30 Juni 2020

New Salt into an Open Wound

Covid-19 Entry Bans and Foreign Nationals' Rights in Japan

The entry ban imposed by the Japanese government on April 3 in the wake of the Covid-19 pandemic has shed a new light on the somewhat “schizophrenic” situation that foreign nationals in Japan often find themselves in. While the Japanese government is slowly trying to open the labor market for foreign talent, launching internationalization campaigns at universities and building towards an international image surrounding the upcoming Olympic Games, the reality of foreign workers’ rights protection in Japan looks bleak in many respects. In fact, foreign residents in Japan still face social and legal discrimination of various kinds, like being denied welfare benefits or being overtly discriminated against when looking for housing.

Left Out

The entry ban has provoked strong criticism from Japan’s international community, including a petition to the Cabinet demanding exceptions to be made for those holding long-term visas, currently signed by little over 9500 people (June 26, 2020). News outlets soon published stories of foreign workers stranded abroad after brief visits to their home countries, of separated families and of people being unable to attend their loved ones‘ funerals in fear of not being allowed back into the country they call their home.

It must be added that Japan is the only G-7 state not providing general exceptions for long-term residents in its entry restrictions. Exceptions were made only for those who left Japan before the current restrictions came into effect and who are holding permanent residency or spouse visas.

On May 27, the Ministry of Justice responded to critics by announcing that exceptions will be made on humanitarian grounds without providing any clear criteria. These were finally published on June 12 but are too narrow to provide actual relief. For those who left Japan after the entry ban was imposed, the only exceptions are for cases of visiting relatives who are in critical condition or attending a relative’s funeral, receiving medical treatment abroad, and appearing in court as a witness. For those who left Japan before the entry ban was imposed, additional exceptions are provided for separated families and children enrolled in Japanese schools. Meanwhile, those who are in Japan solely on work visas and have no family strings attached are still left in limbo. Foreign academics at Japan’s universities who traveled home during the spring break, for example, are still unable to return to their workplace. Foreign workers now have to rely on the patience of their employers after being stuck abroad for almost 3 months. In another update on June 18, the Japanese government announced that it will ease restrictions for long-term residents and business travelers from Vietnam, Thailand, Australia and New Zealand on a daily quota of 250 people.

The Legal Dimension

Legal basis for the entry ban is Article 5 (1) (xiv) of the Immigration Control and Refugee Recognition Act (ICRRA). The provision states that “a person whom the Minister of Justice has reasonable grounds to believe is likely to commit an act which could be detrimental to the interests or public security of Japan” can be denied entry. It is acting as a general clause to account for cases not included in the more specific items of the ICRRA. This broad provision reflects the great discretionary power that Japanese law vests in the Minister of Justice when it comes to matters of immigration. It is this discretionary power that has historically created conflicts with the constitutional rights of foreign nationals in Japan.

The Constitutional Dimension – Open Wounds

The Japanese constitution does not textually include foreign nationals in its rights section. While the English version of the Chapter III title speaks of “Rights and Duties of the People”, the Japanese document uses 国民 (kokumin), meaning “citizens”. In the early days of the 1947 constitution it was thus unclear whether the constitutional guarantees of rights also extend onto foreign nationals in Japan. One rather infamous decision of the Japanese Supreme Court that lifted this uncertainty, or at least attempted to do so, was the so-called McLean Case of 1978. In this case, a US citizen was denied extension of his visa because he had actively participated in anti-Vietnam war protests in Japan.

The Supreme Court held that the rights granted by the constitution generally apply to foreign nationals as well, “except for those rights, which by their nature, are understood to address Japanese nationals only”, in particular political rights (Sup. Ct. G. B., 10/04/1978, 32 Minshu 1223). However, as there is no constitutional or statutory duty of the state to let foreigners enter or stay in Japan, their rights do “not extend so far as to bind the exercise of discretionary power of the state”. This means that the Minister of Justice has unlimited discretion in matters of immigration.

In another decision in 1992 the Supreme Court held that the freedom of movement in Article 22 of the constitution does not give foreign residents a right to re-enter Japan after traveling abroad, as questions of immigration should be left to the discretion of the Minister of Justice („Morikawa Case“, Sup. Ct. 1st p. b., 11/16/1992, 166 Shumin 575). Japanese constitutional doctrine, like many others, also knows no direct extraterritorial application of constitutional rights for foreign nationals. While not a unique feature of Japanese law, the enjoyment of constitutional rights for foreign nationals is limited to Japanese territory. In short, foreigners in Japan generally enjoy some constitutional rights, but the exercise of those rights, like the freedom of speech, can lead to being expelled from the country.

Critics have claimed that the Supreme Court basically reversed the traditional hierarchy of norms, by having constitutional rights be defined by administrative and legislative acts. Reversing the hierarchical order of norms by putting administrative discretion above the “supreme law of the nation” (Article 98) does not seem to support the promise of Article 11 of the constitution that the “rights guaranteed to the people by this Constitution shall be conferred upon the people […] as eternal and inviolate”.

