Excerpt
Table of Contents
Figures
Tables
List of Abbreviations
Introduction
PART ONE:
Methodology and Background
1. Methodological and historical issues
1.1. Methodology
1.1.1. The Approach
The Functional Approach
1.1.2. Legal Families
1.1.3. Legal Cultures
Elements of Legal Culture
1.1.4. The Place of Comparative Law
1.1.5. The Language of Comparative Law
1.1.6. The Method of Comparative Public Law
1.1.7. Value Judgment (Werturteil)
1.1.8. Conclusions
1.2. Socio-Historical Background
1.2.1. Japan
1.2.2. Austria
1.3. Immigration, Citizenship and State-Sovereignty
1.3.1. Ways to Become a Citizen
1.3.2. Inclusive versus Exclusive Citizenship
1.3.3. Immigration and Nation
2. International Regimes
2.1. The International Covenant on Civil and Political Rights
The First Additional Protocol to the ICCPR
2.2. The Convention on the Rights of the Child
2.3. EC Legislation
2.3.1. Recommendations, Resolutions and Intergovernmental Agreements
2.3.2. The Change to First Pillar Legislation
2.4. The Schengen System
2.4.1. General Remarks
2.4.2. The Regulations in Schengen II
2.4.3. Entry, Short Stays and Movement in the Schengen Area by Non-EU Citizens (Uniform Schengen Visa)
2.4.4. Asylum Matters
2.4.5. Measures to Combat Cross-Border Drug-related Crimes, Police Cooperation and Cooperation among Schengen States on Judicial Matters
2.5. The European Convention on Human Rights
2.5.1. Outline and Short Introduction of the Convention
2.5.2. Compliance Mechanism
PART TWO:
THE IMMIGRATION SYSTEMS OF JAPAN AND AUSTRIA
3. The Japanese Immigration System
3.1. Legal Sources and Basic Concepts
3.1.1. Legal Sources
3.1.2. Basic Concepts of Immigration Control
3.1.2.1. State Discretion = Administrative Discretion?
3.1.2.2. Correct Immigration Control
3.2. Immigration
3.2.1. Entry and Entry Requirements
3.2.2. Landing
3.2.2.1. Visa
3.2.2.1.1. Pre-visa Deliberation (sashō jizen kyōgi)
3.2.2.1.2. Certificate of Eligibility (zairyū shikaku nintei shōmeisho)
3.2.2.2. Further Positive Conditions
3.2.2.3. Denial of Landing
3.2.2.4. Passing the Landing Inspection
3.2.2.5. Failing the Landing Inspection
3.2.2.5.1. The Hearing with the Special Inquiry Officer
3.2.2.5.2. Filing an Objection
3.2.2.5.3. Special Landing Permission
3.2.2.5.4. Provisional Landing Permission
3.2.2.6. Special Cases of Landing
3.2.2.7. Reentry (sainyūkoku)
3.3. Residence Titles
3.3.1. Basic Remarks and Concepts
3.3.1.1. Applicability and Adequacy
3.3.1.2. Activity Related or Status Based
3.3.1.3. No Residence Title
3.3.2. Residence Titles
3.3.3. Typical Immigration Cases
3.3.3.1. Economical Immigrants
3.3.3.1.1. Requirements for Work Related Residence Titles and Their Limitations
3.3.3.1.2. Investor, Skilled Labor and Specialist in Humanities
3.3.3.1.2.1. Investor or Business Manager
3.3.3.1.2.2. Skilled Labor
3.3.3.1.2.3. Expert for Humanities or International Employee
3.3.3.2. Family Union
3.3.3.2.1. Spouses
3.3.3.2.1.1. Spouse of a Japanese National (nihonjin no haigūsha)
3.3.3.2.1.2. Spouse of a Foreign National
3.3.3.2.2. Children
3.3.3.2.2.1. Children with one Japanese Parent – Acquisition of Japanese Nationality
3.3.3.2.2.2. Children without Japanese Nationality
3.3.3.2.3. Nikkeis – Special Children of the Japanese People
3.3.3.3. Short-term Visitors
3.3.3.4. Long Term Residence Titles
3.3.3.4.1. ‘Long-term’ Residence Title (teijū shikaku)
3.3.3.4.2. Permanent Resident (eijūsha)
3.3.3.4.3. Special Permanent Resident (tokubetsu eijūsha)
3.3.3.4.3.1. Historical Origins
3.3.3.4.3.2. The Special Immigration Control Law
3.3.4. Change (henkō) and Renewal (kōshin) of Residence Titles
3.3.4.1. Change of Residence Title
3.3.4.2. Renewal of Residence Titles
3.4. Organizational Framework
3.4.1. Immigration Administration – Organizational Structure
3.4.1.1. Immigration Control Section
3.4.1.2. Regional Immigration Control Offices
3.4.1.3. Immigration Control Centers
3.4.2. Functional Structure
4.1. Legal Sources and Basic Remarks
4.1.1. Legal Sources
4.1.2. Basic Remarks
4.1.2.1. The Federal Principle
4.1.2.2. The Rule of Law Principle
4.2. Entry System
4.2.1. Entry and Entry Requirements
4.2.1.1. Visas
4.2.1.2. Additional Positive Requirements
4.2.1.3. Denial of Entry
4.2.1.4. Passing and Failing the Border Control
4.2.1.5. Special Cases of Entry
4.2.1.6. Reentry
4.3. Residence Titles
4.3.1. Basic Remarks and Concepts
4.3.1.1. Residence and Settlement Permits
4.3.1.2. Quotas
4.3.2. Residence Titles
4.3.2.1. Residence Purposes
4.3.2.2. Requirements
4.3.2.2.1. General Requirements
4.3.2.2.1.1. Application Abroad
4.3.2.2.1.2. Travel Documents
4.3.2.2.1.3. Accommodation
4.3.2.2.1.4. Livelihood
4.3.2.2.1.5. Health Insurance
4.3.2.2.1.6. Health Certificate (Gesundheitszeugnis)
4.3.2.2.1.7. Past Behavior
4.3.2.2.2. Requirements for Settlement Permits – The Integration Agreement
4.3.2.2.2.1. Legislative Process and Basis
4.3.2.2.2.2. Scope
4.3.2.2.2.3. Material and Procedural Provisions
4.3.2.2.2.4. Criticism
4.3.2.2.2.5. European Context
4.3.2.2.2.6. Changes in
4.3.3. Typical Immigration Cases
4.3.3.1. Activity Related
4.3.3.1.1. EEA Nationals
4.3.3.1.1.1. EU-Enlargement
4.3.3.1.1.2. Family Members of EEA Nationals
4.3.3.1.1.3. Swiss Nationals
4.3.3.1.2. Unskilled Workers
4.3.3.1.3. Trainees and Volunteers
4.3.3.1.4. Skilled Workers – Key-Personnel
4.3.3.1.5. Self-Employment
4.3.3.2. Family Reunification
4.3.3.2.1. Spouses
4.3.3.2.1.1. Marriage Law
4.3.3.2.1.2. Residence Regime for Spouses
4.3.3.2.2. Children
4.3.3.2.2.1. Children of Austrian Nationals
4.3.3.2.2.2. Children of Foreign Nationals
4.3.3.2.3. Other Relatives
4.3.3.3. Short-Term Visitors
4.3.3.4. Long Term Settlement
4.3.4. Change and Renewal of Residence Titles
4.3.4.1. Change of Residence Titles
4.3.4.1.1. Same Kind of Residence Title
4.3.4.1.2. Different Kinds of Residence Titles
4.3.4.2. Renewal of Residence Titles
4.4. Organizational Framework
4.4.1. Jurisdiction over the Subject
4.4.2. Local Jurisdiction
4.4.3. Immigration Administration – Organizational Structure
4.4.3.1. The Section inside the Ministry
4.4.3.2. Public Security Directorates
4.4.3.3. Federal Police Offices and District Administrative Authorities
4.4.4. Examples for Administrative Processing
4.4.4.1. Residence Permit
4.4.4.2. Settlement Permit
5. The Japanese and Austrian Immigration Systems - Comparison and Interpretation
5.1. Qualitative Comparison
5.1.1. Administrative Decision Making
5.1.1.1. The Issue of General Decrees
5.1.1.2. Other Regulations of General Nature
5.1.2. Visa System
5.1.3. Denial of Entry
5.1.4. Preferential Treatment
5.1.4.1. Special Preferential Treatment
5.1.4.2. Preferential Treatment
5.1.5. Skilled and Unskilled Labor
5.1.6. Temporary and Long Term Residence
5.1.6.1. First-step Long Term Residence Titles
5.1.6.2. Second-step Long Term Residence Titles
5.1.7. Quantitative Immigration Control
5.1.8. Immigration and Integration
5.1.9. Organizational Differences
5.2. Quantitative Comparison
5.2.1. Methodological Background
5.2.1.1. Included Immigrants
5.2.1.2. Basic Assumptions
5.2.1.3. Index Building
5.2.1.3.1. Indicators
5.2.1.3.2. Weights
5.2.3. Formulating the Indicators
5.2.3.1. Access Requirements
5.2.3.2. Restrictions
5.2.4. Residence of First Generation Immigrant
5.2.4.1. Overview on Indicators and Weights
5.2.4.2. Access to Additional Titles (or Renewal) and to the Best Title
5.2.4.3. Restrictions on the First, Renewed and Best Residence Title
5.2.4.4. Integrating the Results
5.2.5. Family Reunification
5.2.5.1. Anchor Person is a Foreigner
5.2.5.1.1. Indicator Composition
5.2.5.1.2. Family Reunification for Spouses of Anchor Aliens
5.2.5.1.3 Family Reunification with Minor Children of Anchor Aliens
5.2.5.1.4. Family Reunification with Other Family Members of Anchor Aliens
5.2.5.1.5. Integration of Results for Family Reunification with Anchor Aliens
5.2.5.2. Anchor Person is a Host Country’s National
5.2.5.2.1. Indicator Composition
5.2.5.2.2. Family Reunification for Spouses of Nationals of the Host Country
5.2.5.2.3. Family Reunification with Minor Children of the Host Countries’ Nationals
5.2.5.2.4. Family Reunification with Other Family Relatives of the Host Countries’ Nationals
5.2.5.2.5. Integration of Results for Family Reunification with Nationals of the Host Country
5.2.6. Concluding Remarks
PART THREE:
