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  • 誰が人間としてみなされるのか?不安ばかりが残った入管法改正案の撤回 Who counts as human? Lingering concerns over the withdrawn immigration bill

誰が人間としてみなされるのか?不安ばかりが残った入管法改正案の撤回 Who counts as human? Lingering concerns over the withdrawn immigration bill


On May 18, the bill to revise the Immigration Control and Refugee Recognition Act (ICRRA) was withdrawn by the LDP. If passed, this bill would have made this country an increasingly hostile place for asylum seekers.

Despite the increased opposition against this bill in recent months, its passing appeared inevitable; it had the backing of the Suga Cabinet and the Diet currently holds a conservative majority. What changed?

On 6 March 2021, Wishima Sandamalia, a 33-year-old Sri Lankan woman and a survivor of domestic violence died at Nagoya Regional Immigration Bureau after requests for provisional release were denied by immigration officials. 3 months later, her death remains unexplained.

The way this case was spotlighted during the deliberations over the ICRRA bill portrayed Wishima’s life as a “grievable life” -- and yet so many injustices perpetrated by the Japanese immigration system rarely capture attention to this degree. It seems likely the bill would have passed without this public backlash directed at the Ministry of Justice (MOJ) and the Immigration Services Agency (ISA).

Below, some problems with the now-withdrawn bill are discussed in the context of international legal standards. Japan’s unwillingness to adhere to human rights obligations is apparent in both the ongoing and this proposed practice. It shows us how asylum seekers and irregular migrants are seen by the state: not as human beings entitled to human rights, but as “others” to manage.

The withdrawal of the bill does not signify a change of this stance. Rather, it leaves us with lingering concerns over the content of future revisions.

Why did the bill come about?

The proposals to revise the ICRRA were introduced by the MOJ’s Expert Committee in June 2020. It had been framed as a response to the increase in the number of “overstayers” and persons who had refused deportation orders being detained long-term. Note: in 2019, 60% of deportation refusals were by persons applying for refugee recognition.

This quick fix intended to decrease the number of people detained long-term by making it easier to deport them.

The suspension of deportation

Currently, asylum seekers with pending applications and appeals in Japan are automatically protected from deportation by 送還停止効 (“the suspension of deportation”). The bill had proposed to remove this “suspension”.

Its aim was to allow for the “prompt deportation” of persons who have had their asylum application refused twice, even if in the process of an appeal or a third application (UNHCR 2021: 9).

Under international law, the act of deporting persons at risk of persecution or other irreparable harm in their country upon return constitutes refoulement. The absolute prohibition against refoulement is enshrined in the principle of non-refoulement.

This principle is central to the 1951 Refugee Convention (Article 33). It stipulates that refugees cannot be refouled. In addition to being prohibited by other human rights instruments that Japan is party to (e.g. CAT, ICCPR), this principle is customary international law.

While the Convention states that countries “cannot refouler a refugee”, “refugees” include persons who have not had their status formally recognised by a refugee status determination (RSD) procedure. Individuals do not become refugees through RSD procedures; rather, the moment a person fulfills the Convention criteria of crossing an international border to escape serious harm, they are a refugee. This means that the principle applies to those who are awaiting RSD or appeal.

Concerning this proposed removal of the “suspension”, MOJ gave the impression that for an asylum application to be considered twice is enough to ensure protection to those who are entitled to it. However, as pointed out by UNHCR, Amnesty International, and others, in the context of Japan’s strict and often inconsistent RSD procedures, that would not have been the case.

• Around 10 percent of asylum applications (2011-2018) succeeded after their third attempt or appeal in court.
• Around 20 percent of those recognised as refugees and around 41 percent of those granted humanitarian status (2010-2018) received their statuses after being issued deportation orders (JFBA 2020).

Errors in RSD are occurring in this system, often criticised for its lack of transparency, consistency and independent third-party checks to ensure appropriate decision making is taking place. Therefore, this change would have entailed greater risks of refoulement, contrary to Japan's international obligations towards asylum seekers.

Indefinite detention

Immigration detention infringes upon the human right to liberty, and can only be used as a “last resort” under international standards. In 2018, UNWGAD reiterated that, “irregular entry and stay in a country by migrants should not be treated as a criminal offense”.

In Japan, detention is mandatory for non-nationals without status, meaning it is not exceptional or a measure of “last resort”. That is, decisions to detain do not require judicial approval or review under domestic law (UNWGAD 2020). This makes detention arbitrary -- meaning that detention occurs without a legitimate reason or a legal process -- which is a violation of Japan’s obligation under the ICCPR, Article 9.

