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Asia & the Pacific Policy Studies, vol. 2, no. 1, pp. 155–168
doi: 10.1002/app5.67
Original Article
Migration and Law in Japan
Atsushi Kondo*
Abstract
It has been claimed that Japan is not a
country of immigration. Where is Japan’s dis-
tinctiveness evident, and what features does it
share with other countries? This article exam-
ines the unique points of Japan and investi-
gates problems of residence and citizenship.
This article argues that Japan’s historical
legacy and international human rights have
had an impact on Japan’s migration and law,
takes into consideration the need for new poli-
cies and examines some thorny issues.
Globalisation and an ageing population are
generating a debate on implementing a more
liberal admission policy for highly skilled
workers, students and nurses/care workers.
Thorny issues comprise ethnic discrimination
underscored by a colonial legacy and the still
existing cold war in East Asia. Drawing a
comparison with selected developed coun-
tries, this article indicates several challenges
for Japan’s migration and law. Markedly,
Japan is the only developed industrialised
democracy that does not have an anti-
discrimination law.
Key words: immigration law, regularisation,
citizenship, quota refugees, highly skilled
migrants
* Faculty of Law, Meijo University, Nagoya 468–
8502, Japan; email ⬍akondo@meijo-u.ac.jp⬎.
published by Crawford School of Public Policy at The Australian National University and Wiley Publishing Asia Pty Ltd.
This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License,
which permits use and distribution in any medium, provided the original work is properly cited, the use is non-commercial
1. Introduction: Japan’s Uniqueness?
It has been claimed that Japan is not a country
of immigration (see Yamanaka 2008, p. 187)
while some define it as a recent country of
immigration (Cornelius & Tsuda 2004, p. 32).
Indeed, as shown in Table 1, Japan’s ratios of
net migration, foreign population1 and citizen-
ship acquisition are relatively small compared
with selected immigration countries. However,
Japan has a rapidly aging and decreasing popu-
lation (see Table 2). So it must be appropriate
to show it to be ‘a potential immigration
country’ (Kondo 2008, p. 17). Elaborating
further on the reasons for ‘potentiality’, Japan
has admitted (i) quota refugees since 2010, and
introduced (ii) a point system in 2012. Histori-
cally, these two policies constitute important
indicators in the transformation to an immigra-
tion state, but the messages were self-
contained and did not reach or attract the
persons who want to migrate. If the govern-
ment reforms the strict eligibility criteria and
draws attention to the foreign public, applica-
tion numbers will increase. Furthermore, while
the 2020 Tokyo Olympics will attract short-
term migrant workers for construction proj-
ects, the technical intern training system,
disguised as a ‘learning’ program, should be
converted to a contract workers program.
What is the uniqueness of Japan and what
features does it share with other countries?
First, I will examine the unique points in the
history of Japan’s immigration law. Then, I
will discuss major problems of migration in
Japan, especially on residence and citizenship.
1. There is no data on the ratio of foreign-born population
in Japan.
© 2015 The Author. Asia and the Pacific Policy Studies
and no modifications or adaptations are made.
156 Asia & the Pacific Policy Studies January 2015

Table 1 Key Figures on Migration in Selected States in 2010

AU CA SE UK US GE FR JP
Net migration rate (per 1,000 population) 7.7 7.2 5.3 3.9 2.3 1.6 1.2 −0.6
Ratio of foreign-born population (%) 26.5 19.9 14.8 11.5 12.9 13.0 11.6 —
Ratio of foreign population (%) — 5.4† 6.8 7.4 6.9 8.3 6.0 1.7
Ratio of citizenship acquisition (%) — 11.4‡ 5.5 4.5 2.9 1.5 3.8 0.6

†2006, ‡2007.
AU, Australia; CA, Canada; FR, France; GE, Germany; JP, Japan; SE, Sweden; UK, United Kingdom; US, United States.
Source; OECD (2013), pp. 235, 243, 255, 267, 269, 301, 307, 309, 362–3, 381–2, 400.

Table 2 Projections of Changes in the Total Population, Working-Age Population and Aged Population Rate
between 2000 and 2050

Productive age Aged population

Country Population population (15–64) (65 and above) (%)
JP −17,386,000 −30,569,000 17.2–36.5
GE −10,946,000 −17,171,000 16.3–32.7
SE 3,062,000 1,359,000 17.3–22.8
FR 13,999,000 3,631,000 16.0–25.5
UK 14,180,000 4,471,000 15.8–24.7
AU 14,476,000 7,373,000 12.4–22.0
CA 14,531,000 5,643,000 12.5–24.7
US 116,259,000 53,470,000 12.4–21.4

Note: Medium variant.

Source: Population Division of the Department of Economic and Social Affairs of the United Nations (2013).

Furthermore, I will argue that Japan‘s history
and international human rights have had an
impact on Japan’s immigration law, and taking
consideration to the need for new policies for a
globalising and ageing society as well as the
thorny questions of the still extant cold war
and ethnic discrimination. Finally, I will sum
up the challenges of Japan’s migration and
law, making a comparison with selected devel-
oped countries.
2. A Brief History of Japan’s Migration
and Law
2.1 Six Periods of Chronological
Development
In Japan, the chronological development of
immigration law can be illustrated by the six
periods (Kondo 2001, pp. 8–9) outlined in
Table 3. After World War II (WWII), signifi-
cant reforms in the legal framework and inte-
gration policy may be characterised by the
so-called ‘52 Regime’, ‘82 Regime’ and ‘90
Regime’.
• No immigration during the period of
national seclusion (1639–1853). The shogu-
nate suspected that Catholic traders and mis-
sionaries were forerunners of a military
conquest by European powers and prohib-
ited both nationals and non-nationals from
entering or leaving the country, with the
exception of trade relations with China and
the Netherlands in the port of Nagasaki. This
period represents a peculiar point in Japa-
nese policy-making.
• Opening the door, large emigration and
colonial immigration (1853–1945). Com-
modore Matthew C. Perry of the US Navy
and his frigate of ‘Black Ships’ opened
Japan to foreign intercourse. The Japanese
Government concluded treaties of com-
merce with other countries and regulated
immigration. Japan colonised Taiwan in
1895 and Korea in 1910. Apart from migra-
tion between Imperial Japan and its colo-