THE DEPORTATION SYSTEMS OF JAPAN AND AUSTRIA
6. The Termination of Stay
6.1. Introduction, Organization and Terminology
6.1.1. Introduction
6.1.2. Terminology
7. The Termination of Stay in the Japanese Immigration Control System
7.1. Reasons for the Termination of Stay
7.1.1. Reasons for Revoking a Residence Title
7.1.2. Reasons for a Departure Order
7.1.2.1. Overstaying a Designated Period
7.1.2.2. Additional Conditions
7.1.3. Reasons for Deportation Orders
7.1.3.1. Violation of Entry Procedures/Requirements
7.1.3.2. Unlawful Overstay
7.1.3.3. Forged Documents
7.1.3.4. Public and Social Order
7.1.3.4.1. Allowed Political Activities
7.1.3.5. Unlawful Commercial/Labor Activities
7.1.3.6. Deviations
7.1.4. Deportation Measures and Entry Prohibitions
7.2. Procedures for the Termination of Stay
7.2.1. Procedure for the Revocation of Residence Title
7.2.2. Procedure for the Departure Order
7.2.3. Procedure for the Deportation of Aliens
7.2.3.1. Start of the Deportation Procedure
7.2.3.2. Investigation of Violations (ihan chōsa)
7.2.3.3. Examination by the Immigration Inspector (nyūkoku shinsakan no shinsa)
7.2.3.4. The Hearing (kōtō shinri)
7.2.3.4.1. The Right to a Translator?
7.2.3.4.2. The Problem of Discretion
7.2.3.5. Protest Application (igi no mōshide)
7.2.3.5.1. Protest Evaluation
7.2.3.5.2. Special Residence Permit
7.2.3.6. Special Permanent Residents
7.2.3.6.3. Security from Deportation?
7.3. Special Residence Permit
7.3.1. The Administration’s Perspective
7.3.1.1. Successful Applications
7.3.1.2. Experiences with Special Residence Permits
7.3.1.3. Appeals to the Court and the Suspension of Execution
7.3.2. Results from the Judicial Review Process
7.3.2.1. The Point of Departure
7.3.2.2. Humanitarian and Justice Conceptions
7.3.2.3. False Recognition of Facts or General Notions of Society
7.3.2.4. Combining the Two Above Standards
7.3.2.5. The “Equality Principle” and the “Proportionality Principle”
7.3.3. The Academic Discussion
7.3.3.1. Freedom of Residency
7.3.3.2. The International Civil Rights Covenant
7.3.3.2.1. Freedom of Residency
7.3.3.2.2. Respect for Private Life
7.3.3.2.3. Right to Marriage and Family
7.3.3.3. The Convention on the Rights of the Child
7.4. Detention
7.4.1. Basic Forms of Detention
7.4.1.1. Detention for the Purpose of Investigation
7.4.1.2. Detention for the Execution of the Deportation Order
7.4.2. Inherent Problems of the Detention System
7.4.2.1. Length of Detention and Provisional Release
7.4.2.2. The Competence of the Supervising Immigration Inspector
7.4.2.3. The Principle of Minimal Invasiveness in Administrative Procedures
7.4.3. Problems During the Detention
7.4.3.1. The Treatment of Detainees
7.4.3.2. Legal Safeguards During the Detention
7.5. Recent Developments and Important Issues
7.5.1. The Special Residence Permit
7.5.1.1. The Nature of the Special Residence Permit
7.5.1.2. Beneficiaries of Special Residence Permits
7.5.1.3. Jurisdictional Changes
7.5.1.4. Suggestions
7.5.2. The New Measures – The Revocation of Residence Titles and the Departure Order
7.5.2.1. The Revocation of Residence Titles
7.5.2.2. The Departure Order
7.5.3. Crackdowns on Illegal Workers
7.5.4. Procedural Rights
8. The Termination of Stay in the Austrian Immigration Control System
8.1. Reasons for the Termination of Stay
8.1.1. The Invalidation of Unlimited Residence Titles
8.1.2. The Re-transferal (Zurückschiebung)
8.1.3. The Rejection (Zurückweisung)
8.1.4. Prohibition of Re-transferal and Rejection
8.1.5. The Expulsion Order (Ausweisung)
8.1.5.1. Aliens without Residence Titles
8.1.5.1.1. Unlawful Stay
8.1.5.1.2. No Residence Title
8.1.5.2. Aliens with Residence Titles
8.1.6. The Residence Ban (Aufenthaltsverbot)
8.1.7. Restrictions on the Issue of Expulsions and Residence Bans
8.1.7.1. The Alien’s Interests and the Need for Balancing
8.1.7.2. The Consolidation of Residence
8.2. Procedures for the Termination of Stay
8.2.1. The Expulsion Order
8.2.1.1. The Administrative Proceedings
8.2.1.1.1. Adversary Proceedings
8.2.1.1.2. Application to Determine the Unlawfulness of an Expulsion Order
8.2.1.1.3. Submission of Appeals
8.2.1.1.4. The Pre-appellation Decision (Vorabentscheidung)
8.2.1.1.5. The Appeal
8.2.1.2. Legal Control of the Administration
8.2.1.2.1. Suspensive Effects
8.2.1.2.2. The Administrative Court
8.2.1.2.3. The Constitutional Court
8.2.1.2.4. Short Introduction into Constitutionally Guaranteed Rights in the Austrian Legal System
8.2.1.2.5. Comment on the Jurisdictional Demarcation between Constitutional and Administrative Court
8.2.1.2.6. The European Court of Human Rights
8.2.2. The Residence Ban
8.2.3. Re-transferal
8.2.3.1. The Independent Administrative Tribunal (IAT) – Basic Remarks
8.2.3.2. The Administrative Proceedings
8.2.3.2.1. Act of Immediate Power of Command and Coercion
8.2.3.2.2. Art. 57 AA Procedure
8.2.3.2.3. Independent Administrative Tribunal
8.2.3.2.4. Rejections and the Airport Scenario
8.2.3.3. Legal Control of the Administration
8.3. Case Law
8.3.1. Case Law concerning Residence Bans and Expulsion Orders
8.3.1.1. Remarks on the Jurisdiction
8.3.1.2. Degree of Integration
8.3.1.2.1. The Appropriate Length
8.3.1.2.2. Relations and Integration
8.3.1.2.3. Integration versus Deviation
8.3.1.3. Legal Minors and Youths
8.3.1.4. The Need for Medical Care
8.3.1.5. The Use of Discretion
8.3.1.5.1. Principal Remarks
8.3.1.5.2. The Obligation to take Changes into Account
8.3.1.6. The Illegal Entry/Stay
8.3.1.7. Lacking Means
8.3.1.8. Fake Marriages
8.3.1.9. Non-refoulement Obligation
8.3.1.10. Procedural Concerns
8.3.1.10.1. Deadlines
8.3.1.10.2. Suspensive effects
8.3.1.10.3. Proceedings at the Administrative Office
8.3.2. Case Law concerning Rejection and Re-transferal
8.3.2.1. Rulings Concerning Border Control
8.3.2.1.1. Reasons for Rejection at the Border
8.3.2.1.2. The Airport Scenario
8.3.2.2. Lawfulness of Rejection and Re-transferal
8.3.3. ECHR Case Law
8.3.3.1. The Prohibition of Torture (Art. 3)
8.3.3.1.1. Character of Article
8.3.3.1.2. The Threshold of Severity Test
8.3.3.1.3. Sorabjee vs. UK and D. vs. UK
8.3.3.2. The Prohibition of Collective Expulsion
8.3.3.2.1. Character of Article Four of the Fourth Additional Protocol
8.3.3.2.2. Case Law
8.3.3.3. The Right to Respect for Family and Private Life
8.3.3.3.1. Character of Article Eight
8.3.3.3.2. The Article Eight Test
8.3.3.3.3. Case Law
8.3.3.4. Influences on the Austrian Deportation System
8.3.3.4.1. General Remarks
8.3.3.4.2. Specific Influences
8.4. Detention
8.4.1. Forms of Detention
8.4.1.1. Arrest (Festnahme)
8.4.1.2. Deportation Detention (Schubhaft)
8.4.1.3. Alternative Measures
8.4.1.3.1. General Remarks
8.4.1.3.2. Alternative Measures and Minors
8.4.1.3.3. Corroboration with Public Agencies
8.4.2. Problems during Detention
8.4.2.1. Prompt Release
8.4.2.2. Treatment in Detention
8.4.2.3. Lawful Detention
8.5. Deportation (Abschiebung)
8.5.1. Deferral of Enforcement
8.5.2. Delay of Deportation (Abschiebungsaufschub)
8.5.2.1. Factual Impossibility
8.5.2.2. Unlawful Character of Deportation
8.6. Recent Developments and Important Issues
8.6.1. Legal Safeguards in Re-transferals and Rejections
8.6.2. Failed Integration and Deportation
8.6.3. Deportation and the Schengen Area
8.6.4. The Deportation of Minors
8.6.5. The Invalidation of Residence Titles
8.6.6. Extending Deportation Reasons
8.6.7. Marriage, Adoption and Deportation
9. The Termination of Stay – Comparative Analysis of Japan and Austria
9.1. Qualitative Comparison
9.1.1. Measures to Terminate the Stay of Aliens
9.1.1.1. Revocation of Residence Titles
9.1.1.2. Departure Order = Expulsion Order?
9.1.1.3. Deportation Order = Residence Ban?
9.1.1.4. No Need for Re-transferals?
9.1.1.5. Conclusions
9.1.2. Reasons for the Termination of Stay
9.1.2.1. Illegal Entry, Illegal Residence and Illegal Activities
9.1.2.2. Deviations
9.1.2.3. Economical Reasons
9.1.2.4. Public Order and National Security
9.1.2.5. Special Issue – Fake Marriages
9.1.2.6. Conclusions
9.1.3. Differences in Procedures and Procedural Rights
9.1.3.1. Right of Access to Information
9.1.3.2. Right to Submit Information
9.1.3.3. Right to a Translator
9.1.3.4. Right to Effective Administrative Remedies
9.1.3.5. Conclusions
9.1.4. Considering the Interests of Aliens
9.1.4.1. The Consolidation of Residence
9.1.4.2. The Regard for Family Life
9.1.4.3. Humanitarian Cases
9.1.4.4. The Interests of Children
9.1.4.5. Conclusions
9.1.5. Detention and Factual Deportation
9.1.5.1. Detention
9.1.5.2. Factual Deportation
9.2. Quantitative Comparison
9.2.1. Loss of Residence Status of First Generation Immigrants
9.2.1.1. Indicators
9.2.1.2. Overview on Indicators and Weights
9.2.1.3. Comparison between Japan and Austria regarding Termination of Stay Conditions
9.2.1.3.1. Termination of the First Residence Title of First Generation Immigrants
9.2.1.3.2. Termination of Additional Residence Titles of First Generation Immigrants
9.2.1.3.3. Termination of the Best Residence Titles of First Generation Immigrants
9.2.1.3.4. Integrating the Results
9.2.2. Loss of Residence Status of Foreign Spouses
9.2.2.1. Loss of Residence Status of Spouses of Foreign Anchor Aliens
9.2.2.1.1. Indicators
9.2.2.1.2. Overview on Weights and Indicators
9.2.2.1.3. Conditions for the Termination of Stay for the First Residence Title
9.2.2.1.4. Conditions for the Termination of Stay for the Best Residence Title
9.2.2.1.5. Conditions for the Termination of Stay for the Title in the Spouse’s Own Name
9.2.2.1.6. Integrating the Results
9.2.2.2. Loss of Residence Status of Spouses of the Home Country’s Nationals
9.2.2.2.1. Indicators and Overview on Indicators and Weights
9.2.2.2.2. Conditions for the Termination of Stay for the First Residence Title
9.2.2.2.3. Conditions for the Termination of the Best Residence Title
9.2.2.2.4. Conditions for the Termination of the Spouse’s Own Residence Title
9.2.2.2.5. Integrating the Results
9.2.3. Loss of Residence Status of Children with Foreign Nationality
9.2.3.1. Children who Follow the Anchor Alien to the Host Country
9.2.3.1.1. Indicators and Overview
9.2.3.1.2. Termination of the First Residence Title of Children who Followed their Anchor Alien to the Host Country
9.2.3.1.3. Termination of the Best Residence Title of Children who Followed their Anchor Alien to the Host Country
9.2.3.1.4. Termination of the Residence Title in the Own Name of Children who Followed their Anchor Alien to the Host Country
9.2.3.1.5. Integrating the Results
9.2.3.2. Children who are Born to Anchor Aliens in the Host Country
9.2.3.2.1. Indicators and Overview
9.2.3.2.2. Termination of the First Residence Title of Children Born in the Host Country
9.2.3.2.3. Termination of the Best Residence Title of Children Born in the Host Country
9.2.3.2.4. Termination of the Residence Title in the Own Name of Children Born in the Host Country
9.2.3.2.5. Integrating the Results
9.2.4. Conclusions and Results from the Quantitative Analyses
Conclusions
References
Figures
Figure 1. The Relation Between Roman-Germanic Legal Systems and other Legal Systems within the Basic Elements Approach
Figure 2: Social Integration Continuum
Figure 3. The Member States of the Council of Europe ≈ The Geographical Area of Jurisdiction for the Court of Human Rights
Figure 4. Number of New Entries and Reentries Between 1975 and 2003
Figure 5. Pre-visa Deliberation Process Starting with the Alien’s Visa Application at the Consular Office Abroad
Figure 6. Available Residence Titles (bold) for Nikkeis and their Families
Figure 7. Development of ‘Special Permanent’ (SPR), ‘Permanent’ (PR), and ‘Long-Term’ (LTR) Residents Numbers between 1998 and 2002
Figure 8. Immigration Administration Separated into Types of Offices
Figure 9. Organizational Structure of the Immigration Control Section in the Ministry of Justice
Figure 10. Structural Outline of the Tokyo Immigration Office
Figure 11. Organizational Structure of Immigration Control Centers
Figure 12. Changes in the Numbers of Immigration Administration Officers (Min.Sec. refers to the Officers Working in the Ministry of Justice’s Immigration Control Section)
Figure 13. General Outline of the Security Administration in Austria
Figure 14. Simplified Organizational Chart of the Austrian Ministry of the Interior’s Internal Organizational Separation
Figure 15. Administrative Instances for Residence Permits
Figure 16. Administrative Instances for Settlement Permits
Figure 17: Demographic Population Pyramids for Japan and Austria
Figure 18. First Generation Immigrant Friendliness for Residence Aspect. (Lower Scores Indicate Higher Immigrant Friendliness)
Figure 19. Relative Position of Austria and Japan in regards to Family Reunification for Anchor Aliens
Figure 20. Relative Position of Austria and Japan in regards to Family Reunification for Host Country’s Nationals
Figure 21. Simplified Sequential Model in Deportation Cases
Figure 22. Number of Deported Aliens from 1990 to 2003; Numbers in Thousands
Figure 23. Procedure for the Revocation of Residence Titles
Figure 24. Outline of the Procedure for the Departure Order
Figure 25. Procedure for the Deportation of Aliens. Spec.Res.Per.= Special Residence Permit; Con.Res.=Continue Residence, Depart. Order=Departure Order
Figure 26. The Administrative Process for Expulsion Orders
Figure 27. Remedies beyond the Administration
Figure 28. Administrative Procedure for Re-transferal and Rejection
Figure 29: Termination of Stay for First Generation Immigrants in an International Comparison. Lower scores Indicate Higher Immigrant Friendliness
Figure 30: Termination of Residence of Alien Spouses of Anchor Aliens in an International Comparison. Lower Scores Indicate Higher Immigrant Friendliness
Figure 31: Termination of Residence of Alien Spouses of Host Country Nationals in an International Comparison. Lower Scores Indicate Higher Immigrant Friendliness
Figure 32: Termination of Residence of Children who Follow their Anchor Alien in the Host Country in an International Comparison. Lower Scores Indicate Higher Immigrant Friendliness
Figure 33: Termination of Residence of Children Born in the Host Country in an International Comparison. Lower Scores Indicate Higher Immigrant Friendliness
Tables
Table 1: Recent EU Directives on Immigration Control
Table 2: Aliens Failing the Landing Inspection between 1998 and 2002 Separated for the Reasons Provided in Art. 7 (1) ICA
Table 3: Objections Against the Decision of the Special Inquiry Officer to Deny Landing and Their Results
Table 4: Activity Related Residence Titles
Table 5: Status Based Residence Titles
Table 6: Change in Residence Titles between 1998 and 2002 for Different Groups of the Immigration Control Act
Table 7: Available Residence Titles and Affected Children
Table 8: Reasons for the Rejection of Aliens at the Border Control (2002-2004)
Table 9: Distribution of Subquotas between 2002 and 2005
Table 10: Purposes for Residence Permits
Table 11: Purposes for Settlement Permits
Table 12: Newly Issued and Total Issued Residence Titles between 2002 and 2004
Table 13: Comparative Overview on Integration Measures in Different European Countries
Table 14: Stage System for Transitional Measures to Achieve Full Liberty of Movement for Workers Within all EU Member States
Table 15: Residence Titles for Children and Spouses of Different Anchor Aliens
Table 16: Number of Settlement Permits for Various Purposes
Table 17: Visa Exempted Countries for Austria (58 countries) and Japan (62)
Table 18: Preferential Treatment Systems for Different Groups of Aliens in Japan and Austria
Table 19: Privileges for the Groups Receiving Special Preferential Treatment in Japan and Austria
Table 20: Privileges for Family Members of Austrian and Japanese Nationals in regards to Immigration
Table 21: Main Side Doors for Low Skilled or Unskilled Workers in Japan and Austria
Table 22: Overview on the Long Term Residence Titles in Japan and Austria
Table 23: Residence of First Generation Immigrant – Categorizations and Weights
Table 24: Renewal Requirements for Settlement Permit in Austria
Table 25: Renewal Requirements for Residence Title in Japan
Table 26: Access Conditions for the ‘Proof of Settlement’ in Austria
Table 27: Access Conditions for the ‘Permanent’ Residence Title in Japan
Table 28: Restrictions on the First Settlement Permit in Austria and the First Residence Title in Japan
Table 29: Restrictions on the Additional Titles in Austria and Japan
Table 30: Restrictions on the ‘Proof of Settlement’ and the ‘Permanent’ Residence Title
Table 31: Overview on the Weights Needed to Calculate the Final Score
Table 32: Subscale Scores for Japan and Austria
Table 33: Immigrant Friendliness of Several European Countries and Japan for the three Different Titles
Table 34: Family Reunification to Foreign Anchor Persons – Overview for Calculation
Table 35: Reunion with Spouse of Anchor Aliens in Austria, if the Marriage was Contracted before the Immigration
Table 36: Reunion with Spouse of Anchor Aliens in Austria, if the Marriage was Contracted after the Immigration
Table 37: Reunion with Spouse of Anchor Alien in Japan, if the Marriage was Contracted before the Immigration
Table 38: Reunion with Spouse of Anchor Aliens in Japan, if the Marriage was Contracted after the Immigration
Table 39: Reunion with Children of Anchor Aliens in Austria
Table 40: Reunion with Children of Anchor Aliens in Japan
Table 41: Reunion with Other Family Relatives of Anchor Aliens in Austria
Table 42: Reunion with Other Family Relatives of Anchor Aliens in Japan
Table 43: Overview on Family Reunification Opportunities for Anchor Aliens in Japan and Austria
Table 44: Family Reunification to Anchor Persons Holding the Host Country’s Nationality – Overview for Calculation
Table 45: Family Reunification with Spouses in Austria
Table 46: Family Reunification with Spouses in Japan
Table 47: Family Reunification with Minor Children in Austria
Table 48: Family Reunification with Minor Children in Japan
Table 49: Family Reunification with Other Family Members of Austrian and Japanese Nationals
Table 50: Overview on Family Reunification Opportunities for Family Members of Nationals of Japan and Austria
Table 51: Scores and Relative Position of Austria and Japan in regards to the 3 Subscales
Table 52: Statistics on Processed Cases in Deportation Investigations
Table 53: Number of Aliens Deported from Austria in 2001 and
Table 54: Special Circumstances in the Sorabjee vs. UK and the D. vs. UK Cases in regards to a Violation of Article 3
Table 55: Some Prominent Cases and the Arguments Employed by the Court to Decide the Proportionality of the Deportation Decision
Table 56: Available Measures to Terminate an Alien’s Stay in Japan and Austria
Table 57: Unwelcome Aliens in Austria and/or Japan
Table 58: Comparative Overview on Administrative Remedies
Table 59: Indicators and Weights for the Termination of Stay of First Generation Immigrants
Table 60: Termination of the First Settlement Permit of First Generation Immigrants in Austria
Table 61: Termination of the First Residence Title of First Generation Immigrants in Japan
Table 62: Termination of the Additional Settlement Permits of First Generation Immigrants in Austria
Table 63: Termination of the Additional Residence Titles of First Generation Immigrants in Japan
Table 64: Termination of the Proof of Settlement Residence Title of First Generation Immigrants in Austria
Table 65: Termination of the Permanent Residence Title of First Generation Immigrants in Japan
Table 66: The Termination of Stay of First Generation Immigrants in Austria and Japan
Table 67: Conditions for the Termination of Residence Titles of First Generation Immigrants in Several European Countries and Japan
Table 68: Indicators and Weights for the Termination of Stay of Spouses of Foreign Anchor Aliens
Table 69: Termination of Stay Conditions for Swith ‘Family Member Key-personnel’ Settlement Permits in Austria
Table 70: Termination of Stay Conditions for Spouses with ‘Dependent’ Residence Titles in Japan
Table 71: Termination of Stay Conditions for Spouses with ‘Proof of Settlement’ in Austria
Table 72: Termination of Stay Conditions for Spouses with ‘Permanent’ Residence Title in Japan
Table 73: Termination of Residence Titles of Spouses of Anchor Aliens in Japan and Austria
Table 74: Conditions for the Termination of Residence Titles of Alien Spouses in Several European Countries and Japan
Table 75: Conditions for the Termination of the ‘Preferential Third-state Austria’ Settlement Permit
Table 76: Conditions for the Termination of the ‘Spouse of a Japanese National’ Residence Title
Table 77: Conditions for the Termination of the ‘Proof of Settlement’ of Spouses of Austrian Nationals
Table 78: Conditions for the Termination of the ‘Permanent’ Residence Title of Spouses of Japanese Nationals
Table 79: Conditions for the Termination of the ‘Unlimited’ Settlement Permit of the Spouse of Austrian Nationals
Table 80: Conditions for the Termination of ‘Long-term’ Residence Title of Alien Spouses of Japanese Nationals
Table 81: Termination of Residence Titles of Alien Spouses of Japanese and Austrian Nationals
Table 82: Conditions for the Termination of Residence Titles of Alien Spouses of Host Country Nationals in Several European Countries and Japan
Table 83: Indicators and Weights for the Termination of Stay of Children of Anchor Aliens
Table 84: Conditions for the Termination of the ‘Key-personnel Family Member’ Settlement Permit of Children who Followed their Anchor Alien to Austria
Table 85: Conditions for the Termination of the ‘Dependent’ Residence Title of Children who Followed their Anchor Alien to Japan
Table 86: Conditions for the Termination of the ‘Proof of Settlement’ Residence Title of Children who Followed their Anchor Alien to Austria
Table 87: Conditions for the Termination of the ‘Permanent’ Residence Title of Children who Followed their Anchor Alien to Japan
Table 88: Conditions for the Termination of the ‘Unlimited Settlement Permit Except Gainful Activities’ of Children who Followed their Anchor Alien to Austria
Table 89: Termination of Residence Titles of Second Generation Immigrants of Japanese and Austrian Anchor Aliens
Table 90: Conditions for the Termination of Residence Titles of Foreign Children who Follow the Anchor Alien into the Host Countries
Table 91: Conditions for the Termination of the ‘Key-personnel Family Member’ Settlement Permit of Children Born in Austria
Table 92: Conditions for the Termination of the ‘Dependent’ Residence Title of Children Born in Japan
Table 93: Conditions for the Termination of the ‘Proof of Settlement’ Residence Title of Children who Followed their Anchor Alien to Austria
Table 94: Termination of Residence Titles of Second Generation Immigrants of Japanese and Austrian Anchor Aliens
Table 95: Conditions for the Termination of Residence Titles of Foreign Children Born in the Host Countries
Table 96: Termination of Stay Results for Different Groups of Aliens.
List of Abbreviations
illustration not visible in this excerpt
Introduction
Internationalization and globalization during the last decades has transformed the world in a village. Not only the worldwide exchange and availability of information, services and goods but also the migration of people has coined the impression of a global village. But in contrast to a village, inhabitants of the global village are not welcome everywhere. Some may come, some may not and some are being sent back because of … well, because of what? To answer this question for Japan and Austria, to determine under what circumstances foreign residents turn into unwelcome aliens, and to understand how they are forced to leave the host society was the aim of this study.
The primary focus of the present paper is a comparison between the Japanese and the Austrian deportation systems. The paper is divided in three parts which deal with (1) methodological and background reasons, (2) a report on the immigration systems of Japan and Austria and a comparison thereof, and (3) the analysis and comparison of the deportation systems of Japan and Austria.
Part One of the study provides an (1) introduction in the comparative method employed in the present paper – the functional approach, (2) some socio-historical and political remarks and (3) an overview of the most important international regimes that influence each country’s deportation system. Because of lack of space, most of this First Part remains on the level of an introductory overview.
Part Two of the study discusses and compares the immigration systems of Japan and Austria. Although the corresponding chapters of the Second Part go into some details, they only constitute reports on the immigration systems and do not generally include extensive case law or academic discussions. In regards to the introduction of the new alien laws in Austria (some of which entered into force in January 2006), special sections at the end of the respective subchapters include the changes due to the new legislation (this also applies to the later chapter on the Austrian deportation system). The comparison of the two immigration system, which rounds off this Second Part, serves several aims. First, it provides an opportunity to discuss some interesting features of the two immigration systems like lacking immigration opportunities for unskilled workers, the preferential treatment of some groups of aliens etc. Secondly, the comparative chapter allows also for the introduction of the quantitative method which will be used again in the later comparison of the two deportation systems. The quantitative approach is a step away from traditional legal interpretations which usually build on the analyses of texts (laws, case law, administrative decisions). Necessarily, also the quantitative approach is grounded in these texts but its method is based on numbers and numerical relations instead of textual phrases and the relations between these phrases. The great advantage of the quantitative approach is its capability (1) to open a more general perspective on the object of investigation and (2) to facilitate the comparison among different countries.
Part Three of this paper then investigates and compares the deportation systems of Japan and Austria. The deportation systems are each discussed thoroughly and with a focus on the available deportation measures, the respective deportation reasons and procedures and the possible remedies against administrative decisions. Particularly for the discussion of remedies, heavy weight rests on case law which clarifies some recurrent issues like the limits for the use of the special residence permit in Japan or the balancing of individual and public interests in Austria. Following the functional approach, problematic issues of each of the two deportation systems (e.g. the introduction of new deportation measures, the expansion of deportation reasons to new situations etc.) are first discussed within their respective legal system in special subchapters on recent developments and important issues. Only then does the discussion move to the comparison of the two deportation systems. Similarly to the comparison of the immigration systems, the comparison of the deportation systems employs the qualitative and the quantitative approach. The qualitative comparison elaborates on important differences in regards to deportation measures, deportation reasons and deportation procedures as well as differences in the handling of specific groups (humanitarian cases, children as deportees, etc.). The quantitative approach focuses on the residential security of first generation immigrants, their immediate family members and second generation immigrants born in the host society.
