On 9 June 2023, the Japanese Diet passed a bill to amend the Immigration Control and Refugee Recognition Act (ICRRA). As a result of this amendment, on 1 December 2023, Japan, which has been urged to accept more refugees, will introduce a new category of status for asylum seekers called hokanteki hogo taishosha (persons to be granted complementary protection).
This status will be granted to people who fear persecution for reasons other than the five listed in Article 1A(2) of the 1951 Refugee Convention – race, religion, nationality, membership of a particular social group or political opinion – but who meet other criteria of the Convention’s definition of a refugee.
Policies to protect people who do not meet the definition of a refugee have been formalised in other developed countries in recent decades. The European Union provides that those who fall outside the refugee definition may still qualify as ‘persons eligible for subsidiary protection’, defined as third-country nationals or stateless persons who would suffer serious harm if returned to their country. In Japan, the recommendation to introduce subsidiary protection was made in 2014 by a special committee on Japan’s refugee recognition system, although it will not be formalised until 2023.
Even before the formalisation of this new category, Japan has been granting Special Permission to Stay (SPS) on humanitarian grounds to individuals who have not been recognised as refugees. The introduction of this status does not necessarily imply an expansion of Japan’s refugee protection regime. However, there are important differences between SPS and the new category.
While SPS is granted at the discretion of the Minister of Justice, individuals can apply for hokanteki hogo taishosha status if they believe they do not meet the Convention’s definition of a refugee but wish to seek asylum in Japan. Individuals who are determined to fall into this new category will also be allowed to participate in a settlement assistance programme for refugees, while those under the SPS will not be allowed to do so.
While those granted SPS are usually granted a one-year residence status for ‘designated activities’, those categorised as hokanteki hogo taishosha are granted a maximum of five years as ‘long-term residents’, the same status granted to Convention refugees. The conditions for permanent residence in Japan are also relaxed for those granted hokanteki hogo taishosha status, in the same way as for Convention refugees.
Despite these changes, it is too early to characterise this as a departure from Japan’s restrictive refugee policy. The bill that created this new category also included controversial amendments to the ICRRA. Under the current ICRRA, the deportation of asylum seekers is suspended while their asylum applications are being processed. The amended bill removes the suspension of deportation for asylum seekers who have applied for asylum for the third time or more and do not have a valid residence status – unless they provide new evidence of their claim. This new rule will come into force by June 2024.
The Japanese government has justified this controversial change by claiming that Japan’s refugee recognition system has been abused by ‘bogus refugees’ who want to avoid deportation and work in Japan. Human rights campaigners point out that this rule violates the principle of non-refoulement, which prohibits states from returning asylum seekers to a country where their freedom or life may be threatened.
Under the current system, people whose asylum claims are rejected can request an administrative review by a panel of external experts called Refugee Examination Counsellors (RECs). The RECs provide an opinion to the Secretary of State for Justice, although this is not legally binding.
While there are more than 100 RECs, several media outlets reported that one REC alone reviewed more than 20 per cent of the cases. This REC, when invited as an expert witness to a parliamentary committee in 2021, claimed that she could ‘hardly find refugees’ among the applicants for administrative review. This has often been cited by the government to justify the controversial amendment to the ICRRA. This revelation has raised suspicions among human rights defenders, who argue that the Immigration Services Agency, the government agency responsible for administering Japan’s refugee recognition system, has arbitrarily selected certain RECs to be involved in cases in order to limit the number of people granted refugee status.
While creating the new category of hokanteki hogo taishosha, the government has made covert efforts to minimise the admission of refugees to Japan. Japan’s reluctance to accept refugees has continued even after its surprising decision to accept more than 2,000 Ukrainian refugees following the Russian invasion. That decision was motivated by concerns about its status in international society, particularly in comparison with other G7 countries, and did not represent a change in Japan’s refugee policy. The same could be said of this new status category – it could also be a superficial reform to deflect criticism of its refugee policy.
It has been widely reported that the number of asylum applications in Japan is expected to reach a record high in 2023. As travel restrictions imposed by the COVID-19 pandemic are lifted, more asylum seekers appear to be arriving in Japan. The socio-political turmoil caused by conflicts around the world is also thought to be contributing to the increase. It remains to be seen whether Japan’s updated refugee policy goes far enough to ensure that Japan provides adequate protection to those in need.