circumstances that require special permission for residence.

As mentioned above, being recognized as a refugee or a person subject to complementary protection has been newly added as a requirement for special permission to stay.

Special permission to stay is at the discretion of the Minister of Justice, so it does not necessarily mean that it will be granted just because it has been certified, but the Minister of Justice must always consider this as a factor in deciding whether to grant permission or not. (Point 1. Applicability of legal requirements: If the case goes to court and it is clear that it was not considered as a factor in the decision, there is a high possibility that it will be illegal. )

Current guidelines

The current special permission for residence is not based on an application system, but is only available in the final step of the three-trial system of deportation procedures. The Minister of Justice can grant the special permission even if there is no reason in the objection against deportation when each item of Article 50 Paragraph 1 can be applied.

For this reason, guidelines (current) have been published to clarify in what cases special permission is granted.

The current guidelines do not include any elements related to refugees (whether a person has been recognized as a refugee or is applying for refugee recognition).

New guidelines

This month (March 2024), new guidelines regarding special permission for residence were published on the Immigration Bureau’s website. (Link is available only in Japanese)

The following points are noteworthy in this guideline:

Necessity of humanitarian consideration (2) Even if the foreign national has not been recognized as a refugee or a person subject to complementary protection, it is clear that there is a situation where the foreign national has difficulty returning to his or her home country in light of the instability in his or her home country.

In other words, even if he/she has not been recognized as a refugee (including complementary protection, hereinafter referred to as refugee, etc.) , and no matter whether he/she is in the process of applying for the recognition, the process of determining whether or not to grant special permission must take the situation into account. (Point 2. Abuse of discretion (from the perspective of substantive judgment process control review): If the case goes to trial and it is clear that it was not included as a factor in the judgment, there is a high possibility that it will be illegal. )

Previous precedent

Tokyo District Court Judgment on April 13, 2007

(The deportation action without granting special permission to stay) was carried out without taking into account the extremely important factor of being a refugee, and “It is an illegal disposition that goes beyond the scope of the discretionary authority of the Minister of Justice.”

Tokyo District Court Judgment February 8, 2008

The same item (Article 50, Paragraph 1 of the Immigration Control Act) does not apply to deportation procedures for foreign nationals who have applied for refugee recognition and have not obtained a status of residence (Article 61-2-6, Paragraph 4 of the Immigration Control Act). In this way, the Immigration Control Act has excluded the application of Article 50, Paragraph 1 of the Immigration Control Act with respect to deportation procedures for foreigners without a residence status who have applied for refugee recognition. Article 61-2-2 of the Immigration Control Act stipulates that the Minister of Justice shall decide on the refusal of residence in Japan during refugee recognition procedures. When making a decision on a filing of an objection based on paragraph 1, it must be determined whether there are grounds for filing an objection to the special inquiry officer’s determination as to whether the person filing the objection falls under the category of a person subject to deportation. It is appropriate to interpret it as sufficient in terms of the separation interpretation.

Summary of two precedents

The above two cases have opposite conclusions. The first is that, even though the person falls under the category of “refugee” as defined in Article 2, Item 3-2 of the Immigration Control Act, any disposition that does not take this into account is illegal. The second is that it is not necessary to determine whether a person qualifies as a refugee during deportation procedures (determination of special permission to stay), as this is determined during the application procedure of refugee.

Summary

As can be seen from the completely different conclusions of the two cases above, it was not always clear that it was necessary to consider refugee eligibility in the conventional special permission for residence.

If the judiciary had done so, I think the Immigration Bureau’s decision would have been even more negative.

By clearly stipulating this in the law and guidelines, this amendment will strongly ensure that the determination of eligibility for refugee status is subject to examination by the Immigration Bureau as part of the procedure for special permission to stay.

In other words, as stated in point 1 above, the first thing to consider is whether there is “certification” as it is clearly stipulated in the law. As mentioned in point 2, even if it has not been “certified”, if there is an objective fact that should be protected, it is necessary to take that into account.

Although the focus is only on the provision of “forcibly returning people who have applied for refugee status for the third time or later,” by making use of the institutionalized special permission to stay, I hope the overall immigration system will be one that fully considers human rights.

Japan Immigration News