Finally, a short conclusion reviews some overall findings of this investigation and provides some suggestions for potential changes. Some highlights of the present paper are the introduction in recent/future legislative changes, the detailed and up-to-date discussion of existing case law, the application of a qualitative and a quantitative approach for the comparison of legal systems, and the readability for a broad audience because of the use of the English language (which includes the first translation of many materials into English from either German or Japanese).
PART ONE:
Methodology and Background
1. Methodological and historical issues
This introductory part should give an overview on the rest of the paper and provide valuable methodological background information that facilitates an understanding of the various topics included in this study. Because a main part of this study aims at the comparison between the immigration and deportation rules of Japan and Austria, the first chapter in the introduction outlines the methodology of comparative law. As this chapter will show, the understanding of legal institutions in different legal systems requires more than a detailed description of the respective legal institution; additional information like historical-social developments and other influences like a country’s international obligations influence the legal system in regards to immigration and deportation systems. Subchapter two of this introductory chapter includes a short essayistic report on the history of Japan and Austria and the afore-mentioned international obligations are introduced in Chapter Two on international treaties and supranational legislation. This introduction remains necessarily short and is confined to the areas of interest in this study.
1.1. Methodology
Comparative law as an academic science is a relatively young discipline that evolved over the last two centuries mainly in Western Europe before it was gradually accepted also in other countries outside Europe. Originally, continental Europe knew Roman law as the essential source of law. Due to the prominent position occupied by Roman law among the legal elites of those days, continental Europe had a uniform way of legal thinking, although regional legal components mixed with legal institutions from Roman law. However, the codification process in the eighteenth century fixed the existing differences in form of codes and national pride prevented learning from the legal systems of other countries.[1] Thus, the study of differences among those codes began. Notwithstanding its short history as an academic discipline, the roots of comparative law reach much further back in time and include works of the glossators and reflections on canonical law. As an academic discipline comparative law possesses its own methodology and its own field, although the separation from other disciplines such as international law and international private law is not always a simple one.
Zweigert and Kötz credit a congress held in 1900 in Paris with starting comparative law as an academic science. The belief in crossing national borders inspired the idea of a universal law – a droit commune de l’humanité – and comparative law should help to reduce the differences among national legal systems.[2]
In this chapter I want to introduce the methodology, field and aims of comparative law and finish with discussing the proper place for value judgments in comparative law research. Conclusions derived for the present study are added in the last subchapter.
1.1.1. The Approach
Hand in hand with the unprecedented historical changes during the last two-hundred years, the approach comparative law takes towards the study of legal phenomena has been changing constantly. First, the law as rules approach dominated comparative law. Comparison as the fundamental method of comparative law was understood rather straightforward and conducted by listing legal rules from different legal systems side by side and describing them. Thus, this approach restricted itself to the study of legal rules and the comparison remained on a purely descriptive, non-interpretational level.
A more ambitious approach – the legal discourse approach – focuses not on comparing merely legal rules but on the way lawyers and other people who need to work on certain legal issues in different legal systems deal with the components of their respective legal systems and how they reason about it. Due to this emphasis on practical solutions this approach includes not only legal texts but the whole set of components necessary to cope with a problem effectively (e.g. the organizational framework, the perception of the problem, the inclusion of academic work, if applicable, etc.).
The Functional Approach
Another, more modern but also more modest[3] approach is the function of law or functional approach. Given the problems of analyzing a foreign legal system through one’s own doctrinal concepts, the representatives of this approach call for the use of a tertium comparationis – a neutral and objective position that serves as a basis for the comparison of different legal institutes. Despite this approach’s favor for objective and neutral criteria, it does not fail to encompass broader influences such as history, the mode of thought, ideology etc. but tries to separate them from the more objective comparison through the concept of legal style.[4]
E. Rabel stated the basic principle of the functional approach – the functionality principle – claiming that only things which fulfill the same function can be compared.[5] All legal systems face by and large similar problems but solve them in different ways albeit with sometimes very similar results. The starting point therefore is the social problem which in a first step needs to be stated in purely functional terms omitting all references to legal institutions. The reference to the social context and the omission of legal references in this first step helps shedding the dogmatic concepts of one’s own legal system.
The goal of the analysis is to test the different legal institutions that exist in the different legal systems for their responsiveness to the respective social problem. Here, two questions should be answered separately: (1) how do the legal institutions respond to the social problem and (2) how well do they respond. The answer to the first question, of course, is a purely descriptive one, while the answer to the second one contains references to some criteria in order to determine the goodness of the response. For meaningful answers, those legal sources that are employed in the concerning legal system should be used and an interdisciplinary approach employing historical and sociological evidence is recommended.
Zweigert and Kötz emphasize that comparative law has a lot to learn from other sciences, e.g. from sociology, in regards to the way how to define a problem, how to include non-legal forces that shape the respective conduct and behavior and how to explain the resulting findings.[6]
While only the comparison with closely related legal systems was perceived as valuable during the first decades in the last century (i.e. not even a comparison between civil law and common law countries was considered meaningful), today’s focus on social problems and their solutions provided by legal systems enables valuable comparisons beyond these narrow restrictions.[7] There is also no need to restrict comparative law to the study of private law. Public law institutions in different legal systems can be meaningfully compared although the indication of a ‘better’ solution might prove to be difficult under such circumstances and must always include references to the respective social environment.[8]
Aims for comparative law in the functional approach are the assistance in legislation and law-making, the harmonization or unification of law and the assistance for the individual judge. As for the legislative process, comparative law e.g. in Germany is traditionally included before larger legislative projects are started. Many Eastern European countries also serve as good examples for an intelligent employment of comparative law by the respective legislator.[9] When tackling with lacking legal institutions after the breakdown of the communistic regimes, these countries could take over legal institutions which were invented and evaluated in other Western European countries. Moreover, they could choose from a number of legal approaches and employ those that proved most effective. Additionally to the comparison among national systems, supranational legal regimes also need to be taken into account. With regard to the harmonization process, which particularly refers to the integration process in Europe[10], comparative law occupies an important role because it works out and explains the benefits of supranational developments to the national legislator.[11]
Within the Judiciary, comparative law can be used as a complimentary source, if a problem has no solution in one’s own legal system (e.g. in the case of a lacuna). Then the judge might well use the solutions provided in other legal systems as guidelines for his own decision (e.g. the use of lie detectors in penal courts).[12] Particularly within supranational legal systems or at the level of supreme courts, judges enjoy the freedom to appeal to foreign law. Glenn cites that in Canadian common law, 15% to 29% of the literature cited by judges in courts refer to foreign legal sources and the same phenomenon – maybe less obvious though – also exists in civil law countries.[13]
Beyond these individual functions, comparative law also serves to make the study of law a real science. According to Zweigert and Kötz, the insular study of national legal solutions does not deserve the label ‘science’. Additionally comparative law, by elaborating different solutions from different legal systems and possibly creating new and better solutions, enriches the pool of available solutions for certain problems.[14]
While it seems difficult to design a blueprint on how to undertake comparative law research, posing a question or a working hypothesis is suggested as a basic way to start. Here again the basic functionality principle plays an important role. In order to find those institutions that serve the same function in different legal systems, it is necessary to keep in mind that the solutions to a certain problem may be found within the realm of law in one, but within a different system of social norms in another society. As for law itself, all those sources that affect or mould the living law in a particular system need to be regarded.
From experience it seems that many legal systems achieve similar solutions regarding the same problem although the approaches to these solutions might be different. This experience of sameness led Zweigert and Kötz to infer a praesumptio similitudinis that serves as a heuristic principle (i.e. it explains where to look for the solution to a problem, etc.) and a check for a researcher’s conclusions (i.e. if large differences are found, the work should be rechecked for the inclusion of all necessary sources of law, etc.).[15]
Even broader approaches than the functional approach include additional cultural and historical issues, as well as economical differences and draw heavier on the social context. Generally speaking, the incorporation of broader concepts, hence, seems to become the more important the larger the differences between different legal systems en entier are. When cultures differ significantly in their basic building principles, the understanding of law or a certain legal institution requires an understanding of the social practice of its legal community.
Thus, the conceptual framework of a legal system plays an important role and Hoecke describes the need to evaluate the set of ethical values generally accepted in a certain society as important features in understanding the background of its legal system. Indeed the ideological framework and interpretative context – or in other words the ‘worldview’ – is important to understand e.g. different understandings and applications of such universal concepts as human rights.[16] Solutions in different legal systems may well build on similar principles but are presented very differently. For the comparative researcher, however, the legal reasoning e.g. in a court decision hardly ever presents itself. More often the reader has to deal only with the presented conclusions.[17]
1.1.2. Legal Families
In order to improve the understanding of systematic differences among legal cultures, the concept of legal families originally separated the legal world in three groups, namely the Roman-Germanic, the common law, and the socialist groups. After the collapse of the communist systems in the 1990s, this third group has practically disappeared leaving behind only the two big groups of common law and civil law systems[18]. The lack of greater adjustment problems after the socialist legal system’s collapse and the currently occurring convergence between civil law and common law systems suggests that the legal family concept is not as over-lasting a concept as its advocates might have wanted us to believe.[19]
As for the convergence between common law and civil law systems, recent tendencies in the fields of legal sources and statutory interpretations – the two fields considered to show fundamental differences between the two systems – indicate more of a difference of degree than a qualitative difference. The traditional concept of differences in legal sources stressed the use of codified law in civil law systems and the use of judge-made law in common law systems. Recently however, judge-made law, in other words court decisions, particularly those of supreme courts, is gaining more importance in civil law countries. It also enjoys a strong authoritative, binding force which is not unlike the binding force in common law systems. At the same time the importance of statutory law increases rapidly in common law systems. Particularly in Ireland and the U.K. (as part of the EU) these new laws serve to intermediate the basic principles laid down in court rulings.
In the field of statutory interpretation, the methodological difference seemed to rest on the almost exclusive use of inductive interpretations in the common law system versus the emphasis laid on deductive thinking in the civil law systems. While the more subjective method of interpretation in the civil law systems searches for the “true will of the legislator” and extensively uses the travaux préperatoires, the method in common law systems generally builds on the search for the objective meaning of an act, including the historical context but credits words with the meaning everybody would read into them.[20] With the decision of the House of Lords in 1992 to accept the travaux préparatoires for interpreting statutes this gap has started to close, too.
Other writers, however, suggest that the differences between civil law and common law systems might not be dismissed that easily. Particularly in regards to the Judiciary in these two systems, Hondius rejects over-exaggerated claims of harmonization tendencies.[21] Major differences in the Judiciary still exist in the areas: (1) appointments of judges, (2) judicial organization, (3) law making function, (4) judiciary and legislature, (5) judges and academics, (6) style, (7) civil procedure, and (8) legal actors.
While there are certainly differences between the two systems in all these areas[22], there are also strong differences among the common law systems, e.g. the British and the American, themselves. Hondius rejects this argument and hints at the idea that the US system might have kept closer to the original common law version than the British one did.[23] But does not this argument itself offer a cornerstone for the argument of harmonization between common law and case law system?
Nobody today claims that there is no difference anymore, indeed van Hoecke and Warrington maintain that there still are differences – differences in degree, however.[24] Hondius argues that the British model lags behind the US model, implying that the US system has advanced further towards a more faithful representation of the common law system. Since he offers no convincing support for this thesis, the contrary might be no less plausible. While the first settlers bringing the common law to the US were occupied with a number of more practical concerns, e.g. building up a judiciary out of nothing, the UK had time to develop. Maybe it is after all not Britain but the US that lags behind and also will evolve gradually towards the more civil law oriented British system.
Fact is the comparative law’s particular role on the European level in regards to the creation of EU “legislation” and judgments of the European courts, referred to as field laboratory for comparative law.[25] The way the European Court of Human Rights often employs comparative law, however, neither satisfies comparative law nor human rights advocates. When using legal comparisons the court is inclined to observe what common features exist in different legal systems and how matters under question are regulated in the single member states. Communality, therefore, serves as a kind of legitimization and reduces the concept of human rights from a universal and majority-independent basis to the least common denominator among its member states.[26]
As long as the Convention States were from a relatively homogenous group of states, a common fundament could more readily be assumed without explanation but with the increasing heterogeneity among the Convention States, one must start to ask for that deeper level of unity that allows a comparison. The problematic way the court conducts its comparative studies, i.e. in form of a superficial and incomplete analysis, the lack of depth and particularly the lack of transparency, is only one side of the problem. Particularly the lack of clearly explained criteria for the comparisons leaves much of the court’s reasoning to guessing. The other side of the problem, however, is the inappropriate purpose comparative law serves in the court decisions. The court uses it as an objective justification for its conclusions, whereas comparative law and the interpretations drawn from the findings are necessarily subjective only.[27]
1.1.3. Legal Cultures
Since the differences between the two remaining legal families lose their qualitative character and change to a difference of degree, the concept of legal cultures or cultural families was introduced. As the name suggests, this concept attributes more importance to cultural variables and thus broadly groups the legal systems of the world into an African, an Asian, an Islamic and a Western legal culture, with some countries bridging two cultures (e.g. Russia). With regard to the two countries compared in this work, only the characteristics of the Western and the Asian legal culture shall be reviewed here. The difference between Western and other cultures are described by the extremes of two adjective pairs: rationalistic vs. irrational and individualistic vs. collectivistic. The individualistic character refers to the idea of autonomy and total liberty of the individual in and against society and the lack of individual subordination to the interests of society as a whole. Rational thinking implies the possibility to structure and master reality in an objective manner without the need to take recourse to religious or other transcendental elements. Kelsen’s theory for example is an extreme form of legal rationalism.
For Asian legal culture on the other hand, Confucian theory may have left a permanent impact best summarized in the respect each person owes to the natural order of reality.[28] Extremer forms deny any individual right and stress the everlasting duties the individuals bear towards society as well as the notion that individual rights mean disturbing the natural order and opposing society. Therefore, not court decisions but reconciliations are the preferred means of conflict settlement. Belonging to a community is more important than the individual positions or the rights of individuals.
Elements of Legal Culture
Although an exhaustive use of sociological research in order to describe and to understand a foreign culture would be most desirable, such sources are often not available or their use is (due to time constraints etc.) not economical. As substitution, Hoecke and Warrington suggest the use of the following basic elements to categorize legal cultures[29]:
a.) A concept of law: what is law? What is its relationship to other social norms?
b.) Valid legal sources: how is the hierarchy of legal sources? What role has non-legal texts?
c.) The methodology of law: have the adjudicators a freedom/ duty to interpret the law? What methods of interpretations are used?
d.) A theory of argumentation: are non-legal arguments employed?
e.) Theory of legitimization of the law: why is it binding? What if it conflicts with other norms?
f.) Common basic ideology: are problems considered legal problems? Is law perceived valid independently of its content?
Different legal systems, and indeed their corresponding societies, may differ in any of these points or any combination thereof, but if two systems differ in their concept of law and the basic ideology, they belong to different legal cultures. Within the basic element approach also the more traditional concept of legal families can be nicely accommodated as shown in the figure below (figure 1).
illustration not visible in this excerpt
Figure 1. The Relation Between Roman-Germanic Legal Systems and other Legal Systems within the Basic Elements Approach.
Clearly, differences in some basic elements are more important for the outcome than differences in others. Thus, a common ideology and common moral convictions constitute a deep level, while legal rules, legal concepts, and legal techniques constitute a surface level with the other elements on an intermediate level.[30]
As for the central object of comparison – the law – its meaning is by no means a priori clear. What is law? What law should be compared? Hart distinguished between primary rules (imposing or allowing some kind of behavior on contingent circumstances) and secondary rules (rules about primary rules, e.g. how to change primary rules, etc.), and maintained that together they form a legal system.[31] Is a “legal system” equal to law? If so and we adopt Hart’s theory, Hoecke and Warrington persuasively argue that also immoral systems or the legal systems of sports organizations must be characterized as law.[32] Their suggestion, therefore, is to incorporate the additional element of legal doctrine. Only a legal system accompanied by legal doctrine qualifies as law and consequently legal doctrine is both, important for comparative research and important as object of comparative research.
It gains importance for legal research because by using fictional concepts such as the rational legislator or the historical continuity, it describes and structures the legal reality created by a multitude of actors and sources (e.g. statutory law, court decisions, unwritten customary rules, etc.). Through legal doctrine, it is also easier to understand the ideological context of the law, which in turn allows us to understand the position of the concerned legal system relative to other legal systems.[33]
Only within broader concepts of law, the comparison between different legal cultures becomes possible and meaningfully interpretable. Indeed, superficial comparisons such as the comparison of legislation only results in distortions.
Unification processes like the one in Europe on the other side do not threaten comparative law as a discipline but rather provide new impetus and vitalization until a complete unification and harmonization on a global scale is achieved (even if possible, a prospect of the very distant future).[34]
Logically the narrower object of comparison (in this work: the immigration and particularly the deportation system), cannot be described as a purely legal problem. The starting point, therefore, is not the legal rule but the social reality within which immigration and deportation occurs and within which the corresponding rules are established and applied.
1.1.4. The Place of Comparative Law
While comparative law enjoys a fairly secure place in judicial traditions inside Europe and the occidental world in general, the concept of comparative law never thrived in other legal cultures.[35] After the primary aim of comparative law – the help it provided in drafting national laws – was achieved, the focus shifted to the continuing refinement of national laws, a better understanding of national laws and the construction of a global taxonomy of legal systems. These aims obviously emphasize the national level and although the final goal of constructing one common law for mankind seemed to persist on the distant horizon, the comparative law of today is still separated from other legal fields. Integration in other fields therefore is required, if comparative law wants to remain important as an academic science. Hand in hand with emphasizing national legal systems, the perspective of comparative law as a tool to create a universal legal system suffered. This in turn prevented comparative law from taking a more prominent place among legal sciences and in legal curricula.
The present as well as the latter half of the last century can be characterized as “globalization” in wide areas of society. Although the term globalization itself is rather vague, the increasing emergence of transnational and international issues in the world of law is undeniable. Comparative law as an academic science to describe the differences among legal systems hence “should occupy a central place in an environment in which transboundary issues have become routine”.[36] Surprisingly, however, it does not.