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 Kondo: Migration and Law in Japan 157

Table 3 Chronological Development of Immigration Law and Integration Policy in Japan

(1)
No immigration during period of national seclusion (1639–1853)
(2)
Opening the door, large emigration and colonial immigration (1853–1945)
(3)
Strictly controlled migration under the Supreme Commander of Allied Powers (1945–1951).
(4)
Strict immigration even during the period of rapid economic growth (1952–1981)
— The 1951 Immigration Control Order (Act since 1952): The ‘Old Act’; the ‘52 Regime’
— ‘Exclusion, discrimination and assimilation policy’
(5)
Strict immigration but some refugees accepted and foreign citizens’ rights are improved (1982–1989)
— The 1981 Immigration Control and Refugee Recognition Act: The ‘New Act’; the ‘82 Regime’
— ‘Equality and “internationalisation” policy’
(6)
Relatively strict immigration but ethnic repatriates (front door), trainees/technical interns (side door) and irregulars
(back door) come to work as unskilled workers (1990–)
— The 1989 Revised ICRRA: The ‘Revised New Act’; the ‘90 Regime’
— ‘Settlement and “intercultural living-together” policy’

nies, the number of immigrants was small.
However, during this period, approximately
777, 000 Japanese nationals emigrated
mainly to the United States and Latin
America.
• Strictly controlled migration under the
Supreme Commander of Allied Powers
(1945–1951). After WWII, Japan was forced
to relinquish its colonies. Although about 1.5
million Koreans returned to the Korean Pen-
insula during this period, more than 600,000
Koreans and a small number of Taiwanese
remained in Japan.
2.2 The ‘52 Regime’: Strict Immigration
Even during the Period of Rapid
Economic Growth (1952–1981)
The 1951 Immigration Control Order was
renamed the Immigration Control Act in 1952
(the so-called ‘52 Regime’), and this period
can be characterised by its ‘exclusion, dis-
crimination and assimilation policy’ (Kondo
2002, p. 418). Koreans and Taiwanese lost
their Japanese nationality in 1952 and the Gov-
ernment of Japan expected them to either
return to their countries of origin or naturalise
through a procedure, which required them to
take Japanese names. Because of the legacy
of this policy, Japan is currently the only
advanced industrial democracy with a fourth-
generation immigrant problem (Chung 2010,
p. 3). Additionally, Japan was the only indus-
trial democracy that did not heavily rely on
foreign workers during the period of rapid eco-
nomic growth (1955–1973) (Hollifield 1992,
p. 15), a phenomenon explained in terms of
six factors: (i) overcrowded population; (ii)
‘homogenous people’ mentality; (iii) mass
domestic migration; (iv) automation; (v) reli-
ance on the external labour market; and (vi)
long working hours (Kajita 1994; Kuroki
1988; Sellek 2001). Furthermore, the collec-
tive memory of the period of national seclu-
sion merits a mention.
2.3 The ‘82 Regime’: Strict Immigration but
some Refugees Are Accepted, and
Foreign Citizens’ Rights Are Improved
(1982–1990)
After ratifying the International Covenant on
Economics, Social and Cultural Rights
(ICESCR) in 1979 and, especially, the
Refugee Convention in 1981, Japan opened its
door to refugees and improved the rights of
foreign residents. The Immigration Control
and Refugee Recognition Act (hereafter
referred to as ICRRA) was enacted in 1981
and enforced in 1982. The ‘82 Regime’ was
influenced by G7 summit member states
calling for the reception of Indochinese refu-
gees, even if there were domestic factors, such
as a desire to stabilise the legal status of Indo-
Chinese who were already in Japan, and a
concern with improving Japan’s international
identity and solidifying its international posi-
tion (Flowers 2009, pp. 45–6; Arakaki 2008,
pp. 17–18). This period can be characterised
by an ‘equality and internationalisation’

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158 Asia & the Pacific Policy Studies January 2015

Table 4 Number of Registered Foreigners by Citizenship 1975–2013

Year Chinese Korean Filipino Brazilian Peruvian Others Total

1975 48,728 647,156 3,035 1,418 308 51,200 751,842
1980 52,896 664,536 5,547 1,492 348 58,091 782,910
1985 74,924 683,313 12,261 1,955 480 77,679 850,612
1990 150,339 687,940 49,092 56,429 10,279 121,238 1,075,317
1995 222,991 666,376 74,297 176,440 36,269 185,998 1,362,371
2000 335,575 635,269 144,871 254,394 46,171 270,164 1,686,444
2005 519,561 598,687 187,261 302,080 57,728 346,238 2,011,555
2006 560,741 598,219 193,488 312,979 58,721 360,771 2,084,919
2007 606,889 593,489 202,592 316,967 59,696 373,340 2,152,973
2008 655,377 589,239 210,617 312,582 59,723 389,888 2,217,426
2009 680,518 578,495 211,716 267,456 57,464 390,472 2,186,121
2010 687,156 565,989 210,181 230,552 54,636 385,637 2,134,151
2011 674,879 545,401 209,376 210,032 52,843 385,977 2,078,508
2012 652,555 530,046 202,974 190,581 49,248 408,252 2,033,656
2013 647,310 526,578 206,805 185,694 48,995 433,741 2,049,123
2014 648,734 508,561 213,923 177,953 48,263 489,169 2,086,603

