/ |

A closer look at the Supreme Court’s welfare benefits ruling

Officially, things will stay as they are, but some are not so sure

by Tomohiro Osaki

Staff Writer

Opinions are divided over how the Supreme Court ruling last week declaring permanent foreign residents of Japan ineligible for welfare payments will affect the foreign communities in Japan.

In Japan, welfare benefits comprise public assistance for financially needy people, including monthly stipends for living expenses and housing, as well as free medical and nursery services.

Lawyers and foreign rights advocates see the top court’s ruling as a sign that municipalities will grow more hostile to foreigners, while central and local government officials stress the ruling will by no means change the way they scrutinize foreign applicants.

Let’s take a look at the facts and some of potential repercussions from the verdict.

What was the ruling about?

An 82-year-old ethnic Chinese woman in Oita Prefecture who was born and raised in Japan sued the city of Oita in 2009 as she was denied welfare benefits on the grounds that she had some savings. She filed another application later that was accepted and has been claiming welfare benefits since 2011.

Her claims aside, the trial was pivotal in that it forced the courts to finally clarify whether foreigners are entitled to welfare benefits — something the judiciary has never had to consider.

Last Friday, the Supreme Court clearly ruled for the first time that they are not because foreigners are not considered Japanese citizens, overturning the Fukuoka High Court’s 2011 decision.

How did foreigners first start to receive benefits in Japan?

The 1950 Public Assistance Law stipulates that the state should take measures to protect every financially struggling “citizen” of Japan from poverty and ensure a minimal standard living. Four years later, the welfare ministry issued a nationwide notice to municipalities explaining that the law does not cover foreign residents due to its allusion to nationality.

But poverty-stricken foreigners, it said, should nonetheless be given any assistance deemed necessary by the municipalities. Since then, municipalities have customarily interpreted this to mean that they can decide whether to dole out the benefits at their own discretion.

As a result, foreign residents here have received welfare benefits for years — at the mercy of local governments.

In 1990, the ministry narrowed the scope of foreigners subject to benefits to those with permanent residency or long-term visas.

What about other social security programs?

Japan used to exclude foreigners from almost all social security programs, including child-rearing allowances and the national pension system. Laws for all of these programs stipulated its recipients be “Japanese nationals,” until Japan joined a series of U.N.-designated international treaties, such as the International Covenants on Human Rights in 1979, and the Convention relating to the Status of Refugees in 1982.

By joining these accords, Japan became treaty-bound to treat foreigners on an equal footing with its own people and pressured into ditching the nationality clauses previously included in these programs.

What happened to the benefits?

Unlike many other programs, the original 1950 law for welfare benefits has received no tweaks and continues to discriminate against foreigners by stating that legitimate recipients must be Japanese citizens.

Upon signing up for the 1982 refugee treaty, the government at the time insisted there was no need to rid the law of the nationality clause, arguing municipalities were already treating foreign applicants in the same way as Japanese in accordance with its 1954 notice.

So how will the ruling affect foreign communities here?

When contacted by The Japan Times, the Health, Labor and Welfare Ministry said no major policy review is in the works on how to handle claims by foreigners seeking welfare benefits.

“We understand the ruling merely endorsed our policy of all these years,” said ministry official Hiroki Morishita. “Foreign residents have never been eligible for the benefits. This will continue to be the case and nothing will change.”

Likewise, local governments in Shinjuku Ward, Tokyo, Kawasaki and Minokamo in Gifu — all of which have large foreign communities than elsewhere in Japan — said they are not considering subjecting foreign applicants to stricter scrutiny.

But Hisao Seto, lead defense lawyer for the 82-year-old Chinese woman, is not convinced. He says the government might feel tempted to target foreigners if they pressed with the need to trim budgets amid ever-swelling welfare expenditures.

Seto said he considers the Supreme Court ruling a virtual “warning” to foreigners in Japan.

“What it’s trying to say,” he said, “is that as a foreigner you shouldn’t consider working or living in Japan because if you were ever to get injured or sick, chances are you will be denied the welfare payments you need, depending on the mood of local officials you deal with,” he said.

What part of the foreign community will be hit hardest?

Topping the list is probably the Koreans who were forcibly brought to Japan before and during World War II after the 1910 annexation of the Korean Peninsula. Some still live without pensions, because by the time Japan removed the nationality clause from its pension system in 1982, they had turned 35 or older, making it impossible to complete the 25 years of pension premiums payments required to before the age of 60, when individuals were then eligible to tap their pension payments.

“For those people welfare benefits have been the last social safety net they could count on, without having to depend financially on their kids to survive,” said Hiroshi Tanaka, professor emeritus of sociology at Hitotsubashi University in Tokyo.

Eriko Suzuki, an associate professor of Kokushikan University in Tokyo who specializes in foreign labor issues, points out that migrant “nikkei” workers from Brazil and so-called Indochina refugees from countries such as Vietnam and Cambodia also need the benefits. Consigned to taking low-paid, dangerous or menial jobs, many of them are often injured and find themselves at great risk of becoming unemployed, she said.

“Accepting foreigners as a labor force and then abandoning them once they’ve become useless will clearly look very bad for Japan in the international community,” Suzuki said.

