-JAPAN’S RECENT CHANGES TO LAWS ON VISA OVERSTAYERS

by Arudou Debito
Sapporo
June 3, 2004
http://www.debito.org
debito@debito.org

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JAPAN’S RECENT CHANGES TO LAWS ON VISA OVERSTAYERS
OVERDO ENFORCEMENT AND PUNISHMENTS
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Despite UN and Prime Ministerial studies clamoring for more immigration and foreign tourism, Japan is not doing itself any favors with its recent legislation on overstays. Last Thursday, May 27, 2004, Japan’s more-powerful Lower House passed an amendment to the “Immigration Control and Refugee Recognition Law”, which takes effect six months after its imminent promulgation.

http://www.japantimes.co.jp/cgi-bin/getarticle.pl5?nn20040528a1.htm

This amendment enacts stricter punishments for those overstaying their visa. Banishment time from Japan has been doubled from five to ten years. Maximum fine increased tenfold from 300,000 to 3 million yen. Those who go down to Immigration to come clean before being caught are merely deported faster. This in addition to the already-enforced incarceration with other criminals for at least several days (sometimes at a charge of 60,000 yen per day), without access to family, a consulate, or even a lawyer.

http://www.japantimes.co.jp/cgi-bin/getarticle.pl5?fl20040518zg.htm

This measure is a consequence of claims by the National Police Agency that hordes of illegal aliens (estimated somehow at 250,000 people) are contributing to Japan’s rising crime rate. Koizumi’s new cabinet last year annnounced a plan to halve the number of illegals within five years.

Government organs have certainly geared up for the task. Since 2000, budgets have appeared for the NPA’s “Policymaking Committee Against Internationalization” (Kokusaika Taisaku Iinkai), “genetic racial profiling” research of crime-scene evidence (since Japanese, unlike foreigners, are allegedly racially pure), nationwide public notices warning Japanese (who, of course, never commit crime themselves) about “bad foreigner crime”, and Internet “snitch sites”, where anyone can rat on any foreigner anonymously for any reason whatsoever.

http://www.debito.org/TheCommunity/communityissues.html#police

To be sure, resident foreigners have an obligation to keep their visas renewed and legal. Ignorance of or irresponsiblity towards the law is no excuse. And yes, plenty of illegals out there do in fact come to Japan specifically to commit crime, and deserve incarceration or permanent expulsion.

But do the new punishments fit the crime? After all, equating overstayers with hardened criminal activity (such as burglary or murder) overstates the seriousness of the crime. “Overstaying” as such is a bureaucratic procedure, not necessarily an act demonstrating willful intent of depriving others of life, liberty, or property.

And are all overstayers automatically people with criminal intent? Certainly Japan’s Nenkin pension plan scandals have shown that even politicians can forget to follow bureaucratic procedure. But do they face loss of livelihood or even incarceration? Even deadbeat Koizumi remains our PM. The point is that more administrative effort is necessary to sift through the truly bad apples out there, and to make sure that overzealous officials do not overstep their mandate.

Consider two cases:

A friend of mine has lived in Japan as long as I have, working for more than a decade in a Japanese university. Due to personal tragedy, he discovered his visa had expired three weeks too late. He went to Immigration to own up, but was sent to the sixth floor (a near miss–the seventh floor at the Tokyo Regional Immigration Bureau at Konan, Minato-ku, is the “Floor of No Return”) in order to be given special handling. The good old days of getting off after writing a letter of apology are bygone.

Here’s the problem: Afterwards, his passport was never stamped with anything like “Visa Renewal Impending”. Officials refused to issue any proof whatsoever that he was being processed. To anyone outside the office, he looks just as illegal as when he walked in.

Contrast that with how Japan processes other forms of identification. Driver licences, for example, get renewed after the millions of bearers are mailed a reminder from the local government (in fact, without it you can’t renew). In the countryside, because you often have to wait a week or two for your new licence to arrive from headquarters, you are even issued a temporary licence to show you are being processed. Keeps you out of trouble if you get stopped by the cops.