Source: Japan Immigration Association.

policy.2 In the late 1980s, Japan’s bubble
economy and labour shortage sparked the first
dispute as to whether Japan should be open or
closed to foreign workers. However, since
1988, the Minister of Labour has continuously
confirmed two basic policies: (i) specialised
and technical labour will be actively admitted;
(ii) admission of so-called ‘simple labour’,
that is, unskilled labour, will be cautiously
examined.
2.4 The ‘90 Regime’: Relatively Strict
Control of Immigration but Three
Loopholes for Unskilled Workers
(1990–)
After the Plaza Accord of 1985, the yen appre-
ciated in value, and real estate and stock prices
became greatly inflated until 1991. This
bubble economy attracted foreign workers to
Japan. In the 1990s and 2000s, Japan experi-
enced a large influx of foreign residents for the
first time in its history, as shown Table 4.
2. For the ratification of the Committee on the Elimina-
tion of Discrimination against Women, Japan’s National-
ity Act was amended in 1984 (and enforced in 1985) from
defining citizenship as determined by patrilineal jus
sanguinis citizenship to also allowing matrilineal jus
sanguinis, and the assimilative naturalisation procedure of
‘Japanese name only’ clause was eliminated from the
administrative guideline on naturalisation.
While the government maintained its official
policy of not admitting unskilled foreign
workers, in practice three loopholes were
established. First, Japan allowed Nikkeijin
(persons of Japanese descent), who come
mainly from Brazil, Peru and other Latin
American countries, to enter the labour market
through the front door. Nikkeijin have unre-
stricted access to work. Second, it opened a
side door for trainees and technical interns
who stem mainly from China and other Asian
countries. The trainee program has come under
severe criticism for exploiting foreign trainees
as low-wage labourers,3 and although currently
most trainees have transferred to a work status
as technical interns, they are required to return
to their original states within 3 years. Third,
there is a back door for irregular migrants
mainly from South Korea, the Philippines and
China, among others. In addition to introduc-
ing sanctions for their employers, the 1989
‘Revised ICRRA’, which was enforced in
3. The US Department of State’s Trafficking in Persons
Report 2012 correctly pointed out that there were cases of
trainees being subject to economic exploitation such as
‘debt bondage, restrictions on movement, unpaid wages
and overtime, fraud, and the contracting of workers out to
different employers’. Under the Revised ICRRA of 2009,
most trainees have shifted to the status of technical intern
under which they are recognised as workers with a
maximum three-year period of residence, but cases of
abuse have not disappeared.