The globalization of law took the form of two disciplines – comparative law and international law. Both disciplines originally constituted windows into a vast world of “our” and “other’s” law and both disciplines were used to correct national laws and thus represented the two pillars of the cosmopolitan legal world.[37] In spite of their communalities, both disciplines were always perceived as independent from each other, featuring their own proper sources, methodologies and goals. Internationalization however also posed a considerable challenge for traditional national legal systems and its institutions and while comparative and international law sometimes in the past were perceived as intellectual luxuries or visionary exercises, the differential impact of internationalization favored international law and obscured the position of comparative law.
Several reasons for this development such as a lack of a sense of direction, a weak theoretical foundation, doubtful presumptions and premises and simply being out of date because its premises base on the reality of an age long left behind, have been proposed. Additionally the nature of globalization directs our attention to supranational constructions and the transference of powers from states to these structures – in short, matters of international law. Comparative law on the other hand has concentrated too narrowly on certain legal systems or families, traditionally civil law and the common law system in the Western hemisphere, and developed its vocabulary and legal categories along the lines of private law.[38] Disorientation also seems to result from the discrepancy between the comparative law researcher’s world view and the reality. Comparative law still views the legal world as juxtaposing national legal systems and disregards the growing interrelationship among them and the ever-growing set of international law.
It may all have started at the great event that brought comparative law into the international spotlight – the Paris Congress in 1900. There the aim of comparative law was defined in the droit commun legislatif as the comparison of private law codes and statutes of continental European countries with the purpose of legal harmonization and unification and, thus, reduced to a comparison of national legal systems. Particularly after 1945 transnational regimes started to emerge causing a growing interdependence of national regimes and a large-scale transnational legal practice, while the aim of comparative law by and large remained the same.[39]
Missing to adapt to the present situation adversely affected the discipline and the teaching of comparative law as well as the practical application of comparative law in an international setting. The need for knowledge of transnational legal systems is still great and many elements like its genesis, institutions and actors or the relationship between them is yet unexplored. Bermann therefore calls for redeploying comparative law in the internationalized context complimentary to international law in order to preserve the integrity of both disciplines.[40]
Traditional comparative law teaching presents different legal systems according to outdated categorizations and misses to give students an overall sense of orientation of the legal world beyond the classroom. In this legal world, national systems no longer stand side by side but continuously grow in interdependence to each other and to supranational legal systems. As for the practical implications, particularly the world of private law and here again particularly the area of global commerce (in which the fast and global exchange of information constitutes a powerful engine) develops much faster towards international standardization than other legal areas. In the area of trade law, transnational ‘codes’ not only supplement lacking national laws but are employed even as primary sources because every global partner has to be acquainted with these global standards anyway.[41]
Given the constant emphasize on the global character of problems and the deepening interdependence of the states, international law as a key to solve current issues thrives, while ongoing discussions about global governments that would need new forms of public law to defeat inherent problems like proper representation and transparency failed to create the necessary impulses for the comparative law discipline. International institutions, however, did not evolve independently from nation states and thus these institutions reflect the spirit of their creators. They are built on ideas, and comparative law constitutes a road to research these ideas, their origins and their mutual correlations.
Carozza gives two examples for the usage of comparative law in relation to international law:
a.) the comparative method can be used to point out differences between formal obligations of states (i.e. the obligations arising from concluding international treaties with other states) and the practical execution (how these obligations are incorporated in the legal reality of states)[42],
b.) e.g. in the human rights area, the universal human rights idea is grounded in human dignity. Human dignity, however, is an intangible concept and the comparison among states may serve as a concretization of this universal standard.[43] Similarly, international provisions include stipulations like “general principles of law recognized by civilized nations”.[44] These general principles are far from self-evident and comparative law is well suited to provide a meaningful answer.[45]
Reimann also stresses the vertical dimension in contrast to the horizontal dimension and reiterates the need for an analysis of the interplay of national and international levels. Only an analysis of these mutual dependencies and developments can create an understanding of how to coordinate the existing multitude of national and supranational regimes.[46] Bermann emphasizes in regards to the complexity of international relations which often turns into political tensions among different legal systems (not only between states but also between supranational systems and states) that one of the perceived weaknesses[47] of comparative law – its descriptive character – may well turn into a stronghold. Descriptions of differences can be conducted from a non-political position, therefore being acceptable for all parties and encouraging good relations.[48]
1.1.5. The Language of Comparative Law
In most cases of comparative research, the respective languages of the researched legal systems introduce another layer of complexity. Since there is no acknowledged common language of comparative law, the choice still depends largely on the researcher’s preferences although Hoecke discusses a number of interesting developments in the area of legal language. He draws a first important differentiation between a language for practical usage, e.g. for writing an essay about a legal topic, and a language on a conceptual basis.[49]
For practical usage, several languages offer different advantages. English for example is spoken all over the world, is used in many countries not only as mother tongue or first language but also taught as second language in even more countries. Thus, writing in English allows for a wide geographical reception. The far-spread use of English, however, also contains one of its drawbacks. Due to different geographical and cultural backgrounds identical words obtained different meanings in different areas of the world.
Another language would be Latin. Given the complexity of Latin, this choice might be surprising but particularly in law the Roman legal system provides something like a common heritage or at least a mutual background not only to continental European legal systems but also to the case law systems. Roman concepts such as the division in persona, res, or actio oozed through the sands of centennial development into almost all modern legal systems of the Western hemisphere. Conceptual clarity thus favors the idea of using Latin, its difficult structure however constitutes a persuasive counterargument.
Finally, Hoecke suggests Esperanto precisely because of its simplified grammar. Simple as the grammar is, though, the lack of a cultural context makes it difficult for Esperanto to progress beyond some academic circles. Even French for its compromise between pragmatism and conceptualism and German for its theoretical clarity come into play for a common practical language. As the number of possible candidates suggests, though, progress in that area is slow, if coming at all.
The language on a conceptual basis should provide expressions and methods to express legal concepts in a logical way, understandable through an understanding of the language’s own elements. The use of basic elements (much simpler than the legal concepts themselves) like bi-polar characteristics may serve to illuminate hidden relationships. Like there is more than one candidate for a common practical legal language, there are also different candidates for a legal meta-language. One approach was taken by Hohfeld and it offers a first step into exploring the ‘deep structure’ of legal concepts according to their relations to other concepts and the logical relations among the different concepts. Another approach differentiates between descriptive and normative concepts depending on the presence of rules in the respective concepts.[50] Concepts like persona, res or actio describe a factual situation without containing rules, while concepts like dominium, obligation, or imperium contain rules, too. A third class of concepts are quasi-normative concepts like damage, fault, and interest.[51]
1.1.6. The Method of Comparative Public Law
Regardless of their categorization, the number of different legal systems and the different aims of comparative law suggest that there is not only one correct comparative law method. Zweigert and Kötz go as far as claiming that the whole method of comparative law is still in the experimental phase leaving it to a process of trial and error to find the correct method.[52] A basic suggestion for structuring the research explains that comparisons during the report of the legal facts are not only allowed but natural. However, before the comparison proper starts, the report section should be concluded. This latter section – the comparison proper – is the more difficult part of the research. Pointing out differences and similarities is only the first step. It is a different kettle of fish to discuss the researched solutions from the viewpoint of the concerning foreign legal system. If differences arise, it is most demanding to ask for their causes. In general the researcher should build a system of concepts large enough to embrace the quite heterogeneous legal institutions which are functionally comparable.[53] These concepts must identify the demands that a particular problem in real life poses and thus takes the quest of comparative law full circle back again to the idea of a universal legal science.
Rather a number of methods may be distinguished along the following opposites:
a.) internal (within one state or legal family) vs. external
b.) national (comparing legal systems of states) vs. international (search for quasi-universal legal components)
c.) comparison in the strict sense (comparing legal elements) vs. broader comparisons (taking other factors into account)
d.) horizontal (between legal systems on the same normative hierarchy) vs. vertical
e.) macrocomparison (includes political system) vs. microcomparison (certain legal institutions).[54]
Additionally two fundamental rules[55] for the use of the comparative method independent of comparing private or public law, state that (1) the object of the comparison must be studied independently of its relations with other institutions or legal rules of that national law system and that (2) the object of the comparison then must be reintegrated in its proper surrounding. Following these two rules will make it necessary to determine the relationship between the object of research and other phenomena in that same system and enable the researcher to uncover the relationship between the object of research and its more complete framework. In that sense the social context is of great importance but the first and the second steps need to be kept separate.
Contrary to the functional comparison, this systematic comparison considers a legal phenomenon within its system which requires first an isolation of the phenomenon and its reintegration afterwards. The success of the systematic comparison certainly rests on the proper identification and definition of the object of study.
1.1.7. Value Judgment (Werturteil)
From its very beginnings, the comparison of different laws or legal systems aimed at finding the so-called ‘better’ law with all its implications about value judgments. Comparative law researchers – after elaborating the differences contained in legislation, court judgments and academic writings– must consider whether they should be content with depicting these differences or whether a value judgment on the differences should be added. The opinions on this question range from strictly not over may be included but is no essential part to should be included in any comparative work. While Ebert attests value judgments a meaningful role only if the solutions have similar effects and the evaluation of interests rests on the same premises, Kokkini-Iatridou maintains that a critical evaluation should be an essential part except when researching the tools for comparative law itself.[56] Zweigert and Kötz maintain that an explicit, critical evaluation should be part of the final considerations in the research asking which solution is the best and, if possible or necessary, ask what an alternative, not yet existing, best solution would be.[57]
Methodologically, of course, the move from describing differences in terms of same, similar or different to describing them in terms of better or worse represents the move from a nominal scale to an (at least) ordinal scale. This requires criteria that allot some form of value beyond same/not same classifications to the different solutions. The meaningfulness of value judgments, therefore, will rest on the rationale behind these criteria, their elaboration and their clear explanation. These evaluation criteria form the tertia valutationis[58] and it seems wise to clearly separate the evaluation from the pure description. It is not necessary that the evaluation forms the end of the work, but the reader must be able to easily discern between depiction and evaluation. The more ambiguous these criteria are the more important is a thorough explanation. While a criterion like effectiveness is relatively easy to assess, criteria like justice, life in dignity – in other words criteria that are heavily value-loaded – require an extra effort in explanation.
Although the appropriate use of criteria might lift the evaluation above a subjective level, absolute objectivity probably remains beyond the reach of most works. The work on legal institutions of different legal systems or cultures, the differences in language and the need for translation, not even mentioning the effects of one’s own doctrinal views, imply relativity. Some of these effects cannot be avoided, but particularly in the evaluation part it is necessary to remain conscious about their existence.[59]
Hence, statements that restrict value judgments to legal systems that are not too different from each other not only seem too strict[60] but also miss the critical point. If there is a criterion that fulfills the necessary preconditions (e.g. efficiency, costs, etc.), a value judgment in regards to this criterion is meaningful no matter how different the surrounding social systems are. Only if the criterion itself is obscured by social norms (i.e. a society that for some reasons would prefer inefficient solutions), the criterion becomes meaningless. In other words, if the uncovered differences in solutions depend on completely different social or cultural values, value judgments lose meaningfulness.[61]
Vice versa, however, it cannot be the aim of comparative law research to work out a better solution in any instance. Instead of searching for the better solution for one legal system or a supreme solution fitting all compared systems, in some cases the critical evaluation of each solution within its own legal and social framework might yield a more satisfying result.
1.1.8. Conclusions
In this work I want to compare the immigration control systems of Japan and Austria with particular focus on the deportation of aliens. What conclusions can we draw from the methodological outline provided above?
The first important conclusion concerns the topic itself. As we have learned from the functionality principle, only things that fulfill the same purpose can be compared meaningfully between different systems. In order to find out, what things fulfill the same purpose it is important not to ask questions in legal terms. For this research, thus, the question is not e.g. how is the deportation system organized in Japan? Such a question would not only presume the (likely) existence of a deportation system but also forecloses other things like a deportation order, deportation detention etc. related to a deportation system in one’s own conception. Rather the respective question must be: how can authorities terminate the stay of unwelcome aliens? Rephrasing the first question resulted in a question more independent from specific legal systems although it still contains legal connotations (e.g. in the term ‘alien’). Since many legal terms are also used in everyday conversation and vice versa, stating questions in purely neutral terms is probably impossible.
An additional perspective is opened by supplementing the qualitative comparison with a quantitative approach. In this quantitative approach legal terms and relations are expressed in numbers and numerical relations. Thus, it is possible to retreat even further from the immediate legal object – deportation orders – and evaluate the differences between the Japanese and Austrian deportation system from a more holistic perspective. Since this approach has been employed before in the comparison of the immigration systems of several European countries, a ready-made method is available and can be employed to the present comparison with only few modifications. The introduction in the methodology of the quantitative approach will be provided before using it for the comparison between the Austrian and the Japanese immigration system.
The necessity to formulate research questions as independent from legal concepts as possible also leads to the second methodological conclusion concerning the necessary background. As mentioned several times, the degree of difference between the legal systems under comparison affects the choice of background information incorporated in the comparison. If the two cultures are strongly related and overlap in many areas, the comparison can actually focus on very specific legal instruments and their characteristics, neglecting social and other background information. If two systems differ greatly, however, a minimum of socio-historical and organizational background information is required. Otherwise discussing e.g. deportation measures would happen in some kind of vacuum without any hint to broader influences. For example, knowing nothing about the long period of isolation and the sudden opening of the Japanese society in its historical development makes it difficult to understand today’s image of aliens. Although such background information needs to be provided, clearly it can only take the form of an introductory note.
Zooming in on the comparative work, it is clear that providing socio-historical and organizational information can provide only the external framework in which the national legal systems exist. To draw an accurate picture of these legal systems – and this is the third conclusion – we obviously need to incorporate more than statutory rules. Although both countries – Japan and Austria – are democratic states operating under the rule of law, evaluating legislation alone does not suffice to answer many detailed questions about immigration control. Besides the law, the Administration may stipulate rules of general applicability, the practical employment may differ from these rules and/ or the law, court rulings may create more than just individually binding judgments and doctrine may systemize this whole conundrum and thus exercise its own influence on the system. Regarding all these factors enables us not only to draw a more accurate picture of the available administrative measures and practices but also to understand and evaluate these measures within their own framework.
A fourth issue concerns the question of language. As discussed above, comparative research should find one common practical language as well as a common meta-language in the long run. Neither is accomplished so far. As far as the language used in this work is concerned, questions might arise why I selected English. After all, Austria’s official language is German and Japan’s official language obviously is Japanese. The main argument for English is the range of the potential audience. Both German and particularly Japanese are used only in very limited geographical areas. During my research, I found preciously little legal literature about immigration and deportation published in languages other than the respective official languages. Since I do not exclusively focus on the deportation of aliens but also include a fairly comprehensive part on the immigration control system in the two respective countries, I believe that this work should be accessible to as many readers as possible. Therefore, I chose English as the working language. A glossary for the most common, important terms used in the Austrian and Japanese literature should provide opportunities for cross-reference.
The fifth conclusion reached from the methodological outline is the need to incorporate not only horizontal but also vertical relationships. Comparative law as a discipline needs to include international regimes into its research as far as applicable. With respect to Japan and Austria, the degree of vertical interrelationships with international law is very different. Although Japan is a very active member of the international community (e.g. the UN’s most generous financial supporter), the ratification of treaties and particularly the subjection to international arbitration meet enduring resistance. Austria as a member of the European Union, the Schengen system and the European Convention of Human Rights on the other side is engaged in a variety of treaty-based international relationships and regimes. Their particular influence on the deportation of aliens, thus, should be included in this work.
A final conclusion concerns the evaluation of differences and the idea of better solutions. As discussed above, there is no need for researchers to restrict themselves from voicing their opinions about their research topics. On the other hand, one always has to keep in mind that things may elude evaluative comparisons because of differences in the cultural background factors. Without regard to such difficulties, it seems necessary to consider three aspects of an evaluation. First, when interpreting or discussing differences it must be clearly visible for the reader that the researcher voices his own opinion. Second, evaluations should be conducted in reference to a criterion. Third, the major concepts, tools or findings should also be discussed and evaluated within their own system, besides subjecting them to a comparison with similar concepts from the other system.
1.2. Socio-Historical Background
While it is impossible to give a full account on the history of Japan and Austria, this short chapter introduces their rich historical backgrounds. Instead of listing historical facts in a table, a narrative style – adequate for an introductory chapter – is employed here. The interested reader is referred to books enlisted in the reference list for details.
1.2.1. Japan
Japan’s geographical position as an island shaped her historical relationships with other peoples. Despite its important role for the explanation of Japan’s history, this insular position developed fairly recently (talking in historical time frames). From archeological studies we know that e.g. mammoths entered the original land mass of Japan from the North and roamed within today’s Hokkaido. Other species like the giant deer, horse and bison moved into today’s Honshu area and since scientists know in what times they existed, it is fairly save to conclude that Japan was still connected to continent Asia at the latest Pleistocene age. The completely insular condition is probably due to the later rise of sea levels occurring sometime between 18,000 and 12,000 years ago.[62]
The first sure signs of human craftsmanship (e.g. hand axes) were found in excavations dating back some 50,000 to 35,000 years[63] (e.g. the Gongenyama site) and were left there by the first immigrants so to speak. Physiological studies suggest a close relationship of the Japanese people to the Chinese and Koreans but view them as distinguishable while outdated theories have discussed the origin of the Japanese people as a mixture of Northern (Caucasian) tribes such as the Ainu with immigrants from Korea (Mongoloids).[64]
These first nomadic tribes developed a predominantly sedentary pattern of residence around 10,000 years ago which lasted for more than 7,000 years with only minor changes and is called the Jomon period. People lived on a hunting-gathering-fishing-shell fishing economy based on the rich natural resources of the land and fundamental developments such as the foundations of the Japanese language occurred during this period. From the three major Asian language stocks – the Altaic, Sinitic and Malao-Polynesian languages – the Japanese, regardless of its use of Chinese letters and the number of Chinese loanwords, is not part of the Sinitic group but rather seems to share a common and rather unique origin with the Korean language. Glottochronicological studies suggest that the Japanese and Korean language split apart as recently as 5,000 to 6,000 years ago.[65] Thus, Japanese is predominantly believed to belong to the Altaic language stock sharing similarities with the Korean language but nevertheless suggesting a long period of separation and deep roots in the land.[66]
With the arrival of new knowledge and machinery such as wet-rice agriculture based on paddy field cultivation, loom weaving, iron tools, spears and mirrors of bronze from the continent the Jomon period rapidly changed in the so-called Yayoi period. Former scientists believed that the import of machinery was a byproduct of a massive immigration of people from the continent. The idea was that these new immigrants formed the core of today’s Japanese people, while the Jomon people (of supposedly Caucasian origin) retreated to the North and formed today’s Ainu culture. Later interpretations however put the number of immigrants into respective and suggest that these immigrants blended into the existing Jomon culture and altered its foundations due to their superior knowledge in many fields. The wet-rice cultivation then also became the cornerstone for population growth and rise in societal complexity that was described in the most important early source of Japan’s history – the Record of Wei (A.D. 221-265) – as the existence of many populous little “countries”.[67]
With the Record of Wei and other foreign references to the following Kofun period (A.D. 300 to 700) the era of prehistory changes into a protohistorical era with scarce written references – a feudal society with first, short-lived conquests into the Korean peninsula and the development of the Yamato empire. From a societal point of view, the “import” not only of new knowledge and machinery but of artisans is particularly interesting. Not only individuals skilled in pottery and engineering but whole guilds or corporations moved from the respectively more advanced Korea into Japan to satisfy the needs of the developing elite. The social position of these new immigrants within the Japanese feudal society seems noteworthy since the leading artisans and guild members (together with Japanese bureaucrats) were able to form a kind of petty aristocracy enjoying fairly high status.[68]
The Yamato rule also brought a first form of centralized unity with strong regional leaders particularly at the periphery and brought several centuries of stable rule. However, movements to replace the central rule (from the tenth century on) and local power struggles (intensifying from the twelfth century on) affected the stability of the central rule. This central rule was in the hands of the Fujiwara family which was divided into different houses, though. The resulting power struggles within the aristocracy ended with Minamoto’s victory in the twelfth century and the creation of the shogun as a permanent post. From this time on a period of warrior rule that lasted until 1868 started although the leading families were replaced numerous times. In the thirteenth century the Emperor used the growing discontent among the warriors following the attempt of Mongol overlords of China to conquer Japan in 1274 and 1281 and he ended the Kamakura shogunate (a direct follower of Minamoto).[69]
Further power struggles and a period of military rivalry in the fourteenth century left an imperial court suffering from an ever diminishing influence, the increase of piracy preying on the Korean and Chinese civilizations and a succession dispute in the middle of the fifteenth century. This resulted in an almost complete disintegration of political order. In the sixteenth century the piracy raids on China increased and ships filled with thousands of warriors reached Nanking. China then closed her ports to Japanese vessels. Both the imperial court and the shogunate found themselves powerless while regional leaders expanded their influence. Trade with the outside world used trade stations throughout Asia and resulted in contact with European forces like the Portuguese, Spanish, Dutch and English. In 1543 the first Portuguese traders landed in Kyushu and opened a century of Iberian contact[70] that included not only trade but also missionaries and new weaponry such as firearms.
