Having fled Japan while awaiting trial for alleged financial wrongdoing, former Nissan CEO Carlos Ghosn has probably become the most famous foreign national ever arrested in the country. For a while after his initial detention in November 2018, the media discussed Japan’s so-called hostage justice system, which allows prosecutors to compel courts to hold suspects for indefinite periods prior to and during trials. With Ghosn’s escape, this discussion is again in the news, although its focus is misleading in that it gives the impression Ghosn was subjected to harsh legal procedures because he is not Japanese. These legal procedures apply to Japanese defendants as well.
A Jan. 8 Tokyo Shimbun feature compares Ghosn’s case to those of foreign nationals who have run afoul of immigration control. Released on bail, Ghosn was able to exploit the relatively loose border security protocols for people of extraordinary means. The vast majority of foreign nationals in Japan have to deal with much stricter security. And, as one woman who works with immigration detainees explained, Ghosn could come up with the huge amount of money he needed for bail, while some immigration detainees spend years in confinement because they can’t raise the deposit required for provisional release.
Although both immigration and the judiciary currently fall under the supervision of the same government ministry, the Tokyo Shimbun is comparing apples and oranges, because Ghosn, having been arrested, was subject to Japan’s justice system, while most immigration detainees are not, since they are never arrested. They are simply summarily detained by the Immigration, which doesn’t have to follow due process.
According to the Mainichi Shimbun, as of January 2019, there were 1,246 individuals being held in immigration detention facilities in Japan, which has no amnesty system wherein foreign nationals are allowed to stay in the country at large after they arrive while their applications for residency status are studied, though there used to be something similar. As of 2018, if a foreign national shows up at a port of entry and asks for refugee status, they are detained while the authorities investigate — if, in fact, they don’t immediately try to force them to return to their country of origin. In 2018, around 10,000 people applied for refugee status. Forty-two were approved.
The December issue of Sekai has a special feature explaining the thinking behind the procedures that result in foreign nationals being detained for so long. Lawyer Koichi Kodama explains how the system changed in 2018, which presumably reflected new guidelines that were approved in 2016. Previously, applicants could stay in Japan while their applications were considered, a process that should have taken no more than six months. If it took longer, which it often did, the applicant was usually granted permission to work in the meantime. The applicant would need to have entered Japan legally and then applied for refugee status at an immigration office. The new 2018 guidelines specify more reasons for refusing refugee status, many of them based on applicants’ activities after they arrive in Japan. Obviously, if an applicant commits a crime, their application is rejected. However, other reasons for rejection now include having trouble “adjusting to society,” acting to help other foreign nationals stay in Japan improperly and, most confusing, “continuing to apply for (residency) status without an appropriate refugee claim.”
Kodama says these guidelines were adopted because the ministry’s resources were based on around 1,000 applications a year, a figure that hadn’t been realistic since 2008, when the number of applications rose above 1,000 for the first time. However, rather than hire more staff and streamline the process, the ministry just toughened standards for staying, and some of these guidelines may violate the U.N. Convention relating to the Status of Refugees, which Japan signed.
However, this approach to refugee screening also seems to apply to the granting of residency status for all foreign nationals, in that each case depends on the whim of an immigration officer and immigration is not beholden to judicial procedures unless a lawsuit is filed.
This situation was illustrated in a Dec. 19 article on Harbor Business Online by Asahi Oda about a Filipino woman named Emelita, who spent more than three years in detention. Emelita is married to a Japanese national and has two children born in Japan. Some years ago she worked at a Philippine pub and handled bookkeeping at the direction of the owner, which meant carrying out bank transactions. Then she was arrested for a crime that Oda doesn’t specify, but which seems to have something to do with the pub’s finances. Emelita says she didn’t understand the charge against her and wasn’t aware she was doing anything wrong.
Nevertheless, Emelita and the owner were convicted of violating the entertainment business control law. She served a year-and-a-half in prison before being paroled. Upon release she was immediately taken into custody by immigration and placed in a detention facility, awaiting deportation, despite the fact that she has minor children in Japan and was completing her debt to society.
Emelita’s lawyer sued for provisional release, and immigration drew out the court process by demanding more time to prepare documents. Last summer she started a hunger strike. According to her lawyer’s home page, Emelita was granted provisional release on Dec. 23, but until then she was prevented from seeing her children or husband.
Emelita is not a refugee, but her case shows that even those foreign nationals who have been given permission to remain in Japan can be subjected to the same kind of arbitrary processes that make it difficult for refugee applicants to stay.
The point of convergence between Ghosn’s situation and those of immigration detainees is that flight becomes a natural impulse. Ghosn says he saw himself as possibly being a prisoner of Japan for the rest of his life, merely awaiting trial. According to the Tokyo Shimbun, as of June last year, 332 foreign nationals had disappeared while on provisional release from immigration detention, up from 96 in 2014, presumably because they feared being detained again without explanation. The big difference, however, is that many of these fugitives remain in Japan.