© 2015 The Author. Asia and the Pacific Policy Studies

published by Crawford School of Public Policy at The Australian National University and Wiley Publishing Asia Pty Ltd
 Kondo: Migration and Law in Japan
1990, established several new residence sta-
tuses in accordance with new economic needs.
This period is called the ‘90 Regime’ and it
has continued to the present with several
amendments.
From the viewpoint of integration policy,
this period can be defined by developments in
‘settlement4 and intercultural living-together’.
In 2006, the Ministry of Internal Affairs and
Communication created a Model Plan for the
Promotion of Intercultural Cohesion (Tabunka
Kyousei)5 in Local Communities with three
aims6 and four objectives.7 This was followed
by the issuing of plans on migrant integration
by numerous local governments (Kondo
2011a, pp. 10–13).
In July 2012, the Alien Registration Act was
abolished and a new registration and database
system was established with the objective of
reinforcing integration policy and preventing
irregular residents.8 A new ‘residence card’ is
issued to ‘mid- to long-term residents’ who are
lawfully residents for more than 3 months and
have an obligation to carry these cards on their
persons at all times. On the other hand, a new
‘special permanent resident certificate’ is
issued to special permanent residents who no
longer have a carrying obligation.9
4. Since 1990, newcomer Nikkeijin have been permitted
quasi-permanent residence, and since 1991, all old-comers
from former colonies and their descendants have been
granted special residence permission. In 1998, the deregu-
lation of administrative practice with regard to residence
requirements for general permanent residence permission
was officially published.
5. Literary translated this means ‘multicultural living-
together’. However, this is similar to intercultural policy
rather than multiculturalism. Loosely translated, this
means ‘intercultural cohesion’.
6. (i) Recognising cultural differences; (ii) establishing
equal relationship; and (iii) living together.
7. (i) Communication support; (ii) livelihood support; (iii)
development of a tabunka kyousei community; and (iv)
development of a system to promote the above.
8. The former ‘alien registration card’ was issued to
approximately 20,000 irregular residents, for whom it
functioned as an identity document (ID) card. The new
‘residence card’, however, embedded with an integrated
circuit (IC) chip, will no longer be issued to irregular
residents and asylum seekers.
9. In the 1980s and 1990s, numerous lawsuits were
brought against the fingerprinting obligation of the Alien
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159
Hitherto, an overcrowded population had
been cited by Ministry of Justice officials as
the most important reason for restrictive immi-
gration. However, with Japan’s population
marking a decrease since 2008, there emerged
a second debate as to whether Japan should be
open or closed to foreign workers. Yet, the
global financial crisis of the late 2000s 10 and
the 2011 Great East Japan Earthquake, which
resulted in a decline in the number of regis-
tered foreigners, brought the second debate to
a halt.
3. Residence
3.1 Short Stays and Long Stays
Let us discuss the main issues of residence.
Appended Table I of the ICRRA stipulates the
‘short stay’ residence statuses under which
activities and residential terms are restricted.
There are 14 working visas for specialised and
technical labour. Until 2004, the major status
for foreigners on employment-based residence
statuses was Entertainer. However, through the
enforcement of stricter immigration controls,
the number of Entertainers, many of whom
worked as ‘hostesses’, sharply decreased.
Currently, Engineers and Specialists in
Humanities/International Services comprise
Registration Act, finally resulting in the abolishment of the
obligation in 1999. However, influenced by the terrorist
attacks on the US of 11 September 2001, the revised
ICRRA of 2006 has obligated foreign citizens (except
Special Permanent Residents) to undergo fingerprint scans
upon re-entry. In addition, collected data are made avail-
able not only for terrorist investigations, but also for
general crime investigations. This carries the suspicion of
an invasion of privacy and, accordingly, the police should
be prohibited from using foreign residents’ biometric data
for general crime investigations.
10. From April 2009 to March 2010, a government repa-
triation assistance program provided 300,000 yen per
Nikkeijin worker (and 200,000 yen per dependent) to help
those who despaired of finding new jobs in Japan return
to their native countries. The 20,000 Nikkeijin who
returned home using this system were informed that the
residence status of permanent resident would not be
re-issued to them for a period of three years. However, as
of 2013 permission to re-enter Japan has still not been
granted.
160 Asia & the Pacific Policy Studies
the two major statuses for graduates in the
natural sciences/engineering and human/social
sciences, respectively. Trainee and Technical
Intern officially aim at a transfer of Japanese
technology and expertise to developing coun-
tries, but the reality of most cases is a so-called
rotation system for unskilled cheap labour.
College Students can work for 28 hours per
week. In addition, Dependent (family stay),
Cultural Activities and Designated Activities
are non-working residence statuses, but
holders may engage in work where permission
is obtained.
Appended Table II of the ICRRA lists the
‘long stay’ residence statuses under which
employment activities are unrestricted. The
Long-Term Resident (quasi-permanent) status
for Japanese descendants and their family is
officially explained as providing opportunities
for holders to visit relatives in Japan. However,
the hidden intention of policymakers must
have been to solve labour shortages extant
since the late 1980s. The statuses of Long-
Term Resident, Spouse or Child of Japanese
National, and Spouse or Child of Permanent
Resident require renewal of the period of resi-
dence, albeit a straightforward process. Only
Permanent Residents and Special Permanent
Residents are unrestricted regarding both
activity and period of residence. Special Per-
manent Residents are, moreover, protected
from deportation excepting extreme cases.
Deportation is only enforceable where special
permanent residents have been sentenced to
imprisonment for at least 7 years and the Min-
ister of Justice has found that the vital interests
of Japan have been jeopardised by the act of
crime (Article 9 of the Special Act on Immi-
gration Control).
Permission for permanent residence is
granted at the discretion of the Ministry of
Justice, where the applicant’s residence is
determined to be in the interests of Japan and
he/she fulfils two legal requirements: (i) good
behaviour and conduct; and (ii) sufficient
assets or skills to make an independent living
(Article 22-2 of the ICRRA). With regard to the
administrative interpretation of ‘interests of
Japan’, the practical condition of a continuous
residence term of 10 years has been estab-
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January 2015