The introduction of new knowledge again caused a spur of economical growth and improved political and administrative efficiency, although the power still belonged to regional leaders who maintained a Kyoto orientation, though. Legitimization for their regional power was still seen as a result from ties with the imperial court – the ultimate, though powerless, instance.[71] In this system of matured feudal rule with endemic fighting and ever larger armies, provincial overlords perceived themselves as candidates for national government and resisted the weak Ashikaga shogunate among others with the issue of their own legal codes.
The three rulers Nobunaga, Hideyoshi, and Tokugawa succeeded in bringing this chaotic situation to an end and in uniting the regional entities. With the fall of the Northeast bastion of Odawara in 1590 the land was mostly unified and in 1592 an army of 158,000 warriors tried to conquer the Korean peninsula and China with brutal force. Only the death of Hideyoshi in 1598 and Tokugawa’s closer focus on internal affairs ended this conquest attempt. With the victories at Seigahara (1600) and Osaka (1615) religious influence was rejected and a fairly peaceful state established.
This Tokugawa state saw the successive rise of 15 shoguns between 1603 and 1867 and a neutralization of the imperial court’s influence on politics and state affairs. As for foreign relations the typical image of an all-closed state seems quite inaccurate and should be replaced by an image of Japan focusing on internal affairs and relations with its immediate neighbors. While the trade with European nations and China was conducted almost exclusively at Chinese trading posts throughout the region (silver and copper were the major export and silk and weaponry the major import goods for Japan) relations with the Korean neighbor flourished.[72] The trade between Japan and Korea re-opened in 1609 (although restricted to the Korean port Pusan) and after 1655 twelve missions were sent from Korea to Japan’s capital Edo and received full honors and hospitality restoring at least partly the feeling of good neighborhood. Meanwhile other foreigners were rather unwelcome in Japan and only at Nagasaki respective foreigners resided in one outpost for Dutch/Portuguese (Deshima) and another one for the Chinese (Tōjin Yoshiki).
After the issue of a series of five restricting decrees in the 1630s that forbad Japanese to go overseas and exiled the Portuguese, the Dutch at Deshima were the only European trade partners left and with decreasing economical power of the shogunate also the interest in missions from Korea faded. With time, thus, the Tokugawa state changed; the population tripled between the 17th and the 19th century, small-scaled protests increased and with the discovery of the changed political power situation in Europe (the Napoleon wars, the loss of power by the Dutch and the respective increase in power of the English etc.) fear of losing sovereignty and becoming a colony of the West increased among Japanese rulers. In 1825 an order was issued to expel all foreigners and shoot on sight when they should try to return to Japan what was also applied to shipwrecked foreigners. Such incidents (and the wish for a supply station on the way to China) led the Americans to employ first the Morrison and later the Perry mission. The later was credited with opening Japan to the West. Impressed by the Western power, the Japanese rulers send a first fully authorized voyage abroad to the US and Europe (1860) which returned with the awareness that industrialization was the key factor for catching up with Western powers.
More Japanese went to study abroad and returned with priceless knowledge and an eagerness to position Japan as an equal among the Western nations. In 1867 domain officials and court nobles put the shogunate to an end and the Meiji restoration brought the imperial court back to power in 1868.[73] Formally the rights of sovereignty had remained in the hands of the emperor, who appointed the shogun, since the foundation of the empire, which explains the relative ease in dismissing the shogunate system.[74] In the formative years of the Meiji state besides missions to the West, industrialization at home and necessary structural changes, the leading bureaucrats were once again pondering a war against Korea but other problems had to be tackled first.
In contrast to European nations, religion did not provide a unifying cause and therefore only the imperial court and the emperor himself could serve as symbols for the nation. After the founding of political parties, bureaucrats were afraid of public unrest and republican movements that would blame the emperor for some political mistake and challenge his legitimacy. A cabinet system therefore was introduced to remove the emperor from immediate political accountability and the work on a constitution started.
The Meiji Constitution was promulgated on Feb. 11th, 1889, and first elections with franchise limited to male citizens of a certain minimum tax level were held in July 1890. Preceding and accompanying the making of the Constitution was a reorientation of the Japanese politics in form of a “part with Asia” spirit which identified Asia with a backward corner of the world and the West as the civilized nations Japan wanted to join. Full political equality and a revision of the unequal treaties forced on Japan in the mid 19th century were achieved only towards the end of the Meiji era (extraterritorial jurisdiction ended in 1899, unilateral tariff conventions only in 1911[75]). Adhering to the international law of that time became a strong motive for the Japanese foreign policy.[76]
In foreign relations first the Sino-Japanese war over the Korean cause ended with the Chinese defeat including heavy territorial concessions and reparations and later also the conflict with Russia in the North could be settled satisfactorily. Japan forced an unequal treaty on Korea and, after defeating the Russians, Korea was transformed in a Japanese Protectorate (1905) and, following a time of guerilla movements and Japanese countermeasures, annexed in 1910.
After the end of the Meiji era in 1912, the Taishō era nominally lasted until 1926 but because of the emperor’s mental problems the later Shōwa emperor succeeded to power already in 1922. World War I, the Tokyo earthquake in 1923, fear of communist radicalism and the change to universal suffrage in 1925 (limited to men over 25 not receiving welfare support) marked the first two decades after the end of the Meiji era. In foreign relations Japan finally gained equality and a permanent seat on the Council of the League of Nations; Taiwan and the South Manchuria were added to the annexed territory and many saw in Japan a role model for the modernization of China. This favorable image in Asia received lasting damage, however, with the oppression of the people movements from March 1st and May 4th in Korea and China respectively.[77] In Korea, as a reaction to the peaceful demonstration more than 7,000 people were killed and over 145,000 wounded. Relations with the US became more difficult. The US immigration act of 1924 practically banned Japanese from legal immigration and acquisition of US citizenship and damaged the bilateral relationship heavily, while the Japanese economy – due to government spending and clever administrative guidance – saw a 40% increase in GNP during WWI which was followed by postwar depression, though.
After the assassination of the Japanese prime minister Hamaguchi in the so-called 1931 March incident, a bomb explosion in the South Manchurian, which left the impression of Chinese military involvement, created an excuse for the Japanese army stationed in the Manchuria to occupy further territory in clear violation of the Kellogg-Briand pact. Consequently Japan left the League of Nations and started to resettle Japanese nationals from Japan to the occupied Manchuria after installing an emperor there. Shortly afterwards, not one month after Konoe became Japan’s prime minister, a small incident close to Peking triggered military reactions on both sides and the quick victories for Japan were followed by war crimes (up to 350,000 killings in Nanking alone). Japan’s international isolation and dependence on resources (more and more of which became tied up in the war with China) became highlighted again and Japan joined the axis powers as a mean to deter Great Britain and the US from attacking.
Japanese military moves in Southeast Asia to secure resources and US retaliations such as an almost complete Western embargo[78] on trade with Japan (including freezing Japanese assets abroad) and help for China obstructed any diplomatic solution and the Japanese understood the ill-advised move of the US pacific fleet to Hawaii as a welcome target. After the nuclear bomb drops on Japan and her unconditional surrender, MacArthur was chosen as Supreme Commander of the Allied Powers and head of the occupation in Japan. Although the Japanese government remained in place, it had to answer to the General Headquarters (GHQ) and quickly the GHQ started to abolish all military establishments and introduced other changes, while (with an eye to the emperor’s role in the occupation) they refrained from abolishing the imperial system or putting the emperor up for trial.
In the years after WWII – the so-called Yoshida years – Japan had to deal with critical shortages of food and supply, occupation costs of about 1/3 of its annual budget, inflation, a GNP half of the 1934 level, land reforms, breaking up its giant firms (zaibatsu) and drafting and introducing a new Constitution in 1947. The San Francisco treaty (April 28th, 1952) finally returned full national sovereignty to Japan and Japan renounced all claims to Korea, Taiwan and other territories. The following reconstruction efforts focused on economical reconstruction which resulted in low defense budgets. The US helped by the transferal of technology to Japan, by introducing Japan to a number of international trade organizations and by opening the US market for Japanese goods. This has made Japan the current second-largest economical power behind the US despite an almost 10 year long depression cycle in the 1990s. Only at the beginning of the 21st century, Japan again deployed military forces in other countries namely Afghanistan and Iraq under international cooperation agreements.
1.2.2. Austria
Unlike in Japan, the geological make-up of today’s Austria remained largely unchanged over the last 2 million years after the main formation years of the Alps ended (although minor changes are still measurable today).
The earliest site with artifacts which date back some 730,000 years[79] is the Isernia La Pineta close to Rome. It indicates that pioneer nomadic tribes moved from the Sub-Sahara area into the European continent between about 1 million and 700,000 years ago.[80] As for Central Europe a jaw bone found in a cave close to the German city Heidelberg was dated back to 600,000 years B.C. and constitutes the earliest validated archeological finding in Central Europe (referred to as the homo Heidelbergensis). Much later (about 40,000 years ago) the Neanderthal population was replaced by populations biologically similar to us and radical climatic changes offered these new immigrants challenging living conditions. Only with the recess of the glaciers (about 10,000 years ago) hunter-gatherer societies began to transform into sedentary societies (about 5,000 years ago) and transport of goods and people between locations often employed rivers leaving behind remarkable archeological sites like the Lepenski Vir site in the Danube valley.
Since about 5,000 BC agriculture was the prevailing economy on Austrian territory and with trading paths reaching beyond the Alps regular contact with technologically more advanced people at the Mediterranean Sea was maintained.[81] The constant movement of people all over Europe dismisses any tribal or racial denomination of those early settlers in Austria as pointless. Instead, people are often categorized according to their prevalent form of workmanship. Similarly the early development of language and its differentiation remain largely in the dark.
The use of iron and the related search for ore in the first millennium BC brought the ancient mining sites in the center of Austria into the spotlight of more advanced cultures. Trade intensified (major imports were wine, oil, etc.) and the corresponding population growth is well documented; the barter of goods changed into monetary transactions and security issues along the trade routes gained importance (Hallstatt era for a co-existence of loosely connected regional power domains).
From the fifth century BC, Celtic tribes had moved through and after being blocked from invading Italy by the Romans they started to settle down in the Alps.[82] The proto-historical time started with Roman writers referring to these Celtic settlements. Around the same time thirteen leading tribes founded the Regnum Noricum – a monarchy without strict dynastic character.
With the Roman occupation in the last century BC the Celtic kingdom was annexed[83] and the Romans occupied all territory up to the Danube river which served as a continuing border (limes) against other invaders for the next centuries.
For the first 150 years the integration in the Roman Empire created a peaceful and prospering environment. At the end of the first century AD, however, fighting at the limes to avert intruders intensified. Still very different tribes co-existed relatively harmoniously with each other[84] and they all received Roman citizenship in 212 AD. Christianity began to make a slow entrance during the first century but was boosted later with the decision of Theodosius I to install Christianity as the only state religion for the Roman Empire to promote unifying tendencies (392 AD). In the Eastern parts Christianity was then endangered by Slavic occupation, while in the West (Tyrol) the construction of churches throughout the seventh and eighth century is well documented. Only in the sixth century the influence of the Roman Empire in Austria ended and the migration of peoples brought constant turmoil.
A number of factors like cultural differences among the very different tribes that had settled down in Austrian territory or the growing influence of the Church contributed to a patchwork of regional power spheres, some of which with lasting effect (e.g. the archbishopric in Salzburg). In the South a Slavic duchy (Karantanien) evolved in the seventh century and after its duke asked the Bavarians for help against Eastern intruders (8th century), the idea of a common ‘state’ with Bavaria was thwarted only through the occupation of all Bavaria and Karantanien by Karl the Great in 788 AD. Austria’s present territory was largely part of a defense zone for the Franc kingdom. Different regional leaders and dynasties (e.g. the Babenberger) formed separate territories – the precursors for the individual Länder – with secular or clerical leaders. Fiefs and the feudal system evolved.
In 996 the first known document referring to a uniform territory ‘ostarrichi’ stands at the origin of a unification of the before-mentioned Länder in a single duchy Austria in the twelfth century (priviligium minus in 1156).
The 13th century saw the separation of this territory because the reigning Babenberg dynasty ended without successor and heir, and the later award of the territory to the Habsburg dynasty.[85] In 1359 the ruler Rudolf IV by way of imitation of the privilegium minus fabricated the privilegium maius which contained rights that dated back to the Roman Empire such as tax exemption, but also the ascension of the duchy to an arch-duchy and the indivisibility of the territory.[86] The 14th century however also was the time of the Black Death’s first appearance in Europe. The toll of lives it took was directly related to the situation of the then 65 million people who inhabited Western Europe in a situation of strained balance with their nutritional fundaments. Most people lived as peasants in rather small villages growing just enough to satisfy their tax load and having enough to survive. Malnutrition and short supplies kept reoccurring annually and since no farming techniques to increase fertility were found, balance could only result from a reduction in population size.[87] At its first appearance the Black Death killed as much as one third of the population.
In the 15th century the Habsburg ruler became the German king and the only bearer of the imperial crown, the priviligium maius was confirmed and the territory enlarged (Bohemia, Hungary, etc.), before in the 16th century a bureaucratic administration was installed that lasted for the next centuries. Even the detrimental Thirty Years War could not substantially endanger Austria’s predominance in Central Europe although it (and the consequent plagues) caused the death of approximately one third of the population in Central Europe (German population plunged from 21 million to 13 million). The Habsburg dynasty became the casa d’Austria – the House Austria – and the major world power incorporating the Netherlands, parts of Burgundy, Spain and overseas territories in the Americas, as well as Bohemia, Hungary and extensive lands in Italy.
Danger however rose in the East where the Ottoman (today’s Turkey) invaded the Balkan and threatened first Hungary and then Austria. After the foundation of the Islam in the seventh century, its unifying tendencies (e.g. the notion that all Muslims are brothers and sisters) caused a quick spread over Syria, Persia and Egypt. With seizing control over Jerusalem, Christianity’s gravity center shifted to Rome.[88] The first invasions into Europe started already in the eighth century and focused on the Iberian Peninsula before the Muslims also occupied parts of South-East Europe. When centuries later the Muslims were driven out of Spain, but were able to conquer Constantinople, the Muslim threat finally shifted from the West to the Balkan and twice (in 1529 and 1683) the Ottoman besieged Vienna (in 1683 the Ottoman army counted more than 300,000 heads) but never occupied it. After the second siege failed, the Ottoman threat was largely terminated and the newly won self-confidence inspired the use of the Baroque building style of religious piety and worldly grandeur for the construction of many famous sites such as Schönbrunn to rival Versailles, the Karlskirche etc.
After battles for the succession in Austria, Maria Theresia’s husband was crowned as emperor in 1745 but left the imperial rule to his wife and further territorial changes included the loss of Italian territory on the one hand and the acquisition of Polish territory on the other hand. With Napoleon’s imperial aspirations the face of the Habsburg Empire changed again. Salzburg, so far territory of the Church, was incorporated in Austria and after defeating Napoleon the size of the empire increased yet again, while Zeitgeist changed from French revolutionary ideas to the spirit of the Biedermeier period focusing on simple private lives of the middle class within comfortable furniture and buildings.
Among other reforms, the Austrian Civil Code (still valid today) entered into force in 1812 but nonetheless the reforms proved to be insufficient to absorb the revolutionary power bottled up in the people that erupted in the mid 19th century.
Starting with anti-Austrian demonstrations in Milan (a part of Austria at that time) and revolutionary movements in France 1848 that overthrew the French king, liberal-democratic movements spilled over from the German lands into the traditional and absolute monarchy in Austria.
On March 13th, 1848, revolutionary forces compiled of intellectuals, whose petitions for a constitution and constitutional rights had been rejected earlier, and industrial workers started street fights in Vienna. As a first consequence the Emperor dismissed his cabinet chancellor Metternich (the architect of the European state organization after the Napoleon wars), abolished censorship and invoked a constitutional convention. The work on constitutional questions quickly revealed the many unsolved questions underlying Habsburg Austria. Particularly her multi-cultural, multi-ethnical composition with regional powers like Hungary, Bohemia and the Italian Lombardy-Venetia challenged unifying tendencies.
Without waiting for a final constitutional draft of the convention the Emperor Ferdinand I decided on an internal draft very much like the Belgium Constitution which should enter into force for all Habsburg territory except Hungary and the Lombardy-Venetia. Additionally a bill of rights was declared but suffrage was still tied to tax payments.
