National / Crime & Legal | Q&A

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.