But not if you’re foreign. If my friend gets snagged by the cops for a random Gaijin Card Check, he has nothing whatsoever to demonstrate that he has done his bit to remain a legal resident. Then out he may go–last week’s amendment provides for faster processing and deportation. With no legal advice or contact with the outside world, what’s to stop a summary deportation without due process? (as in the Ken Massey Case, )

When questioned about this loophole, Immigration essentially told my friend, “Remember your case number. We have no budget to serve an visa expiry notice or proof of processing to all the thousands of foreigners out there.” Yet money has been found to post nationwide public warnings about foreign crime, increase staff at Immigration, and enforce further surveillance and enforcement mechanisms? I told my friend to bring a lawyer with him next time he visits Immigration, because once they get him inside their doors, essentially they can process him any way they like.

Another case: Another friend, who has worked in Japan’s financial community for several years, recently went to have his Gaijin Card renewed early at the local ward office. Previously, the procedure took less than an hour and was accomplished in one trip. This time, however, officials were adamant about seeing his credentials, proof of workplace, financial standing, etc. “We will be checking all the phone numbers you give us,” officials stated. He would even have to come back all over again on the day his Gaijin Card expired.

“Perhaps it was because I wasn’t wearing a suit,” my friend said charitably. The surprise is that my friend’s visa hadn’t even expired yet–it’s good for a couple more years! Seems having any kind of visa, valid or void, is in itself becoming grounds for suspicion in Japan.

So now things are getting extreme. As the second link above indicates, people who are even one day overdue are getting incarcerated, fined, and banished for years. One case mentioned that two people (two weeks overdue on five-year visas) were even on their way out of the country anyway when they were nicked and chucked into the Gaijin Tank at Narita Airport!

Surely there are bigger fish out there to catch.

How about going after some of the culprits of visa overstays? The yakuza bring in thousands of foreign women, which, passports confiscated and visas lapsed, can wind up as sexual slaves. According to the Far East Economic Review (August 3, 2000):

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[E]xperts believe that of the 120,000 Asian, Eastern European and Latin American women overstaying visas in Japan today, as many as 75,000 are working under duress in a sex industry that activists say accounts for 1% of Japan’s GNP–as big as its annual defence budget…. Activists… estimate that between 500,000 and 1 million women have been enslaved since the yakuza moved into the trade in the early 1980s. That’s at least four times the number that historians believe the Japanese military drafted as “comfort women” in the 1930s and 40s.
http://www2.gol.com/users/coynerhm/human_trafficking.htm
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Or how about the industries that exploit cheap foreign workers (especially the illegals–since the latter can’t go to the authorities if the former cheats them out of their already low wages)? As Takeyuki Tsuda, Associate Director of the Center for Comparative Immigration Studies, University of California, San Diego, writes in his paper entitled, “Reluctant Hosts: The Future of Japan as a Country of Immigration”:

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[The revised Immigration Control and Refugee Recognition Act (implemented in 1990)] maintained Japan’s long-standing ban on unskilled foreign workers and imposed tough penalties (fines of up to two million yen–about $20,000–or prison terms of up to three years) on those employers and labor brokers who knowing recruit and hire illegal aliens…. [H]owever, the Japanese immigration law has numerous loopholes that enable the importation of unskilled immigrant labor through the issuance of visas intended for other purposes. Through these “side-door” mechanisms, large numbers of foreigners are legally admitted under various official guises, but actually function as unskilled migrant workers. With the frontdoor tightly closed to all but skilled and professional workers, virtually all of the estimated 800,000 unskilled immigrant workers in Japan have entered either through the sidedoor or the “backdoor” (illegal immigration).

Sidedoors: “Trainees,” “Students,” “Entertainers,” and Nikkeijin “Visitors” to Japan

The Japanese trainee system is one important means through which migrant labor is imported through the sidedoor without undermining the government”s official prohibition of unskilled immigrants. Shortly after the revised immigration law was implemented, the Ministry of Justice modified by decree the traditional trainee program (formerly restricted to official agencies and large multi-national corporations) to enable small and medium sized companies to participate in it as well. It is quite apparent that the Ministry took such action in order to implement a sidedoor mechanism that would supply labor-deficient companies with necessary immigrant labor since it has been precisely these smaller-sized companies that have suffered the most from the labor shortage and had been clamoring for the legal acceptance of unskilled foreign workers. Some had even proposed a number of trainee and guest worker programs to the government….