Unsatisfied revolutionary forces succeeded in altering some oft the Constitution’s main “flaws” such as the tax-depending suffrage but unifying forces inside the Empire remained fragile. In the same year the young Franz Josef I succeeded to the throne[89] and a new Constitution was drafted focusing on a constitutional monarchy with two parliamentary chambers, separation of powers and an independent judiciary. A right to education was established among a renewed bill of rights, the Reichsgericht – the direct precursor of the later Constitutional Court – was installed in 1849, and the Supreme Court in 1850.
In relation to other nations, the Habsburg Empire became increasingly isolated – the Prussian Empire in the North dominated the German affiliation, Russia had been offended and alienated following misguided strategic decisions and Italy was moving towards unification with ever faster speed and the Habsburg Empire as last obstacle.
When the Germans united in the Deutsche Reich in 1871, the Habsburg not only lost its influence on German territory but due to an alliance between Bismarck, the strategic mastermind of the late 19th century, and Italian forces, they also lost its Italian territories and had to focus on the East. There, a dualistic theory of Austria-Hungary as a double monarchy (K.u.K. Monarchy) prevailed and unity between these two states based only on a common ruler (the Habsburg Emperor), common foreign affairs, common army and economical unity.
Towards the end of the 19th century the rivalry between Austria and the German empire decreased and cooperation became more important than challenging each other’s influence in the German lands (an alliance with Germany and later Italy was formed). Thus, Austria was charged with occupying the Slavic territories, in particular large parts of the later Yugoslavia. It was there in 1914, June 28th, that the assassination of the Austrian imperial heir by separatists triggered the First World War because of the sophisticated alliance policy of Bismarck (intended to ensure peace).
At the end of the war, Emperor Karl renounced his role as emperor and the democratic Republic German-Austria was founded (1918). Political representatives viewed Austria – the German rest that was left over after WWI – as part of a later Great-Germany, crediting the small Republic with little chance to survive.[90] A constitutional convention was held but the St. Germain peace treaty eroded any amiable tendencies towards other nations than Germany, which was perceived as fellow-sufferer. Austria was charged with heavy reparations, limitations of its sovereignty, loss of territory and a prohibition of re-union with Germany.
In October 1920 a constitutional draft by Kelsen and others which was relatively free of ideological content was approved. A federal democratic Republic with strong powers for the historical Länder was constituted. During the next decade the clash between the two big parties – conservatives and socialists – intensified and a gap inside the society opened. Each party erected paramilitary units and after demonstrations and fighting in 1927 a constitutional reform strengthened the presidential powers (1929) who forthwith could declare Notverordnungen (emergency decrees) in order to substitute laws in times of crises.
Economical and financial problems ensued and the approval for a party-based democratic system vanished (as in other nations in Europe); violence and revolts occurred on a regular basis. Hence, the government seized an opportunity provided by the resignation of all three parliament presidents and postulated the self-termination of the parliament. The government under Chancellor Dolfuß assumed control and became increasingly aware of the negative potential and threat of the German Nazis and prohibited (with approval of the socialists) the NSDAP in Austria. He pursued a vision of a church oriented class based totalitarian state, concluded a concordat with the Holy See and declared a new Constitution in 1934.[91]
Although the political elites rejected the NSDAP, a similarly fascist political style and totalitarian regime (one party rule, government could issue constitutional laws, etc.) evolved. This regime, however, realized its own instability and feared a coup d’etat from German oriented nationalists or the wholesale occupation, particularly after nationalists had murdered Chancellor Dolfuß in an attempt to assume control.
The economical upturn in Germany and the new friendship between Germany and Italy created new impetus for the people’s inclination towards a common Germany. Since the socialist party had been dissolved, the conservatives found themselves as the only defender of an independent Austria and soon (1938) Hitler’s pressure on Austria mounted too high. The Austrian chancellor in pursuit of an independent Austria hoped for a people’s vote to strengthen his position and announced such a vote for March 12th, 1938.
In the night before, however, German military forces slipped over the border into Austria, the vote was cancelled, the president had to swear a pro-German leadership into government and German military occupied Austria within days without fighting. On April 10th, 1938, a newly called-for vote legitimized the annex, which soon turned out to be a well conceived coup delivering Austrian treasures (e.g. the rich gold vaults in the National Bank) to the German Reich which was desperate for financial resources to balance its giant spending costs.
Austria, after a thousand years, returned full circle to its original position as Ostmark – a defensive zone in the East of a much larger state and its own sovereign institutions (including the High Courts) were either abolished or transformed beyond reckoning. The longer this situation continued, however, the stronger grew the identification with the lost republic among Austrians and active as well as passive resistance activity increased, encouraged by the Moscow declaration (1943) of the Allied forces (viewing Austria as victim rather than as aggressor).[92]
With the end of the war, the four allied forces divided Austria and Vienna in four zones, and a provisional government re-promulgated the Constitution in its form of 1929 and announced the independence of the Republic. The government, however, operated under the control of the so-called Allied Counsel and preparations for the Nurnberger trials to punish leading Nazis commenced also in Austria. As another result from the war, the popularity of a Great-German lost its appeal for the great majority, while economical relations with West-Germany deepened. Meanwhile the different parties inside Austria muted their ideological programs and created an era of cooperation and conciliation concentrating on economical reforms.[93]
Although the Western powers favored a quick treaty with Austria, Russia delayed and first approved territorial demands of the Yugoslavian government.[94] Finally in 1955, after offering “everlasting neutrality emulating the Swiss model”, Moscow agreed and on October 26th, 1955, the last allied soldier left Austria and the neutral status was declared, consequently.
Austria joined the UN in 1955 (December) and the Council of Europe in 1956 (April); coalition governments were formed between 1955 and 1966 that created two distinguishing systems of Austrian internal organization – the Proporz system and social partnership. The Proporz system based on extra-parliamentary committees that were invoked between the two coalition parties after an election was held. In these committees the official positions in state organizations and positions in state-run enterprises were distributed between the two parties according to the latest voting results. The social partnership system started as yet another committee of the four great economic interest groups in order to regulate wages and prizes on a fair level. Soon however, its members formulated broad economic policies and since all decisions in the commission had to be unanimous, the interest groups (employer and employee representatives) learned to cooperate and reach compromises quite effectively. Both systems came under fire within the last two decades and also provided a fertile ground for the anti-government right wing party. Its electoral gain in 1999 (about 27%) and the consequent coalition with the conservative People party caused bilateral sanctions from all other EU member states against Austria (after Austria had joined the European Union in 1995).[95]
1.3. Immigration, Citizenship and State-Sovereignty
Not only Japan but most of the States in Europe including Austria face the problem of a so-called aging society. A declining birth rate in combination with an increasing longevity due to better life-styles and health care result in a social system with less and less children but more and more elderly members. Besides initiatives to promote child-bearing among the own population, immigration is perceived as a measure to counter the effects of an aging society.
Immigration however does not end with the entry of aliens in the host country. After the entry a process of integration starts that depends strongly on the legal position aliens enjoy in the host society. The best legal position is achieved with naturalization which at least in theory should enable the former immigrant to enjoy the same rights as all other citizens of the host state. States differ in their approach as to whether an early award of citizenship furthers better integration or as to whether citizenship should be the crowning event of a successful integration.
Before an alien qualifies for citizenship, however, all countries face the same problem of separating welcome from unwelcome immigrants. The focus of this study – the deportation of aliens – is at the center of this tension field between welcome immigration and the deportation of unwelcome aliens. This chapter discusses some of the issues connected to the award of citizenship, the role of citizenship in modern Western states and the consequences of immigration for state sovereignty.
1.3.1. Ways to Become a Citizen
Basically there are two ways to naturalize – the ius soli and the ius sanguinem principle. Countries that employ the ius soli principle confer their citizenship on all those persons who are born on their territory, while countries that base their naturalization rules on the ius sanguinem principle award their citizenship only to those persons that were born as children of parents who are also citizens.
Plural citizenship then refers to people holding citizenships from different polities.[96] On the cost side, citizens are eligible to benefit programs usually not accessible for mere residents. Dual citizens might further complicate the situation because they are members of two different polities.[97] Although many of those countries that allow dual citizenship encounter few problems in that regard, a country like the US with millions of double citizens (e.g. Mexican/US) has to deal with it.[98] To argue that the second citizenship has no stronger impact than e.g. a person’s church views[99] as long two polities are not at war with each other seems little satisfying. Since neither Japan nor Austria allows – with few exceptions[100] – dual citizenship this problem when immigrants ultimately turn into (dual) citizens hardly affects these two countries.
1.3.2. Inclusive versus Exclusive Citizenship
The concepts of ius sanguinem and ius solis refer not only to legal regulations but also contain social connotations. A strict ius sanguinem nationality law means that only children of citizens can become citizens themselves. It guarantees that the ethnicity in such a polity is rather homogenous and it certainly excludes foreigners from acquiring citizenship (exclusive). Ius soli on the other hand means that all children born inside the territory of a polis acquire the citizenship of this polis regardless of the status of their parents (inclusive).
While ius sanguinis is the more ‘modern’ legal construct[101] and arrived together with the concept of nation states, the ius soli construction already helped feudal lords to maintain power over all subjects born in their territory.[102] Ius sanguinis has been gradually abandoned by modern liberal states. In the US, suggestions to amend the “too inclusive” jus soli conception failed and in Germany, one of the few nations sticking to the ius sanguinis rule, a process has started that substitutes the ius sanguinis rule with the ius soli rule (Optionsmodell).[103]
These changes away from strict ius sanguinem concepts take place hand in hand with discussions about the situation of second generation immigrants and their offspring. Children of immigrants grow up learning and speaking the local language and are exposed to a similar socialization as other children in their environment. To classify them as aliens would be to deny reality.[104] It is thus dangerous to trust country statistics that list the different percentages of foreign population, if the compared countries operate under completely different naturalization rules. For Japan and Austria, however, the respective nationality laws rely both heavily on the ius sanguinem principle. Comparisons are therefore not a priori precluded.
Even if aliens do not acquire citizenship easily, as in the case of Austria and Japan, several legal principles can lead to effectively similar rights of citizens and (long term) residents.[105] These principles which exist in all constitutional states – albeit in different forms – are (1) the equality principle, (2) the principle of due process and (3) the consent principle.
The Equality Principle means that the Administration “may not arbitrarily or irrationally classify people and that in adopting legislative or administrative distinctions among people, it must treat alike all persons who are similarly situated”.[106] This principle introduces a tendency to abolish different treatments of different residents regardless of the citizenship status of these foreigners. As long as all residents are subject to the same ultimate state authority, differences seem less and less justified particularly if foreign residents live under the very same conditions (i.e. are similarly situated) as nationals do. The factual justification for different treatment and the reservation of various rights to citizens therefore loses credibility.
The Due Process Principle calls for procedural fairness in adjudicating rights. This impedes the deportation of aliens because aliens enjoy a number of remedies to evade or postpone deportations. Only clear violations of the social order therefore can be followed by swift deportations.
The Consent Principle maintains that it must be an individual’s free will to join any given polity.[107] Since already legal residents enjoy considerable rights, aliens might choose to refrain from naturalizing because they might lose subjectively important rights in their former home countries. The consent principle, however, is no one-way road.
Not only the alien but also the respective polity must agree to the naturalization request.[108] A modern state expresses this agreement by passing laws that contain naturalization regulations. If the corresponding requirements are low and citizenship is awarded quickly, the citizenship status is relatively low (relative to another country with stricter requirements).
Consequences of Devalued Citizenship
The first consequence is the effect on democratic processes in a polity. If immigrants choose not to naturalize and live as long term foreign residents inside a state, they have little influence on the political decision making process because foreign residents generally do not enjoy political participation rights.[109]
The second consequence is a negative influence on the foreign residents’ integration in the host society. If foreign residents decide not to naturalize, they also might (voluntarily) fail to integrate socially and culturally. These residents might not even achieve mastery of the common language in a certain polity, which dilutes social cohesion in the polity and constitutes an additional barrier for full membership in the polity.
As a third consequence resentments among the citizens of the polity might develop. Democracies confer not only merits but also burdens on all citizens. Thus, while a full citizen has to bear the full share of burden, a legal resident might be exempted from these burdens and impoverish the polity by seeing herself entitled to all the advantages but free from all the burdens. These problems of course increase with the relative size of the foreign population in a polity.[110]
1.3.3. Immigration and Nation
The members of a polity supposedly share a set of characteristics which distinguish them from non-members. Citizenship has the function to sort people into members and non-members. In multicultural environments – and most of the Western states are multicultural societies although different parts of the society might not enjoy equal rights – citizenship also has the function to create a bond among individuals who often are of diverse backgrounds and have similarly diverse attitudes and preferences.
How citizenship is supposed to fulfill this function depends also on the different conceptions of citizenship itself. In general, a contractual model and an ethnic model can be differentiated.[111] The contractual model (e.g. France) pictures a nation as a voluntary association or contract between free individuals, while the ethnic model embraces a community bound together by blood relations and common descent (e.g. Japan). When the nation is perceived as an ethnically predetermined group, the right of citizenship is passed on only onto members of this ethnic group (ius sanguinem) and results in a very exclusive polity.
Constructing a nation on the basis of a contract between the nation and (any) individual implies regular occasions for new parties to join the contract relationship.[112]
One way to answer this challenge of pluralistic societies is suggested by the ‘libertian’ conception of citizenship.[113] People are reduced to agents in a free market and citizenship is just one more good offered on this market. Through contract and choice (the means on a free market), consumers (i.e. immigrants) embrace their preferred bundle of public goods. A consumer might therefore choose to become a citizen and thus expand his access to public goods, or decide for a more restricted bundle of public goods and remain in some other legal status (permanent resident, temporary resident, etc.). Libertian citizenship conceptions also need to be evaluated carefully for their practical feasibility, though.[114]
Because citizenship is one of the defining elements of a nation state, immigration may not only challenge citizenship models but more fundamentally the sovereignty of states.
Sovereignty in international law refers to freedom from external control, i.e. independence from other actors and the power to determine internal matters free from the interference of other states. With respect to international migration, sovereignty would mean (1) that states control their borders and decide whether or not to permit entry, (2) that even after admitting migrants the state can reverse its decision through expulsion, should it be deemed in the national interest, and (3) and that states choose which migrants will or will not receive nationality.[115] Arguing that also a country’s sovereignty is challenged by immigration would involve the claim that the locus of decision-making over migration policy is shifting to extra- or subnational actors.[116],[117]
Such extra-national actors may be found in international or regional legal regimes which impose limitations on the free execution of sovereign rights of states. International actors like the United Nations or the European Union exercise potentially strong influence but generally also their actions are decided by their member states.
Only within the EU with the freedom to move and settle in other member states, nations transferred considerable sovereign rights to a supranational body at least for the group of workers.[118] Thus, Freeman’s argumentation that (1) the attention should emphasize the immigration into the EU and not migratory moves inside the EU and (2) that most immigration regulations of the EU are decided on the intergovernmental level and not the community level[119] seems little convincing.
First it seems irrational to turn away attention away from the single nations inside the EU to the whole EU area when discussing the loss of national sovereignty. The EU definitely qualifies as an extra-national actor and confines the sovereignty of its member states. This is exactly the claim, Freeman wanted to evaluate.
Secondly, it is correct indeed to emphasize that many of the immigration measures taken by the EU were decided at the intergovernmental cooperation level. Since the Amsterdam treaty (signed 1997), however, visa, asylum, and immigration issues became part of the first column of the EU (issues decided at the community level). Thus, undoubtedly, the nation states are losing or transferring sovereignty rights to community institutions.
Mass Immigration
As discussed above, immigration poses considerable challenges to a polity. It challenges the internal function of a polity leading to a devaluation of citizenship and also the sovereignty of a nation, since nations are forced to cooperate more closely with each other and even establish rule-setting extra-national institutions.
These challenges multiply in the case of mass immigration. Mass immigration must be viewed in relation to a country’s population.[120] There is however another challenge by today’s (mass) immigration that was not present earlier. This is the difference in desired skills. While a century ago in America[121] or fifty years ago in Europe the immigration of unskilled workers was welcome, it is no longer so today. While today also many skilled workers migrate globally, mass migration is still entangled with the problem of poor educational and professional background of these immigrants.[122]
Thus, regulations that allow for immigration corresponding to the qualifications needed in the work force are part of immigration laws.
The effects of (mass) immigration thus need to be evaluated against the social background in which they occur. In a continuum of social integration which ranges from a plural to a multicultural society immigrants find different living opportunities. The underlying basis in this continuum (depicted in Figure 2 below) is the existence of a substantial number of non-native people (immigrants or their successive generations) in a given society.
A plural society then is a polity in which a number of ethnic groups encounter each other only in the so-called marketplace – the forum for cultural and economical participation. Each of these separate groups has tight internal relationships e.g. because of their unique morals, history and culture. The encounter in the market-place therefore is marked by the absence of a ‘common will’; “each of these various ethnic groups has its own separate and nearly complete institutional set […] bound together by a single political system based upon the domination of a ruling group”.[123]
The multicultural society on the other end of the continuum, however, has not been defined concisely in social science yet. Generally, immigrants do not form closed groups but participate as full members of the society and add their own characteristic traits to the host society.[124] Some writers describe the affinity to multicultural societies as one defining characteristics of Europe which goes hand in hand with such values like tolerance, the perception of democracy as a good political system, a sense of national pride, and the belief that states should not resort to violence and warfare to solve international disputes.[125]
Somewhere in between we can picture a society in which two or more ethnical groups live together in a form of power-sharing (equal groups society). The major ethical groups would maintain their original heritage[126] although taking full part in the political process. Additionally, these major groups would be more open to the integration of outside members compared to the groups in the plural society.[127]
illustration not visible in this excerpt
Figure 2: Social Integration Continuum.
Although the above figure deals only indirectly with the problem of new immigration, it requires little efforts to incorporate the effects of (mass) immigration. Mass immigration is the influx of a considerable number of people into a state’s territory. The new immigrants might form a homogenous group. Japan for instance experienced such mass immigration before and at the beginning of the Second World War when more than two million Koreans moved or were forced to move to Japan. Austria experienced diverse immigration streams during the guestworker program in the late Sixties and beginning Seventies.
The degree of social integration in a society necessarily influences the position of new immigrants. If people immigrate into a plural society, the best way to cope would be to integrate into an existing group, if possible. If the integration level approaches the integration level in a multicultural society, the assimilation with one group in the host society is not required; indeed, even if the new immigrant would want to integrate into a familiar group, there might not even be one, or the common group characteristic (e.g. same country of origin) might have little weight compared to other factors like education or professional background.