In a 2018 internal communication concerning persons who have been issued a deportation order, MOJ categorically stated that indefinite detention is permitted, without reference to alternatives other than provisional release. This reiterated Article 52(5) of the ICRRA. Both domestic law and practice show a clear stance of violating human rights standards.

This ongoing practice, which arguably amasses the most international criticism*, was not addressed by this recent bill. MOJ’s defense to not limit detention was as follows: “foreigners who should be deported will be able to live in Japanese society, making it complicated to properly manage them”.

So what?

The power of activism in opposing this bill should not be discounted. However, the likelihood that it would have passed without the wider public backlash caused by Wishima’s death gives us reason to be deeply concerned for future attempts to revise the ICRRA.

That is, despite this recent step away from the wrong direction, the fundamental stance of the state remains unchanged.

The bill’s aim to increase deportations and the failure to address indefinite detention indicates a continued rejection of Japan’s international obligations toward asylum seekers and irregular migrants.

“Who counts as human? Whose lives count as lives? And, finally, what makes for a grievable life?”

(Butler 2006: 20).

State-sanctioned human rights violations against asylum seekers and irregular migrants evidence the way the state considers their humanity. In the case of Wishima and many others who were or continue to be detained and face inhumane treatment, their violations occur because the state prioritises “managing” them above all else.

Of any ICRRA revisions that may be introduced in the future, we must remain watchful of the ways in which the state will continue to circumvent its human rights obligations toward asylum seekers and irregular migrants.

Whenever "management" is used as an excuse to justify policies that infringe upon human rights, we must see it as a red flag -- for there are no justifications to treat some human beings as less human than others.

*International concerns over indefinite and arbitrary detention in Japan have been raised for over a decade: Committee Against Torture in 2007 and in 2013, the Human Rights Committee in 2014, and by the Committee on the Elimination of Racial Discrimination in 2018.











難民認定申請を2度拒否された人は、たとえ不服申し立てや3度目の申請中であっても、「迅速な強制送還」が可能になっていたのです(UNHCR 2021: 9)。





• 難民申請(2011年~2018年)のうち、3回目の試みや裁判所への訴えを経て認められたのは約10%。
• 退去命令を受けた後に、それぞれの申請が認められた割合は、難民として認められた人の約20%、人道配慮を与えられた人の約41%(2010年~2018年)。(日弁連2020年)




しかし日本では、ステータスのない他国民には収容が義務づけられており、例外的な措置や「最後の手段」ではありません。つまり、収容の決定には、国内法上、司法の承認や審査を必要としません(UNWGAD 2020)。このことは、収容を恣意的にするものであり、正当な理由や法的手続きなしに行われることを意味し、国際人権規約第9条に基づく日本の順守義務に違反しています。








(Butler 2006: 20)




Butler, J. (2006). Precarious life: The powers of mourning and violence. Verso Books.

JFBA, 2020. “Statement on the ‘Proposal to Solve the Issues of Deportation Evasion and Long-term Detention’”
OHCHR, 2018. “The principle of non-refoulement under international human rights law”
UNHCR, 2021. “UNHCR comments on the Bill for partial amendments to the Immigration Control and Refugee Recognition Act submitted to the 204th Diet session of year 2021 Based on the Recommendations of the Sub-Committee on Detention and Deportation (SCDD), 7th Immigration Control Policy Discussion Panel 9 April 2021”
UNWGAD, 2020. “Opinions adopted by the Working Group on Arbitrary Detention at its eighty-eighth session, 24–28 August 2020 Opinion No. 58/2020 concerning Deniz Yengin and Heydar Safari Diman (Japan)”

ソシエタス総合研究所 研究員秋吉 湖音
日本で生まれ、海外で育つ。King’s College London (BA in War Studies & Philosophy) 卒業後、King’s Undergraduate Research Fellowとして、ロンドンで移民達がいかに暮らしを営んでいるかの理解を目的として、特に法的なステータスとジェンダーのインパクトに焦点を当てつつ、Migrant Voices in Londonのプロジェクトを主催。つづいて、オックスフォード大学にて MSc in Refugee and Forced Migration Studies を修める。2021年4月からソシエタス研究所で研究員として勤務。
日本で生まれ、海外で育つ。King’s College London (BA in War Studies & Philosophy) 卒業後、King’s Undergraduate Research Fellowとして、ロンドンで移民達がいかに暮らしを営んでいるかの理解を目的として、特に法的なステータスとジェンダーのインパクトに焦点を当てつつ、Migrant Voices in Londonのプロジェクトを主催。つづいて、オックスフォード大学にて MSc in Refugee and Forced Migration Studies を修める。2021年4月からソシエタス研究所で研究員として勤務。
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