lished.11 However, there is no language or inte-
gration requirement. In 2012, 42,029 permis-
sions for permanent residence were granted.
The ICRRA does not mention the systematic
concept of family reunification, but Spouse or
Child of Japanese National and Spouse or
Child of Permanent Resident may be classified
as such. In addition, third-generation Nikkeijin
and the spouses and children of second and
third-generation Nikkeijin are granted the
status of Long-Term Resident. In Appended
Table I of the ICRRA, there is also the status of
Dependent, which includes dependent spouses
and children of foreign citizens holding an
employment, student or cultural activity status.
Only highly skilled foreign professionals can
be sponsors of their parents.
3.2 Irregular Residents, Regularisation and
Humanitarian Status
According to the Ministry of Justice, in 1990,
the estimated number of overstayers12 in Japan
was 106,497. This rapidly increased to
298,646 in 1993, and then gradually decreased
to 59,061 in 2014.13 Fearing a further influx of
11. (i) One year for a child of a Japanese national/
permanent resident; (ii) 3 years for a spouse of Japanese
national/permanent resident; and (iii) 5 years for a Long-
Term Resident, including refugees. Prior to 1988, it was
reported that the general requirement was that of a 20-year
residence.
12. In 2011, the estimated number of overstayers was
78,488, and all irregular residents including irregular
entrants were estimated some 90,000–100,000.
13. The reasons for the decrease were (i) a strict crack-
down on irregular residents with the aim of halving their
numbers within 5 years (2003 Action Plan for the Real-
ization of a Society Resistant to Crime); (ii) amendments
to the 2004 ICRRA, which provided for stricter punish-
ment for irregular residents and introduced the departure
order system (fast-track procedure for irregular residents
to leave Japan if they voluntarily appear at an immigration
control office, carrying a shortened landing denial period);
(iii) the 2007 amendment to the Employment Countermea-
sures Act, which strengthened the reporting system on the
employment status of foreign citizens; (iv) economic
recession and a tightening labour market; (v) the replace-
ment of irregular workers as a source of unskilled labour
by persons of Japanese descent, trainees/technical interns
etc.; (vi) the prevention of terrorism and irregular entry
through the use of electromagnetic fingerprinting; and
(vii) the practice of granting special permission to stay.
© 2015 The Author. Asia and the Pacific Policy Studies
 Kondo: Migration and Law in Japan
irregular migrants with expectations of an am-
nesty, the Government of Japan has been un-
willing to adopt a ‘general amnesty’ program.
‘Special permission to stay’ has been
granted to some irregular residents based on ad
hoc reasons. The Ministry of Justice has dis-
cretion on regularisation. Article 50 of the
ICRRA stipulates that ‘The Minister of Justice
may . . . grant the suspect special permission to
stay in Japan if the suspect falls under any of
the following items: (i) Having obtained per-
mission for permanent residence; (ii) having
had a registered domicile in Japan as a Japa-
nese citizen; (iii) residing in Japan under the
control of another due to trafficking in persons;
(iv) other special grounds’.
It is not clear what ‘other special grounds’
consist of, but family reunion should be con-
sidered as one of them.14 The number of per-
missions has increased since the late 1990s,
and most cases have involved individuals who
were married to citizens or permanent resi-
dents. Since 2000, approximately 8,000
special permissions have been granted annu-
ally, including to long-term irregular resident
families with school children. Irregular resi-
dent children have access to compulsory
education (ages 6–15) and, according to the
revised Guidelines on Special Permission to
Stay (Immigration Bureau, Ministry of Justice
2009), long-term irregular residency (approxi-
mately 10 years) for families with school chil-
dren was added as an example of ‘positive
elements to be given particular consider-
ation’.15 ‘Positive elements’ for other cases
include ‘a long period of domicile in Japan’,
which although unclear is estimated to com-
prise a minimum of 20 years.16
14. There were about 2,000 special residence permissions
granted annually from 1955 to 1965, and most cases were
Koreans’ family reunion. Once, the number decreased
after the 1965 Treaty on Basic Relations between Japan
and the Republic of Korea.
15. These special positive elements are also applicable to
the child/foster parent/spouse of a Japanese national or
special permanent resident.
16. These positive elements are also applicable to persons
who have ‘turned [themselves] over to a regional immi-
gration bureau’ and to those who are children/foster
parents/spouses of Permanent Residents, Long-Term Resi-
dents and children/spouses of Japanese nationals.
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161
Under the 2009 Guidelines, ‘serious illness’
is taken into account as a ‘positive elements to
be given particular consideration’,17 and
‘humanitarian grounds or other special cir-
cumstances’ comprise ‘positive elements’ for
special permission to stay. Therefore, the Min-
ister of Justice may grant a special humanitar-
ian status to rejected asylum seekers who do
not qualify as refugees under the terms of the
Geneva Convention but who face a real risk of
being subjected to the death penalty, torture, or
serious threats to their life. In 2013 and in the
period 1991–2013, 151 and 2,257 rejected
asylum seekers, respectively, were granted
special permission to stay with a humanitarian
status in Japan. However, it should be noted
that these numbers include some rejected
asylum seekers such as spouses of Japanese
national/permanent resident and they are
granted special permission to stay based on
various reasons.
3.3 Asylum Seekers and Refugees
There is no special provision for the right of
asylum (such as Article 16a in Germany’s
Basic Law) in Japan’s constitutional and
immigration laws. The criteria for awarding
asylum under the ICRRA are same as the
Geneva Conventions. In 2013 and in the period
1982–2012, there were 3,260 and 17,559
applicants, of whom six and 622, respectively,
were recognised as refugees. In addition, albeit
separate from the refugee recognition proce-
dure, from 1978 to 2005, 11,319 Indochinese
refugees were permitted to resettle in Japan. In
2012, there were 3,316 decisions and 21
recognised refugees, so the rate of refugee rec-
ognition (0.6 per cent) was extraordinarily low
compared to those in other industrial countries
(see UNHCR 2012, pp. 94–6).
Furthermore, in 2010, the Government of
Japan initiated a refugee pilot project, with an
annual quota of 30 refugees from Myanmar.
However, the actual number received was 27 in
17. The Guidelines stipulate that ‘When the applicant
requires treatment in Japan for a serious illness, etc., or
when the applicant’s continued presence in Japan is
deemed necessary in order to nurse a family member who
requires such treatment’.
© 2015 The Author. Asia and the Pacific Policy Studies
162 Asia & the Pacific Policy Studies