Besides the integration degree of different ethnicities in the host society, also social classes or strata exercise considerable influence. In British society which is rather multicultural in regards to ethnicities, Rex identifies four classes, an upper class, a business class, a middle class, and a worker class; each with their own characteristics, which contradict with characteristics of immigrants or their treatment by modern states.[128] Other writers also stress the influence of social developments and explain how greater liberty for individuals can result in an intensified search for identity.[129] This search for identity goes hand in hand with an attempt to differentiate oneself from others; foreigners being the prototypical ‘other’.
2. International Regimes
When discussing international migration or immigration systems, it is hardly possible to do so without regard to certain international regimes that influence the immigration control systems of Japan and Austria. Since references to these international regimes appear throughout this paper, it seems appropriate to provide a basic introduction of these regimes before starting to discuss the immigration and deportation of aliens in Austria and Japan. At an international level, these regimes include the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child, which are not directly related to immigration issues but serve as general protective mechanisms of human rights. During the deportation of aliens, general human rights issues may arise and these treaties may apply. Another important international treaty – the Geneva Refugee Convention – is not discussed here because the present paper does not focus on the treatment of refugees. While the before-mentioned two conventions operate on a general level and affect Austria as well as Japan, there also exist various European regional treaties etc., which apply only to Austria. These include legislation from the European Community in general, the Schengen and Dublin treaties and the European Convention on Human rights.
2.1. The International Covenant on Civil and Political Rights
With the International Covenant on Civil and Political Rights (ICCPR) an international regime for the protection of human rights entered into force in March 1976.[130] An international regime is a “set of principles, norms, rules, and decision-making procedures that are accepted by states as binding within a particular issue area”.[131] One of the aims of the ICCPR was to provide an alternative to the non-binding character of the United Nation’s Declaration of Human Rights of 1948.
Thus, the contracting states to the ICCPR[132] are not only bound to the promotion of these civil and political rights but must also guarantee these rights in their national legal systems. They must further adhere to the respective procedural mechanisms of the ICCPR. In its Part Four, the ICCPR establishes a human rights committee (to distinguish from the UN Commission on Human Rights, a permanent subsidiary body of the ECOSOC) with 18 independent expert members.[133]
This human rights committee has two treaty-based measures to monitor human rights violations in member states. The first is the evaluation of complaints of states about human rights practices in other states which are parties to the covenant.[134] In order for the human rights committee to get involved, the complaint must be directed against another member state which accepted this mechanism.[135] However, this procedure requires a member state to accuse another state of violating human rights. States are rather hesitant to use this measure to promote human right issues, although the public character of the procedure could attract considerable attention to the human rights violations in question.
In actuality the evaluation of state reports is practically the most relevant measure employed by member states.[136] Although states report only every two to five years to the human rights committee, the character of the human rights committee (its independent experts, the public attraction for the state’s report also within its own territory and the committee’s evaluation as well as the necessity of follow-up reports) and in particular the obligatory character of the state report procedure can command some changes in a nation’s human rights practices.
Nonetheless, states that are unwilling to comply with the rights in the covenant have a number of possibilities to obstruct the efficiency of the state report system. For example they may only provide unsatisfactory answers to the committee’s questions. Also states are allowed to skip single questions completely. Moreover states might resort to evasive claims or citations of laws or administrational decrees. Furthermore states can delay their reports for considerable periods of time and thus hinder the committee in taking further actions.[137] Finally the implementation of any suggestions finally depends on the respective state’s willingness and cannot be enforced.
The First Additional Protocol to the ICCPR
The first additional protocol to the ICCPR, which was opened for signature in 1966, allows the human rights committee to review complaints of individuals about the violation of human rights and to state its “view” on these violations.[138] The ICCPR human rights committee’s ability to evaluate individual complaints (in accordance with the First Additional Protocol) can be seen as a complimentary development to the effects of the 1235 and the 1503 mechanisms, which were established outside of the treaties.[139]
An individual complaint must meet several requirements before it is considered in the human rights committee.
The most important requirements are:
a.) The violation must have been committed by a state that is a party to the additional protocol.[140]
b.) The violation must concern a human right, which is stipulated in the ICCPR and must be present (or immanent), towards the plaintive himself and constitute a direct violation; consequently no anonymous complaints are accepted.[141]
c.) No further national appeals are possible (including Constitutional Courts).[142]
d.) There is no other international appeal at the time of the initiated complaint.[143]
If these requirements are met, the individual complaint is first considered in a subcommittee and the respective state is asked to provide its view on the case. In a confidential procedure, the respective committees work towards a friendly solution in the concerned case and present their consensual view on the case in public. Thus, although the human rights committee prepares a view on each case, which faintly resembles the judgment of a court – i.e. a decision whether a violation was committed or not – the possibility to work together with the accused state towards a satisfactory solution makes the committee’s work very different from a merely truth finding court. A state’s unwillingness to cooperate or to provide statements to the human right committee can be interpreted as an admission of culpability.[144]
Possible weaknesses include the comparably small number of parties to the additional protocol[145] combined with the fact that only states with a good human rights history ratified the protocol. States with gross violations of human rights are not parties to the protocol. Additionally, the length of the procedure is troublesome – about one and a half years to decide about the requirements and another two years to decide about the material claim.
However, the most troublesome weakness for the involved applicants is the lack of binding force of the ‘view’ of the committee. Thus, the state involved is not bound by the ‘view’ of the committee and may choose to ignore its statement.
In regards to Japan and Austria which both ratified the original covenant, only Austria also ratified this additional protocol. Upon ratification it declared however, that only issues that are not examined by the European Commission may be brought before the human rights committee. Japan on the other hand refrained from signing or ratifying the first additional protocol indicating that it would deprive the Japanese Supreme Court from its role as the country’s highest adjudicating body.
2.2. The Convention on the Rights of the Child
Unlike other international treaties or conventions, the Convention on the Rights of the Child (Child Convention) has enjoyed wide-spread support in the international community as far as its ratification is concerned. Opened for signing in 1989, already one-hundred-ninety-two states have become parties to the Convention and more than one-hundred-and-forty states have ratified it.[146]
Although these high numbers seem satisfying for the international consideration of children rights, there can be little doubt children do not enjoy the Convention’s rights in similar abundance. From the perspective of material rights, the Convention enumerates a considerable number of rights which include not only individual freedoms but also social and cultural rights. The basic notion of the Convention is to further the best interests of the child and is expressed in the stipulation that in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.[147]
Austria and Japan signed and ratified the Child Convention during the first few years after it was opened for signing in 1992 and 1994, respectively. Both countries however also issued declaration and reservations. Austria’s declarations and reservations can be disregarded in the context of this paper[148] ; but Japan’s declarations partly affect children who are involved in deportation procedures directly or indirectly. Thus Japan stated that:
1. The Government of Japan declares that Paragraph 1 of Article 9 of the Convention on the Rights of the Child be interpreted not to apply to a case where a child is separated from his or her parents as a result of deportation in accordance with its immigration law.
2. The Government of Japan declares further that the obligation to deal with applications to enter or leave a State Party for the purpose of family re-unification ‘in a positive, humane and expeditious manner’ provided for in Paragraph 1 of Article 10 of the Convention on the Rights of the Child be interpreted not to affect the outcome of such applications.
Particularly the first declaration is important since the corresponding stipulation (Article Nine) of the Child Convention requires that children should not be separated from their parents except when the separation is in the child’s best interests. Since the separation of child and parents in the course of deportations is not in the best interests of the child, Japan might have been forced to issue residence titles to aliens with unlawful stays to protect the child’s best interests.[149]
As for the compliance mechanism, the Child Convention also founded a treaty body – the so-called Committee on the Rights of the Child – which should control and monitor the treatment of children in regards to the rights contained in the Child Convention.
Similarly to the original treaty body of the ICCPR, the committee on the rights of the child is not entitled to accept individual complaints and thus is limited to state reports. An additional protocol that would allow for individual complaints might overcome this weakness, though it is unlikely to receive the same amount of support as the Convention itself was able to gather.
So far two additional protocols to the Convention on the Rights of the Child have entered into force – the optional protocol on the involvement of children in armed conflicts[150] and the optional protocol on the sale of children, child prostitution and child pornography[151]. Both additional protocols did not extend the powers of the committee created in the original Convention and rely solely on state reports.
2.3. EC Legislation
The European Community (whether in the form of the EU or the ECs) can show an impressive developmental history which has started after WWII and continues even today. Immigration is one of those fields where some of these developments during the last decade became visible, but it is also a field that represents the constant struggle between the striving of EC member states to maintain national sovereignty and the development of communitarian competences for the common good. Principles of subsidiarity and proportionality clash with pooling sovereignty from member states for the common interest.[152]
Given the pan-European phenomenon of declining birth rates and a consequent population decrease and aging on the one hand and the reality of two dozen different national immigration systems plus the opportunity of free movement inside the EU, the EU’s involvement in the management of immigration issues is necessary and unavoidable. This chapter provides a short overview on the respective development and efforts.
2.3.1. Recommendations, Resolutions and Intergovernmental Agreements
Since the Schengen and Dublin treaties (which will be discussed in the next chapter) constitute European regional treaties with special focus on border control and asylum issues, the European Community itself has remained fairly uninterested in immigration and asylum matters until recently. This particular lack of interest resulted not least from the member states’ hesitation to transfer competencies in regards to immigration to the communitarian level. While there were some earlier EC agreements in regards to the treatment of refugees and asylum seekers[153], immigration remained almost exclusively within the confines of national policies[154].
At the end of the eighties/ beginning of the nineties, multiple attempts at the community level but also on the level of intergovernmental cooperation focused on the free movement of individuals within the EC and the admission of immigrants to the EC.[155] While the right to free movement and settlement in other EEA member states is explicitly granted only to nationals of EEA states, the EC also facilitated migration of third-country nationals via association treaties with non-member states.[156]
The first steps towards EC legislation in regards to typical immigration issues concerned e.g. the regulation for non-visa exempted countries binding on all EC member states. This step was based on the powers of the new Maastricht treaty[157] alongside which the EU member states declared to undertake steps to evaluate a possible integration of asylum matters in title VI of the EU treaty, (the chapter on cooperation of police and justice systems) which eventually should lead to their harmonization.[158] However, the creation of this justice and home affairs pillar within the EC also moved asylum seekers and immigrants into a ‘securitization’ framework; from a legal point of view it still very much relied on intergovernmental agreements instead of EC legislation.[159]
Thus, also the resolution for the harmonization of national policies on family reunification was decided and declared by the member states and based again on the intergovernmental agreement mechanism.[160] With this resolution an important part of national immigration rules, e.g. the reunification with family members of third-country nationals, became a part of European common interest.[161] The material stipulations allow family members to enter the respective EC member state in which the anchor alien (Ankerfremde; moto ni naru gaikokujin) resides under several conditions, such as the specific restrictions for the term ‘family members’ (restricted to the alien’s spouse and the alien’s children), possible waiting periods and general requirements.[162]
2.3.2. The Change to First Pillar Legislation
There were additional intergovernmental agreements[163] but with the Amsterdam treaty[164] the interest in the harmonization of immigration regulations increased significantly. First, the EU member states declared their goal to incorporate the Schengen acquis[165] into EU law.[166],[167] Furthermore, the EU was obliged to develop within five years after the entry into force of the Amsterdam treaty (deadline therefore is May 1st, 2004) a common regulatory framework for the matters contained in the Dublin Convention and beyond (minimum requirements for asylum application procedures, immigration policy measures regarding illegal immigration and illegal residence, etc.).[168]
After the entry into force of the Amsterdam treaty, these regulations were moved to the so-called First Pillar of EU law[169], which is not only subject to the full jurisdiction of the European Court of Justice but its content is also binding on its member states and immediately applicable.[170] The EU may use any of its legislative measures including directives for the creation of new binding rules (as depicted below e.g. Table 1).
After the deadline in 2004, some parts of these regulations no longer require unanimous decisions and can be decided by majority votes. Thus, the Amsterdam treaty’s main impetus was to provide a framework for a more systematic approach to asylum and immigration systems and to abandon the more ad-hoc and piecemeal legislation that existed before Amsterdam.[171]
Momentum also followed the conclusions drawn by the European Council in Tampere (Finland, October 1999), when a ‘scoreboard’ was created to list the work that needed to be done within the next five years.[172] This scoreboard contained four broad areas in which the EU planned to develop or adapt legislation and cooperation such as (1) partnership with countries of origin of migrants, (2) a common European asylum policy[173], (3) fair treatment of third country nationals, and (4) management of migration flows.
Following this strategy paper, recent EU legislation in regards to immigration issues has increased considerably both quantitatively and qualitatively. The qualitative change of course resulted from the new hard-core character of the respective legislation; recent EU legislation therefore often uses Directives instead of Resolutions or Recommendations. Directives have the advantage that the included aims and provisions are binding and directly applicable. Individuals therefore can resort to the corresponding EU directive to oppose contradicting national legislation. The differentiation between directives that concern member state nationals and other directives that concern third-country nationals is significant on the European level since it resembles the differentiation between internal, national freedom of movement and external immigration regulations of a nation state. From the perspective of a country’s immigration control system, however, both forms of migration – the immigration of other EU citizens or the immigration of third-country nationals – are forms of immigration.
Table 1: Recent EU Directives on Immigration Control
illustration not visible in this excerpt
Given the binding nature of the measures depicted in Table 1, it is clear that EU legislation exercises strong influence on the immigration control systems of its member states. This influence is even stronger within the Schengen system which mainly concerns border control and visa matters. In regard to the influence of EU legislation on long-term immigration as in the above table, EU legislation is still particularistic; it deals with special groups of immigrants or special circumstances. A holistic immigration control system that would replace the national immigration laws of its member states has not been constructed yet. Such a system would need to provide member states with enough leeway to adjust the common immigration control system to country-specific needs.
In regard to the immigration of nationals from other EU member states it is important to keep in mind that from a European perspective (i.e. from the perspective of the European legislator) we are not talking about immigration but about the free movement of union citizens. Since the introduction of the EU citizenship[176], the guarantee of free movement for its citizens has started to evolve into a fundamental right that derives from primary European community law (i.e. directly from the EC treaty and not from secondary legislation like directives). This stipulation reads as follows:
Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.[177]
Despite the clear wording, it took the European Court of Justice some time to develop the central role of this right and its character as immediately applicable and enforceable.[178]
Finally, it should be kept in mind that the EU is not only changing European legislation but also serves as a model for many other states. The export value of its policy changes should not be underestimated particularly concerning Eastern European states that aspire to EU membership (and thus have to harmonize their own legal systems with the existing EU legislation). If economically rich areas like the EU continue to tighten immigration regulations and raise the bar on recognizing refugees, other states in the world might become increasingly unwilling to take on additional refugees and immigrants.[179]
2.4. The Schengen System
As mentioned above, the Amsterdam treaty is a recent milestone in the development of the EU as the EU declared to incorporate the Schengen system into EU law.[180] Thus, it might be possible to file the Schengen system under the above subchapter on EU regulations; this however would not do justice to the special nature of this system. The special nature of the Schengen treaty as a treaty among EC member states but outside the EC framework is also responsible for the fact that not all EC member states are yet participants of the Schengen border free area[181] (e.g. Hungary, Poland, etc.) and that some non EC member states (e.g. Switzerland, Norway, Iceland, etc.) are signatories of the Schengen treaties.
2.4.1. General Remarks
The often cited term ‘the Schengen treaty’ is actually misleading because there are actually two, not one, Schengen treaties (Schengen I and Schengen II) which together form the Schengen system. Already the mere construction of the Schengen system as a ‘last-resort’ needs some explanation. The Schengen treaties were drafted among EC member states who had long hoped to achieve a consensus on regulations for the free movement of persons within the EC and common border controls at the entry of the EC area. Since the general freedoms of movement including the free movement of people was a long-term goal of the EC founding states like France, Germany and the Benelux, they tried to implement such a system of free movement with the abolition of inner border checks in the EC during the seventies and eighties.[182] As early as 1985, the above mentioned five states signed the Schengen I treaty which was nothing but “un programme de travail concernant les principales mesures que les Cinq devront réaliser pour permettre la suppression totale de leurs frontières internes “.[183]
However, only with Schengen II a detailed set of regulations and a legally binding responsibility to abolish border checks at the internal borders of the Schengen area has arisen.
2.4.2. The Regulations in Schengen II
Generally Schengen treaty members[184] to the Schengen II treaty agree to harmonize provisions relating to the (1.) entry into, short stays and movement in the Schengen area by non-EU citizens (uniform Schengen visa), (2.) asylum matters (determining in which member state an application for asylum may be submitted), (3.) measures to combat cross-border drug-related crimes, (4.) police cooperation (particularly in hot pursuit), and (5.) cooperation among Schengen states on judicial matters. Although Schengen II was signed on July, 19th, 1990, it entered into force only in 1993 and took practical effect on March, 26th, 1995, because of technical and administrative reasons.
While Article 1 is concerned with various definitions, Article 2 to 38 form the Second Title of the Schengen II treaty and are concerned with the abolition of checks at internal borders and other issues of free movement. Title Three concerns police and security measures[185] and Title Four laid down the foundations for the Schengen Information System (SIS)[186]. The remaining Titles Five to Eight contain several other regulations about the transport of goods, the protection of personal data collected in the SIS and the founding of an Executive Committee[187] of the Schengen treaties to monitor the implementation of the Schengen treaties.
2.4.3. Entry, Short Stays and Movement in the Schengen Area by Non-EU Citizens (Uniform Schengen Visa)
For the entry into the Schengen area, aliens must fulfill a number of requirements and the member states have the explicit duty to penalize any unauthorized border crossings. The respective regulation[188] acknowledges exceptions for maritime traffic such as coastal fishing and yachting but not e.g. for refugees.[189]
For the entry, aliens are required to carry a valid document to cross borders and additional papers that provide evidence for the purpose of their visit in the Schengen area. Beyond these positive obligations an alien must not be on a ‘black list’ kept by Schengen authorities. This list contains the identities of people that are not permitted entry to the Schengen area.[190] Since the beginning of the Schengen system, the number of aliens on this black list has steadily increased and reached more than 775,000 in February 2003.[191] With the increasing number of countries that participate in the Schengen area, the affected persons (those third-country nationals on the black list) will experience great difficulties in ever visiting the Schengen area again. The entry in the SIS therefore has similar effects to an entry prohibition for most of the rest of Europe.[192] Furthermore, aliens who are perceived as threats to public policy or national security are not allowed entry.
When finally allowed entry, the alien has to undergo a number of quite thorough checks, which have become all the more important since global terrorism became a serious threat. Border states have additional duties to guard the external Schengen borders with great diligence and countries that want to implement the Schengen agreements are tested and evaluated for their ability to have thorough border controls and surveillance measures.