The enforcement of employer sanctions against businesses that employ illegal foreign workers has been even less effective than the apprehension of illegals, with only a small number of employers being penalized for violations of the immigration law (351 in 1992, 692 in 1993). This is obviously only a minuscule portion of the large number of employers and brokers who hire illegal workers. According to one Ministry of Justice bureaucrat responsible for immigration policy, when the revised immigration law was passed by the Japanese Diet, there was an implicit agreement with the Ministry of Justice that it would not aggressively enforce the new employer sanctions law in apparent deference to the large numbers of Japanese companies which need illegal immigrant workers to survive.
http://migration.ucdavis.edu/rs/more.php?id=39_0_3_0
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So let’s get this straight. People thrive by bringing foreigners here, often give them lousy conditions and few civil-rights protections, and then blame them for rising crime numbers? A full third of which are not “hard crimes”, but rather visa violations–which can be instigated by the Japanese themselves?

Then in comes the political dimension. I have mentioned in past essays about the financial incentives for creating a “culture of fear” (i.e. fear of foreigners creates more budgetary outlay for the police). But did you know that:

1) An International Herald Tribune/Asahi Shinbun articles dated Dec 14-15, 2002, cited a study by Nara University associate professor of sociology Ryogo Mabuchi, which in 1998 found that crimes by foreigners were “4.87 times more likely to be covered than crimes by Japanese.” http://www.debito.org/ihtasahi121502text.html

2) According to friend Chris Flynn (info@chrisflynn.com), in his April 21, 2004, letter to the Japan Times:
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[T]he number of people who are arrested, turned over to the public prosecutor (and thus included in “cleared offenses committed by visiting foreigners”) but turn out to have nothing to do with the said crime and are released.

In Fukuoka in 2002, of the 171 crimes in which foreigners were involved (139 arrests), only 78 were indicted and 28 of those had their indictment suspended, which leads me to believe that about 35 (25 percent) of those in the “criminal” statistics were innocent and did not face trial.
http://www.japantimes.co.jp/cgi-bin/getarticle.pl5?rc20040421a2.htm
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Which means that even innocents apprehended and then released are nevertheless statistically counted as criminals!

All this leads to inflated crime statistics, distorted public perceptions and tax outlay, and great potential for egregious abuse of the law to target, harass, and penalize people for what may essentially amount to the crime of being foreign in Japan.

Or foreign-looking. I anticipate the day I get stopped on the street and apprehended for not carrying ID (something not required of citizens, but then as you know I don’t look like a citizen; for foreigners it is a penal offense.) When I asked authorities how I should close this racial loophole, they said, “Just tell the cops you are a Japanese. That should do.” Reassuring indeed.

Any hope for some improvements? Not if the voices of foreigners continue to be ignored. Even the Foreigners Advisory Council of Tokyo (Tokyo-to Gaikokujin Tomin Kaigi), established in November 1997 by former Tokyo Gov. Aoshima for more intercultural policy input, has not even met under Gov. Ishihara since March 2001!

http://www.kisc.meiji.ac.jp/~yamawaki/etc/tokyo.htm
http://www.annie.ne.jp/~ishn/gaikokujin_tomin_kaigi.html
http://www.tabunka.jp/tokyo/news/040612.htm

Conclusion: I believe we are seeing Japan slowly retreat back into its clamshell, as the culture of fear allows the conservatives more say in knee-jerk policy and less caution over possible policy overreach. The perpetually half-baked approach of the Japanese government towards foreigners, generally shameful, is getting worse. Smoother processing of illegals is understandable, but treating all overstayers regardless of extentuating circumstances like criminals, or treating forthright overstayers or even legal residents like potential criminals, is going too far. I believe the end result will be Japan’s loss of skilled, educated, and visa-sanctioned foreign labor (something which even Ishihara says he supports), who will be unwilling to come here and brave the hassles of just staying legal.

Arudou Debito