2010, 18 in 2011, 0 in 2012, 18 in 2013 and 23
in 2014. Many applicants declined to come to
Japan because they gained a negative impres-
sion from the precedents and were anxious
about their future.18 Recognised refugees are
normally granted a Long-Term Resident,
status which enables holders to work and
receive welfare benefits. In addition, refugees
can access free Japanese language instruction.
In contrast, asylum seekers have a possibil-
ity to be provided with permission for a provi-
sional stay under Article 61-2-4 of the revised
ICRRA of 2004; otherwise, they need to be
detained. The Refugee Assistance Headquar-
ters provides services for asylum seekers,
taking the form of a free counselling, payment
of medical expenses and the provision of
limited accommodation. Asylum seekers
whose statuses are irregular cannot work. Even
asylum seekers whose statuses are regular
cannot work for 6 months after their applica-
tion for refugee status, and during this time,
asylum seekers may be given assistance with
living and accommodation expenses (1,500
yen per day and 40,000 yen per month, respec-
tively). However, in 2012, it took approxi-
mately 3 months to receive the expenses
because of the high number of applications.
4. Citizenship
4.1 Acquisition
In accordance with the bilinial jus sanguinis,
Japanese citizenship by birth is usually
acquired from the citizenship of either Japa-
nese parent (Article 2-1). However, Article 3
of the Nationality Act formerly denied citizen-
ship to children born out of wedlock and
acknowledged by the Japanese father after
birth based on the requirement of (i) acknowl-
edgment before birth or (ii) marriage of the
parents after birth. In 2008, the Supreme Court
declared this Article to be unconstitutional
under the equal protection clause (Okuda &
Nasu 2008), and the amended Article admits
18. They are not familiar with Japanese lifestyle, lan-
guage and long working hours in agriculture. Extended
family members cannot enter Japan.
published by Crawford School of Public Policy at The Australian National University and Wiley Publishing Asia Pty Ltd
January 2015
citizenship after birth through notification to
the Minister of Justice.
The Minister of Justice may permit
naturalisation under certain conditions.19 In
practice, a reading/speaking knowledge of
Japanese at the level of a third year elementary
school pupil (ages eight to nine) is necessary,
but there is no civic knowledge or assimilation
requirement. The low naturalisation rate (see
Table 1) stems from the principle of avoidance
of dual citizenship.
4.2 Loss and Recovery
Japanese citizens having foreign citizenship
may renounce their Japanese citizenship by
notification to the Minister of Justice (Article
13). Note the unique ‘system of reservation’ for
the sake of the principle of avoidance of dual
citizenship (see Murazumi 2000, pp. 420–3).
Japanese citizens who acquired the citizenship
of a foreign country through birth, and who
were born abroad, shall retroactively lose Japa-
nese citizenship as from the time of birth unless
they indicate an intention to reserve their Japa-
nese citizenship (Article 12). Persons under 20
years of age who have lost Japanese citizenship
under this system may reacquire Japanese citi-
zenship by making notification to the Minister
of Justice if they have a domicile in Japan.
There is another unique ‘declaration of
choice’ based on the principle of avoidance of
dual citizenship even in the case of a child
of international marriage. Generally, Japanese
citizens having foreign citizenship shall select
one of the nationalities prior to their becoming
22 years old (Article 14). However, this selec-
tion is not a strict obligation: ‘Japanese citi-
zens who make a declaration of choice shall
endeavour to renounce their foreign citizen-
ship’ (Article 16). Indeed, while the Minister
19. (i) Having had a domicile in Japan for at least 5
consecutive years; (ii) being at least 20 years of age; (iii)
being a person of good conduct; (iv) being able to make a
living through one’s assets or abilities, or those of a spouse
or relative; (v) not having the citizenship of another
country, or renouncing one’s citizenship because of the
acquisition of Japanese citizenship; and (vi) not having
planned or advocated the destruction of the Constitution or
the Government of Japan (Article 5 of the Nationality Act).
© 2015 The Author. Asia and the Pacific Policy Studies
 Kondo: Migration and Law in Japan
of Justice may provide written notice for this
selection (Article 15), there is no practice of
actually doing so.20
4.3 Statelessness
According to the alien registration data of
2011, there were 1,100 stateless persons. In
addition, there will be a number of unregis-
tered stateless persons who are irregular resi-
dents and some de facto stateless persons.21
Exceptionally, if born in Japan and both of the
parents are unknown or are without citizen-
ship, a child can acquire Japanese citizenship
in application of jus soli because of the prin-
ciple of avoidance of statelessness (Article
2–3). In the Andrea case, the Supreme Court
granted Japanese citizenship to a child born in
Japan whose father was unknown and mother
missing, thereby expanding the interpretation
of Article 2 (3) of the Nationality Act. The
Article which stipulates ‘both of the parents
are unknown’ was interpreted as, ‘both of the
parents are not determined’ for the sake of
avoiding statelessness.22
5. Four Factors
Let me proceed to explain why Japan opts for
a restrictive policy in a certain case, while in
others it adopts greater flexibility. In this
analysis, we can take account of four factors:
(i) the impact of history; (ii) the role played by
international human rights; (iii) the need for
fresh policies in the face of new forms of
cross-border mobility; and (iv) thorny ques-
tions regarding the direction in which Japan’s
migration policy seems to be heading.
20. Those who oppose multiple citizenship in Japan raise
loyalty conflicts, clashes in rights of diplomatic protection,
and problems related to personal statuses such as bigamy,
as arguments. However, one director general of the Civil
Affairs Bureau explained that ‘there is no precedence of
actual problems having been caused by multiple citizen-
ship’. Seiichi Fusamura at the House of Representatives
Committee on Judicial Affairs (2 June 2004).
21. Those who are denied the diplomatic protection or
assistance of their country of citizenship.
22. Supreme Court, 2nd petty bench, 27 January 1995, 49
Minshu 56.
© 2015 The Author. Asia and the Pacific Policy Studies
published by Crawford School of Public Policy at The Australian National University and Wiley Publishing Asia Pty Ltd
163
5.1 The Impact of History
Japan was an emigration country during the
early twentieth century, before turning to
become an immigration country. In the last
two decades, ethnic repatriation by Nikkeijin
(foreign nationals of Japanese descent) has
comprised one of the major immigration flows
in Japan, and ancestry-based migrants are cur-
rently a relatively significant group in Japan.
The residence status of Special Permanent
Resident, which is reserved for former colonial
citizens, resulted from historical circum-