  • Ben Shearon

    This is unbelievable. Wake up call, indeed.

    Tell me again about attracting ‘top class international talent’ to Japan…

  • Ron NJ

    Another important facet of the ruling here is that the Supreme Court has clarified that kokumin refers only to holders of Japanese citizenship, which flushes down the drain all of the protections against discrimination afforded by the constitution, which were a large part of the basis for the argument that Japan continually makes to the UN for refusing to enact comprehensive racial discrimination laws, as the government of Japan had asserted that foreigners are covered by article 14 – this ruling now ensures that that is no longer the case (not that it ever was to begin with). One of the only, and (theoretically) largest protections afforded against discrimination in Japan has been struck down by proxy thanks to this ruling.

    Yokoso Japan!

  • Stephen Kent

    If the supreme court has decided that foreigners are not entitled to apply for benefits from a system they are legally obliged to pay into then surely the government are morally obliged to exempt foreigners from having to pay into the system in the first place or just guarantee that they can receive benefits if they meet given criteria.
    A safety net can’t really be considered a safety net if you don’t know whether it’s bolted onto the walls properly or not, and it’s unfair to impose worry and stress on people regarding their economic stability if they are paying to a social security system in good faith.

  • http://www.sheldonthinks.com/ Andrew Sheldon

    Well, they’d be victims of a different problem – state sanctioned prejudice. i.e. Politicians that placate any value constituency. Market participants don’t generally discriminate when it comes to value judgements about people. If they did, some opportunist would develop that market. Look at the well-resourced Chinese, Vietnamese, etc in most Western countries who developed ‘Asian precincts’ to service Asians…only to be appreciated by Westerners…who saw with their eyes and liked it. Then we had a transformation of minds. With govt, we have scarcely even dealt with the moral concepts underpinning political discourse…after hundreds of years. So we get this sordid moral ambivalence that sees people wanting to stop “capitalists” from selling drugs. Strangely its the state-side that creates the demand by affirming tragic values, that would not sustain people in a competitive market context. So its the ‘state solution’ that invites drug demand….that keeps people out of jobs. Please refrain from entertaining ‘experiences’ outside of a moral analytical context. Engage in that conceptual ‘thinking’ that differentiates a ‘modern world’ from those tribal values which are a legacy of the past. You don’t need me to think for you. You are perfectly equipped.

  • OsFish

    While this article serves to clarify some misunderstandings in the foreign community, it perpetuates others.

    To be clear: this is about a specific social payment called seikatsuhogo. It is given to people who have little or no income from work or – and this is crucial – from other social payments. This ruling has absolutely nothing to do with social insurance schemes such as unemployment, pensions or health. Nothing at all. This is nothing to do with shakai hoken, which everyone contributing will still get.

    Unfortunately, the lawyer for the claimant, Seto Hisao, says “What it’s trying to say,” he said, “is that as a foreigner you shouldn’t consider working or living in Japan because if you were ever to get injured or sick, chances are you will be denied the welfare payments you need, depending on the mood of local officials you deal with,”

    This is incredibly misleading. If you are working legally full-time in Japan, you will be covered by social insurance. Particularly, if you have an accident at work, you are covered by accident insurance. (Accident insurance is one of the basic principles of social insurance.) If you are paying in properly, you will get to take out when you need it. We have to remember that it’s in the lawyer’s interest to get people’s support, and he’s clearly not beyond rather large exaggeration.

    What is at issue is the safety net that all social insurance systems have: people who were unable to make their social insurance contributions – people who have not paid in. This is called seikatsuhogo, and it’s a means-tested benefit. Current recipients of seikatsuhogo are predominantly the long-term disabled, fatherless families and the elderly. Recipients are about 1% of the population – and there are, I understand, around 46,000 non-citizen recipients within that.

    The article is good that it helps to clarify that long-term residents can and will still get social assistance benefits from municipalities as if they were Japanese. This is something that has been missing from previous reports. What the article states about local authority intentions to continue treating residents as if they were Japanese citizens also chimes with the people I know personally working in this area. I want to stress to those in need: people should not be discouraged from trying to claim assistance if they qualify. Non take-up of welfare benefits can be a serious problem.

    It is possible that this ruling may lead to some municipalities being stricter with non-citizens, but we simply don’t know that. In one important sense, nothing appears to have changed at all. The law needs to be changed to make sure we can be confident that long-term resident non-citizens will get support. But in fighting for this, we need to be clear what we’re fighting for. Many members of the foreign community think all their social income rights have been taken away, and this is not true.

  • http://www.sheldonthinks.com/ Andrew Sheldon

    True, I probably took it as sarcasm. Your point is also valid. I’m not pretentious, just confident and rushed.

  • http://www.sheldonthinks.com/ Andrew Sheldon

    He is an advocate of capitalism, the cronyism was an appendage by conservatives. By default he is a conservative, but I don’t think an insincere ‘predatory’ one.
    Meritocracy is good; you need to differentiate between good and bad standards of value. Don’t renounce the ego because some don’t know how to handle it. Inequality is a poor standard. People can choose inequality. After all, a great many people disdain money….so you’d hardly expect those people to pursue or save it, right?