If the courts were to depart from their restrictive jurisprudence on foreigners‘ rights and immigration, then the current entry ban would raise doubts in light of the equality clause in Article 14 of the Japanese Constitution.

Although the list of prohibited forms of discrimination in Article 14 does not include the criteria of nationality, the Supreme Court has held that the specific categories in Article 14 are to be understood as explanatory and not restrictive, thus opening Article 14 for a broad protection against discrimination (Sup. Ct. G. B. 04/04/1973, 27 Keishu 265). In line with this, the Tokyo District Court held in 2011 that denying an Iranian refugee admission to a public university’s nuclear engineering program on security grounds, was discrimination on the basis of nationality and thus a violation of his rights under Article 14.

Following this reasoning, a case against the imposed entry ban could be made. Granting entry to Japanese citizens, and soon also to citizens of selected countries, while all other foreign residents are left out certainly is a distinction based on nationality. Considering that long-term residents usually pay taxes just as citizens do, one could claim that they should thus be treated accordingly and not put in the same category as tourists.

Recognizing that the entry ban is discriminatory would, however, only be the first step. Article 12 contains a general reservation of “public welfare” to the guarantee of constitutional rights. To give shape to this limitation and to balance constitutional rights against legitimate interests of the state, the Japanese judiciary has used varying instruments, ranging from a very generous rationality or reasonableness test, to something that is observed to be coming closer to the German model of proportionality (on administrative law here). Courts in Japan have thus used vocabulary ranging from „reasonableness“ to „necessary and reasonable“ (p. 5) when defining the criteria that state action has to meet in order to comply with the constitution. In general, however, reasonableness remains the central benchmark for the courts. This approach has led to a very lenient standard of review on legislative and administrative action, combined with an overall careful exercise of judicial review. This is also one explanation for the extremely low number of Supreme Court decisions on the unconstitutionality of laws. The reasonableness of allowing Japanese citizens to travel abroad freely, while foreign workers have to fear losing their job because they are stuck abroad, can at least be questioned.

A mere test of reasonableness fails to create an effective framework for anti-discriminatory jurisprudence. If the only thing guarding minority rights against discrimination is the low hurdle of reasonableness or rationality, then the protection of minority rights will ultimately be left to majoritarian views of what is reasonable and what not. In other words, effective protection of minority rights requires effective restraints on executive discretion.

Were the Japanese judiciary to apply a strict proportionality test, an entry ban without exceptions for long-term residents would very likely fail the requirement of necessity, as quarantine measures for those seeking entry can easily be envisaged. In fact, one only has to look as far as to South Korea, which provides exactly that for holders of long-term visas.

Opening Up

Judging from the Supreme Court’s past decisions, the outlook for foreign residents under the current entry ban seems grim. However, almost 30 years have passed since Morikawa, when the Supreme Court last had to decide on the relationship of foreigners’ rights and immigration matters. In recent decades it has taken a slightly more active stance on the protection of constitutional rights, as 5 out of 10 cases in which it declared a law as unconstitutional were decided since the turn of the century. A similar trend can be observed with respect to judicial review of administrative action . The Supreme Court has also begun to take a stronger stance on anti-discrimination issues in recent rulings concerning e.g. rights of children born out of wedlock, religious minorities (Jehovah’s Witness Kendo Refusal Case, p. 14) and, although slowly, women’s rights. So even though the Supreme Court of Japan is generally viewed to be the most conservative court in the field of constitutional jurisprudence, a judgment in favor of foreign residents‘ rights does not seem as impossible as it used to. It must be admitted however, that it remains highly unlikely that it would extend the recent trends in anti-discrimination rulings onto foreign nationals, if put against the backdrop of its past decisions on foreign nationals‘ rights and immigration.

The entry restrictions have just been extended until the end of July. It remains unclear whether foreign residents in Japan can expect any substantial relief after that. The fact that foreign nationals only make up around 2% of Japan’s population does not make lobbying for their interests any easier. Above all, the easiness with which the current entry ban was imposed, and the reluctance of the government to provide meaningful assistance to long-term residents is worrying. One positive aspect is that, should there be a legal challenge, and should it reach the Supreme Court, it would provide updated insights into the scope of constitutional rights of foreign residents in Japan. If Japan wants to be treated as a reliable partner and marketplace for international business, then constitutional rights must not be considered void for foreign nationals, not even in times of emergency.

I would like to explicitly thank Professors Shigenori Matsui, Tom Ginsburg and Yasuo Hasebe for reading the draft for this post and providing helpful feedback. All errors are of course my own.

SUGGESTED CITATION  Knör, Mika: New Salt into an Open Wound: Covid-19 Entry Bans and Foreign Nationals' Rights in Japan, VerfBlog, 2020/6/30, https://verfassungsblog.de/new-salt-into-an-open-wound/, DOI: 10.17176/20200630-225047-0.

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