stances. History, furthermore, was influential
in creating the unique discrepancy that exists
between permanent residence permission and
naturalisation. The residence period require-
ment for acquiring permanent residence had
been 20 years, reduced to 10 years since the
1990s, while that for naturalisation, in stark
contrast, has been 5 years since the 1950s. The
1980 ‘White Paper on Immigration Control’
pointed out the Japanese social traits of an
‘overcrowded population’ and a ‘homogenous
people’ mentality, as reasons for generally
‘rejecting permanent residence’ (Immigration
Bureau, Ministry of Justice 1981, pp. 9–12). In
my analysis, most migrants in 1950s–1970s
were Koreans, and the Government of Japan
hoped that they would choose either to return
to their country of origin or naturalise in Japan.
Accordingly, the government may have been
reluctant to grant permanent residence.
5.2 The Role of International Human Rights
The ratification of the ICESCR and the
Refugee Convention ushered in the ‘82
Regime’. As both treaties aimed for the equal-
ity of social rights between citizens and
foreign citizens, citizenship clauses were
eliminated from most social security laws,
even though there still remain some exceptions
(see Iwasawa 1998, pp. 167–76; Webster 2011,
pp. 587–91).
The protective role of ‘best interests of the
child’ and the ‘family reunion’, as defined in
Articles 3 and 9 of the Convention on the
Rights of the Child and Article 23 of the
ICCPR, has increased in significance in recent
164 Asia & the Pacific Policy Studies
years. Lower courts have on several occasions
decided to reject deportation and grant special
permission to stay to irregular residents.23
5.3 The Need for Fresh Policies
Globalisation and the problem of an ageing
population are generating a debate on the
adoption of a more liberal immigration policy,
especially for highly skilled workers, students
and nurses/care workers. In May 2012, a
points-based system that provides highly
skilled foreign professionals with preferential
immigration treatment was launched.24 This
point system, unlike Canada’s, does not
channel permanent resident immigration into
Japan. Instead, highly skilled foreign profes-
sionals receive preferential treatments, includ-
ing access to permanent resident status after 5
years of residence, few restrictions on the type
of work engaged in, and the possibility bring-
ing over parents and a domestic servant under
specified requirements. Number of new
entrants as highly skilled professionals was
only 17 from 7 May 2012 to 6April 2013,
although the government expected 2,000. In
addition, during this period, number of permis-
sions for changing status to highly skilled pro-
fessionals was 417. After certain relaxations of
the permission requirements in December
2013, the number of permissions for highly
skilled professionals was increasing 53 in
January, 97 in February, 135 in March and 146
in April 2014. However, Japan has still not
been able to attract enough highly skilled
migrants because of several social factors (see
Oishi 2013).
23. Nagoya District Court, 9 December 2010, 1367
Hanreitimes 124; Tokyo District Court, 22 January 2010,
1353 Hanreitimes 96; Tokyo District Court, 28 August
2007, 1984 Hanreijiho 18; Tokyo High Court, 21 February
2007, see Supreme Court website; Tokyo District Court, 28
March 2006, 1952 Hanreijiho 79; Fukuoka High Court, 7
March 2005, 1234 Hanreitimes 77; Tokyo District Court,
17 October 2003, see Supreme Court website; Tokyo Dis-
trict Court, 19 September 2003,1836 Hanreijiho 46; Tokyo
District Court, 12 November 1999, 1727 Hanreijiho 94.
24. The activities of highly skilled foreign nationals are
classified into three categories: (i) academic research
activities; (ii) advanced specialised/technical activities;
and (iii) business management activities.
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January 2015
Japan is also trying to attract more foreign
students. The ‘Plan to Accept 100,000 Foreign
Students’, first set out in 1983, was upgraded in
2008 to an annual target of 300,000 foreign
students by 2020. In 2013, there were 135,519
foreign students enrolled in Japanese universi-
ties.25 Foreign students are expected to play a
part Japan’s economic activities and, upon se-
curing employment after graduation, they can
change their residence status to become ‘spe-
cialists’ in humanities, international services or
engineering. If they cannot find a job initially,
foreign students may apply for a 180-day ‘Des-
ignated Activity’ status to prolong their status.
Since 2009, students who are unable to find
employment within 180 days of graduation can
renew this ‘DesignatedActivity’status and con-
tinue job hunting for up to 1 year.
Economic Partnership Agreement programs
have brought Japan 1,869 nurses and care
workers from Indonesia (2008–2013) and the
Philippines (2009–2013). However, where
these candidates wish to extend their stay
beyond the designated terms of 3 or 4 years,
respectively, they are required pass the relevant
national examinations, which are offered only
in Japanese. Because of the difficulty inherent
in mastering Japanese, a mere of 96 of 1451
nurse candidates passed the examination in
2009–2013, and only 164 of 417 care worker
candidates succeeded in 2012 and 2013.
Accordingly, a degree of accommodation has
recently become evident, including the use of
furigana superscripts in the question papers
and an extension to the examination time.
Joining the Trans-Pacific Partnership might
have some positive effects on the adoption of a
more liberal immigration policy in Japan.
5.4 The Effect of Thorny Questions
Thorny questions of Japan’s migration and law
comprise the still extant cold war in East Asia
and ethnic discrimination reinforced by this
background and Japan’s colonial legacy. The
25. In addition, 32,626 pre-college students attended
Japanese language schools. In 2010, the Pre-College
Student status was abolished and integrated into the
Student status in order to ensure that students complete
their studies in Japan.
© 2015 The Author. Asia and the Pacific Policy Studies
 Kondo: Migration and Law in Japan
1951 Immigration Control Order was drafted
by Nick D. Collaer, an American adviser at
General Headquarters (GHQ), who had been
engaged in the US Immigration and Natural-
ization Service for approximately 30 years
(Morris-Suzuki 2006, p. 137). This Order was
influenced by the ‘cold war’ and granted broad
administrative discretion to control foreign
citizens from the viewpoint of anti-
communistic public order protection. Foreign
citizens, at that time primarily decolonised
Koreans, were fingerprinted under the 1952
Alien Registration Act, a procedure that was
influenced by the US Alien Registration Act
(the Smith Act) of 1940–1944.
In principle, Koreans and Taiwanese
(Chinese) who remained in Japan after WWII
should have been given the option of retaining
their Japanese citizenship.26 However, in 1952,
they lost their Japanese citizenship and the
rights inherent therein regardless of their own
volition. Since 1965, with the normalisation of
relations between Japan and South Korea, only
old-comers registered as South Koreans were
granted permanent resident status; old-comers
registered as Koreans (that is, those pro-North
Korea and those not willing to declare an affili-
ation) were denied this status. Since 1992,
Special Permanent Resident status has been
granted to all old-comers; however, as of 2012,
those registered as Korean still need to apply
for re-entry, even where they intend to return to
Japan within 2 years.
One of the most critical issues in recent
years is that only pupils who attend pro-North
Korea high schools are denied the support of a
tuition waiver program by the Government of
Japan. Moreover, financial assistance tends to
be sporadically halted by local governments in
the wake of North Korean nuclear tests and
other provocative acts. A number of pupils
have sued in courts in Nagoya, Osaka, Hiro-
shima, Fukuoka and Tokyo.
After the general election of 2009, which
resulted in the Democratic Party of Japan
26. This option is in accordance with present international
human rights law such as the 2000 United Nations’ Dec-
laration of Articles on Nationality of natural persons in
relation to the succession of States.
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165
becoming the ruling party, the submission of a
bill for permanent residents’ local suffrage
became conceivable. However, one of the gov-
erning coalition parties had a negative opinion
of the foreign vote and, as the government lost
its majority in the Upper Chamber in 2010,
prospects for the submission of the bill have
dimmed. The Liberal Democratic Party (LDP),
the present ruling party, is firmly against the
foreign vote. Politicians and citizens, who
oppose the right of foreign citizens to vote, are
usually wary of the political influence of North
Korea and China. If one focuses on the
dominium issue of islands, South Korea needs
to be added. In 2013, demonstrations took
place in Tokyo and Osaka, in which hate
speech such as ‘Kill’, ‘Beat out the Koreans’
was chanted. The legacy of colonialism and
the cold war spurred this ethnic discrimination
and continues to pose difficulties for migrant
integration policy.
The myth of monoethnic Japan is funda-
mentally a post-WWII construct (Lee 2001,
p. 141). Nationalistic politicians and officials
have stressed the ethnic homogeneity of Japan.
Ethnic preferences have sometimes been
inherent in their policies: the denationalisation
of Koreans and Taiwanese; the special treat-
ment extended to Nikkeijin; and the jus
sanguinis principle with avoidance of dual citi-
zenship. However, ethnic discrimination
should be eliminated.
6. Conclusion
Finally, I would like to offer an overview of the
characteristics of Japan’s migration and law,
comparing them with other developed coun-
tries, and noting problems to be solved.
The Migrant Integration Policy Index III
comprises the result of comparative research
on the integration policies of 33 countries
(Huddleston et al. 2011). I participated in this
research to evaluate Japan’s current situation
in relation to this index and to understand
Japan’s problems regarding migrant integra-
tion. Serious problems encountered by
Japan are anti-discrimination and educa-
tion, followed by political participation and
citizenship (Kondo, Yamawaki 2014).
© 2015 The Author. Asia and the Pacific Policy Studies
166 Asia & the Pacific Policy Studies
On labour market access, Japan fails to
fairly recognise foreign residents’ skills and
certification from their countries of origin. In
terms of local public office, there exists the
issue of constraints on foreign citizens’
appointment to managerial positions (Kondo
2001, pp. 21–2). However, based on a 2005
Supreme Court ruling,27 the ‘assumption doc-
trine’ has emerged, in which foreign citizens
are assumed not to take up public official posi-
tions, but the issue is left to the discretion of
local governments.
Regarding family reunion, the ICRRA needs
to stipulate a systematic guideline and add
residence statuses for common law marriage
partners, same-sex partners and parents. The
right to autonomous residence permit for
partners, adult children, widowed persons,
divorced persons and victims of domestic vio-
lence should be protected.
Language education for adult migrants is
mostly conducted by volunteers. Intensive
introductory programs for newcomers are not
sufficiently institutionalised. There is no pro-
vision of the option for migrant pupils to
learn their mother tongues. Cross-cultural edu-
cation should be incorporated into the school
curriculum.
Some local municipalities permit foreign
residents to vote in local referendums and sit
on consultative bodies (Shipper 2008, pp. 136–
8). Local voting rights for permanent residents
should be introduced (Kondo 2011b).
The residence requirement for permanent
residence permission should be reduced to 5
years or shorter, rendering it comparable with
the period required for naturalisation. Foreign
citizens’ exemptions from applications of the
Administrative Procedure Act and the Admin-
istrative Appeal Act should be abolished,
grounds for rejecting permissions should be ex-
plained and foreign citizens should be allowed
to appeal against administrative instances.
The Japanese Government should examine
the introduction of the jus soli system (or even
the jus soli system for permanent residents
only) or the jus domicili system, and recognise
27. Supreme Court, grand bench, 26 January 2005, 59
Minshu 128.
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January 2015
multiple citizenship. Grounds for rejecting
naturalisation should be explained. Even if
rejected persons can appeal to the courts, they
should be allowed to appeal against adminis-
trative instances.
Japan must be the only developed
industrialised democracy not to have an anti-
discrimination law. Article 14 of Constitution
prohibits racial discrimination, but it does not
directly affect private space. Instead, Article
90 of Civil Code invalidates discriminatory
conduct in private life, and Article 709 of Civil
Code provides for compensation for damage
(see Webster 2007a, 2007b, 2008). The previ-
ous government prepared a bill to establish a
human rights relief institution, such as a
human rights committee, but it did not pass
because the lower Chamber was dissolved in
2012. The enactment of an anti-discrimination
law is an urgent task, but the ruling LDP is
reluctant to take up the challenge because of
the effect of the thorny questions raised above.
Prime Minister Shinzo Abe previously in 2005
criticised the bill on the Protection of Human
Rights because of the absence of a citizenship
requirement to be a member of Human Rights
Committee. In objecting to his government’s
bill at the time, he stated that, ‘If a North
Korean who belongs to the General Associa-
tion of Korean Residents became a member of
the Committee, there is a risk that he would be
the first human rights abuser’.28 However, just
after the recommendation to prevent racist
attack in Japan from the UN Human Rights
Committee, the LDP formed project team to
tackle hate speech problems in 2014. Post-
colonial prejudice still remains in Japanese
society, but international human rights law is
important influence on migration law.
November 2014.
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