The Schengen visa is principally a visa for short-term visits not exceeding ninety days although Schengen II also knows the category of a long-term visa.[193] The visa system requires all treaty states not only to corroborate in the technical sense but also to harmonize their visa policies in regards to all third countries, with the aim that no two countries of the Schengen area have different visa requirements towards citizens of third states. The heart of the harmonized visa system is the Schengen visa[194], which grants access to all Schengen II treaty states. It should be issued by the state, which is the principal direction of a person’s visit to the Schengen area,[195] although the Schengen short-term visa can also be a visa used for mere transit reasons only.[196]
The Schengen visa requires a valid travel document, which must be acknowledged by at least one member state. If only certain states acknowledge the respective travel document as valid, then the Schengen visa is restricted only to these states.[197]
Aliens failing the necessary requirements may still be admitted to the territory of one member state on a humanitarian basis[198] ; in such cases the respective aliens may not move freely within the Schengen area.[199]
The long-term visa is actually not a Schengen visa in the sense of the short-term visa. It must be issued by a national immigration authority (not by Schengen authorities) and then allows passing through any other Schengen state in order to transit to the final destination.
2.4.4. Asylum Matters
As far as asylum matters are concerned, the Schengen II treaty deals only with the identification of the responsible state for processing asylum claims and related issues. Its purpose is not – at least in principle – to change or amend the material provisions of the GRC[200] ; most of the regulations in the Schengen II treaty were incorporated in the Dublin Convention,[201] which forms a specialized treaty for asylum matters and entered into force in October, 1997, for Austria.[202]
While reaffirming their duties to the GRC[203], the Schengen II treaty states try to establish a system in which every asylum claim is heard once and once only by the competent state. Additionally it maintains each state’s right to reject asylum applications on the basis of secure third countries. Schengen II further stresses the importance of information exchange among the different states in the asylum area in a number of regulations, which supplement the general information exchange system.[204]
1. The Responsible State:
The Schengen treaty lists seven criteria according to which the responsible state can be determined.[205] The first criterion refers to the state that has awarded any type of visa or residence permit to an applicant.[206] Second, the country whose external borders were crossed becomes responsible. Exceptions are made for applicants, whose claims are already evaluated or decided. In such cases the state, which is engaged in the decision process is responsible in general.
A general exception is also made for applicants, whose family member’s claim for asylum was already favorably decided by a member state. In such a case, the state that has awarded refugee status to the other family members shall be responsible for the evaluation.[207]
2. The Applicable Asylum Law:
It is important to stress that the Schengen II treaty does not establish uniform material asylum provisions. Only the responsible state for the application is determined by a Schengen procedure. When evaluating the merits of a claim, or even the admissibility, the individual states employ national law.[208] Thus, differences in interpreting the GRC may have strong effects on the applicant, who is often helpless in acquiring the protection needed.[209]
2.4.5. Measures to Combat Cross-Border Drug-related Crimes, Police Cooperation and Cooperation among Schengen States on Judicial Matters
Schengen II is not restricted to border control or asylum issues but deals with a number of additional topics of internal security that have been neglected on the communitarian level before the Schengen agreements. Interior matters are and were perceived as integral parts of state sovereignty and this perception has long hindered the community institutions in taking the initiative in these areas. However, with the Schengen agreements many EU member states have acknowledged the need to work together in a variety of areas formerly exempted from harmonization. Thus, the Schengen treaties have proved valuable regardless of legitimate criticism of specific regulations.
For this overview it seems impossible to deal with all the remaining issues of the Schengen system. Thus, only some related regulations shall be touched upon (admittedly somewhat unsystematically).
1. Police Cooperation:
Police cooperation is restricted to the area of criminal investigations and is in general unrelated to issues of refugees or immigrants. However, one related case is trafficking in human beings. Police officers are allowed to continue the observation of people believed to take part in such operations beyond the national border and in the case of hot pursuit they are allowed to apprehend and arrest such individuals in other member states.[210] Such border crossing officers are regarded as officers of the state, whose border they crossed, for the time of their duty.[211]
An additional feature is the European warrant that allows the police of one member state to arrest an individual on behalf of the warrant issued by another member state.[212]
2. The Schengen Information System (SIS):
This information system is conceptualized as a measure to assist both police officers in the pursuit of criminal investigations as well as immigration officers for the evaluation of visa and asylum application procedures. Hence, the system allows the storing of a limited set of personal information such as names, date and place of birth, sex, nationality and reasons for any prior report in the database.[213] With the incorporation of additional data, the increasing number of third-country nationals that were entered in the SIS and the corresponding growth of the black list (those aliens not allowed entry to the Schengen area), the SIS has evolved in a powerful measure and encounters wide-spread skepticism and opposition. Opposition against the SIS also results from the consideration of new functions of the SIS e.g. access for Europol, Eurojust and the national security services to the SIS.[214]
2.5. The European Convention on Human Rights
The European Convention on Human Rights (henceforth: Convention) occupies a special role in Europe that goes far beyond the aim of safeguarding human rights. It also plays an important role in harmonizing human rights standards beyond the jurisdiction of the EU institutions and generally enjoys wide spread support among the people in Europe (a support the EU institutions hardly ever experience).[215] For Austria the Convention is of additional importance as a constitutional document that takes the place of a bill of rights in the Austrian legal system.[216] This chapter provides a short introduction into the Convention’s making, outline and compliance mechanism.
2.5.1. Outline and Short Introduction of the Convention
After people in Europe had learned from WWII that the protection of human rights could not be regarded as any nation’s internal affair, the aim of regional treaties signed in Europe after WWII was to provide exactly such a safeguard and to integrate defeating and defeated countries into binding cooperation. One such example cooperation took the form of the European Communities (most prominently the EC), another one the form of the Council of Europe (the organization that drafted the Convention).[217]
Drafting the Convention to foster understanding for human rights and the firm establishment of the rule of law in the contracting states (henceforth: Convention States), the Convention is also understood as a reaction to the rather disappointing (because of its lack of protective mechanisms) Declaration of Human Rights by the UN.
Two apparent and interrelated differences to the UN Declaration of Human Rights are (1) the smaller number of rights guaranteed in the Convention[218] and (2) the enforcement mechanism that also allows for the complaint of individuals[219].
As a first step after WWII, the Council of Europe was created in 1949 and soon afterwards (November, 5th, 1950) the Convention was opened for signature and entered into force in September 1953.[220] As of October, 2004, forty-six states have ratified the Convention making it applicable in such diverse countries as Georgia in the East, Iceland in the North, Greece and Turkey in the South and Ireland and Portugal in the West.
illustration not visible in this excerpt
Figure 3. The Member States of the Council of Europe ≈ The Geographical Area of Jurisdiction for the Court of Human Rights.
An additional characteristic that greatly influences the Convention’s efficiency concerns the incorporation of the Convention into the national legal systems of its member states. The Convention States not only differ in their ways to incorporate international treaties in national legal systems in general (namely according to the monistic vs. the dualistic theory), but also in the rank they assign to the Convention.[221] According to these different ranks, five different groups can be separated.[222] In group one, the Convention has the rank of constitutional law (Austria and the Netherlands[223]), while in group two it occupies a rank between constitutional and general law (e.g. France, Greece, Poland, Russia, Hungary) and in group three the rank of general law but with a priority in application (e.g. Sweden, Belgium, Portugal, Switzerland, Spain). More than two thirds of the Convention States fall in the first three groups and assign the Convention a higher rank than general law. In group four then the Convention has the same level as general law (e.g. Denmark, Germany, Finland, Italy and Turkey) while in group five finally the Convention is placed below the level of general laws (United Kingdom).
2.5.2. Compliance Mechanism
Like the material provisions (rights and freedoms), also the compliance mechanism and the proceedings of the Convention have changed over the course of time. Originally three institutions, the (1) Commission of Human Rights (established 1954), (2) the European Court of Human Rights (established 1959) and (3) the Committee of Ministers of the Council of Europe reviewed complaints against states invoked by other parties to the Convention or invoked by individuals, if the accused state accepted the individual’s complaint procedures.[224] The original procedure emphasized the search for friendly settlements with the Commission trying to negotiate such a settlement before a case was further pursued in the committee. If no settlement was achieved, eventually the court could be asked to decide the case.
A dramatic change resulted from the implementation of Protocol 11 and placed the court in the center of all human rights complaints. The Protocol entered into force on November 1st, 1998, with a transitional period of one year. The most significant changes were:
(a.) the new mandatory character of the individual complaint mechanism,
(b.) the part-time court was replaced by a full-time court,
(c.) the commission was abolished, and
(d.) the role of the committee of ministers was restricted.
Due to these changes, political influence was marginalized and judicial procedures – the rule of law as it was the Convention’s aim back in 1950 – now dominate the complaint mechanism. While the Commission was completely abolished, the role of the Committee of Ministers was reduced to a supervisory body for the implementation of the decisions of the ECHR. The ever increasing importance of the court is maybe best recognizable from the number of cases heard and decided by the court:
60s – 10 decisions
70s – 26 decisions
80s – 169 decisions
90s – 746 decisions[225]
2001 – ca. 14,000 new applications registered
– ca. 900 judgments, 9,000 rejections
The most important reason for this increase in cases certainly is the individual complaint mechanism which allows individuals from any of the contracting states to bring a case against a (final) decision of his own national institutions (Administration or Judiciary).[226] For countries in which no judicial review of laws exists, the ECHR also occupies the role of a substitute Constitutional Court.[227] The interpretative methods used by the ECHR and other important constitutional courts in Europe also show considerable overlap and support the idea of a harmonized judicial review system for human rights issues.[228] The decision of the court has declarative character and the responsible state party has to comply with the decision. Additionally the court can award compensation for suffered violations of the rights enshrined in the Convention. Usually, the court cannot order the state party to take specific actions and also the consequences for decisions that overrule judgments of national supreme courts are not entirely clear.[229]
PART TWO:
THE IMMIGRATION SYSTEMS OF JAPAN AND AUSTRIA
3. The Japanese Immigration System
Understanding Japan’s deportation system necessarily requires an understanding of Japan’s immigration control system and its practical application. This chapter aims at providing the necessary background information on the immigration control system including recent administrative standards and practices. In the first subchapter, the legal sources of the immigration system in Japan will be introduced and some of the basic principles outlined. The second subchapter deals with immigration, visa applications and other entry requirements, and the third subchapter concentrates on the system of available residence titles for immigrants and the respective requirements for these titles.
Finally subchapter four discusses the organizational framework of the Japanese Immigration Administration.
3.1. Legal Sources and Basic Concepts
3.1.1. Legal Sources
The purpose[230] of the Immigration Control and Refugee Recognition Act is to provide for equitable control over the entry into or departure from Japan of all persons […][231] serves as a good starting point for this chapter since it introduces the major legal source for the immigration control as well as an important basic principle of immigration control (i.e. the equitable control).
Accounting for the legal sources that shape immigration control in Japan is no easy task, because many of the detailed rules that are used by immigration officers in dealing with certain questions are still not available to the general public. There is however, a rising consciousness within the Administration (in this case the Ministry of Justice) for the need to publish internal administrative standards.
Beyond the legislative sources in the form of the Immigration Control Act (ICA), its appendices and amendments and the Special Law to the ICA, other important sources for immigration control are drawn up by the Administration and include general decrees (shōrei), e.g. the Ministerial Ordinance for the Immigration Control and Refugee Recognition Act[232], or notifications (kokuji) for more detailed questions. On an even lower level, internal administrative notifications (tsūtatsu) and internal standards (naibu kijun) occupy an important role and provide the officer in charge with detailed guidance on specific problems. Finally administrative guidances (gyōsei shidō) unique to Japan must be mentioned although, on practical grounds, their usage is more common in regulating relationships between the Administration and the commercial and the industrial sectors. On jurisprudential grounds, their role as a source of law is disputable. Administrative guidances are generally not stipulated in laws and take the form of behavioral advice, for example how the parties to a case should act. It constitutes an extralegal cooperative consensus-making tool in front of the background of bureaucratic power.[233] In immigration matters this guidance can lead the individual to apply for a residence title different from the one the alien would have preferred, in order to serve administrative goals.
On a higher level than the ICA, the Constitution and the UN Liberal Rights Covenant may supplement the above mentioned sources in extraordinary cases, and also case law serves regularly as a guideline for the Administration. In cases where the above legal sources do not suffice to decide a problem, the “natural reason” (jōri) may be invoked e.g. to fill unavoidable lacunas.[234] The natural reason or also natural order may be mistaken for some kind of reference to traditional customs, although it is more appropriately interpreted as an idea of equitable thinking – justice according to prevailing moral principles rather than the strict letter of the law.[235]
3.1.2. Basic Concepts of Immigration Control
As mentioned above, the ICA recognizes the equitable or fair control of immigration as the primary purpose of the immigration regime. Equitable or fair control, however, are ambiguous terms and not surprisingly different proponents involved in the immigration regime have proposed diverging views on what the priorities of the immigration control system actually are. The basic concepts described below are at best deferred from legal sources but stated plainly only in textbooks or academic literature.
3.1.2.1 State Discretion = Administrative Discretion?
The term ‘state discretion’ of course refers to nothing else but the sovereign rights of a state. Immigration control – the rules defining which foreigners may enter under what conditions – certainly occupies a position in the heartland of sovereignty. Correspondingly only few international regimes containing regulations on immigration questions have been developed[236], while international developments in other areas such as trade law flourish.
The Administration stresses in regards to immigration control the smooth entry possibilities for aliens profitable for the Japanese society on the one hand and the effective exclusion of aliens that pose a danger to the Japanese society on the other hand. With a broad scope like this, the Administration is not simply content with executing the law but assumes the more important role of modeling the law according to self-defined goals. The state’s sovereignty to prescribe regulations for immigration control changes into discretion for the administrative agencies entrusted with immigration control under the ultimate auspices of the Ministry of Justice. State discretion in this perception equals the discretion of the Ministry of Justice.[237]
Criticism correctly targets this understanding of sovereignty and emphasizes the distinction between those matters falling under the authority of the Ministry of Justice and those matters falling under the state’s sovereignty and therefore under the authority of the parliament.[238]
Additionally the Administration interprets the discretion for the Ministry of Justice generally as a wide discretional power opening such decisions to the influence of economical, diplomatic and political considerations. The breadth of these considerations and the impossibility to check their fair application increases the risk of arbitrary decisions.
In regard to the state’s authority to regulate the immigration and emigration of people, international standards, which also affect Japan’s legal system, have changed since the end of the WWII. The idea that a state is completely free to regulate the migratory moves of people is outdated. The freedom for foreigners to leave Japan as implied in international treaties[239] was confirmed by the Japanese Supreme Court (saikō saibansho) in a decision of the Grand Chamber in 1957.[240]
A right to immigration is neither stipulated in any international treaty nor in the Japanese Constitution or laws although there are discussions about the right to reentry. The Japanese Constitution stipulates the freedom for Japanese nationals to travel abroad which implies the right to reenter Japan.[241] For Japanese nationals the right to reenter their own country is also protected by international law, but courts acknowledged that the right to travel abroad (and therefore also the right to reenter Japan) also applies to foreign nationals residing in Japan.[242]
3.1.2.2. Correct Immigration Control
While there is obviously little dispute over the need for a correct (meaning: flawless) immigration control, differences exist in regards to derived principles such as the equal application of immigration control to individuals. With more and more people applying and entering Japan, the need to apply the existing legal stipulations equally to all applicants is discussed in regards to administrative standards e.g. for processing entry applications. Administrative standards should minimize the risk that applicants are treated differently depending on e.g. the port they arrive or other random circumstances. Ultimately non-discriminative treatment of course is essential to ensure trust in the immigration control system.
The Administration, however, still opposes the idea of publishing existing internal standards. There are also some speculations about the reasonableness of current standards that e.g. forbid only Korean nationals to apply for a change from a short term visiting visa to a different residence title or the one that allowed for severer checks of Chinese nationals that wanted to enter Japan between 2003 and 2004.[243]
Correct immigration control also suffers from more practical factors, e.g. the inadequate staffing of the responsible agencies. Due to the comparatively small number of immigrants until the end of the 1980s, the increasing number of immigrants in the 1990s was not accompanied by an equal increase in employees at the immigration offices. The simple lack of personnel therefore endangers proper decision making inside the agency and the idea that immigration officers perform highly specialized functions degenerates to an awkward phrase in the face of stacks of undecided cases. Recently the agency has indirectly acknowledged that faulty decisions exist not only in exceptional cases and accepts the resubmission of applications after the same application had been rejected before.[244]
3.2. Immigration
Due to Japan’s insular geographic position the ICA differentiates the entry (nyūkoku) into Japan from the landing (jōriku) in Japan. Entry refers to the transition of an alien into Japanese territorial waters or Japanese air space, while landing refers to the arrival on Japanese soil after a Japanese Immigration Inspector permitted the landing.[245] For instance, an alien suffering from a contagious disease might enter Japan and yet be forbidden to land in Japan during the investigation of the Immigration Inspector. Since this alien did not yet formally land in Japan, he may be pushed back to the respective country of origin easily.
However, according to Ogino there is no need for a strict separation of the terms entry and landing. In a wider usage, e.g. when referring to illegal entry, the term entry includes the meaning of landing[246] although the ICA uses the two terms distinctly. The number of foreigners entering Japan every year has greatly increased over the last decades (as shown in Figure 4 below).
illustration not visible in this excerpt
Figure 4. Number of New Entries and Reentries Between 1975 and 2003.[247]
3.2.1. Entry and Entry Requirements
As stated in the introduction above, the entry into Japanese territory happens prior to the landing on Japanese soil. Chapter Two of the ICA is entitled ‘Entry and Landing’ but refers to entry only in terms of entry prohibitions.
The two requirements necessary for entry are formulated as negative conditions, therefore baring entry to individuals that (1) do not possess a valid passport or (2) intend to land in Japan without being endorsed with the permission for landing or without obtaining landing permission.
A valid passport may be substituted by a crewman’s pocket-ledger or refugee travel documents as prescribed in the Geneva Refugee Convention. In general however, valid passports are those issued by the Japanese government according to the passport law, those issued by acknowledged foreign states (national passports) or an international organization empowered to issue passports (laissez-passer).[248] Passports issued by other organizations e.g. authorities in control of a certain territory like Taiwan, which is not officially recognized as a state, must be acknowledged by the Japanese government.[249],[250]
The alien must enter Japan before his passport expires; an expired passport does not qualify as ‘valid’ passport and therefore the alien may not enter Japan. As for lost passports, the alien may appeal to a consulate or embassy of his home country in Japan and get travel documents issued.[251] If an alien arrived without valid travel documents, she must spend the waiting time until such documents are newly issued in the international transit area of the disembarking port.[252]
The differentiation between entry and landing also affects significantly how refugees without valid refugee travel documents are treated. If such refugees are found by the authorities after their entry but prior to their landing, they can be sent back (e.g. boat people).[253] If they make it to Japanese soil, however, they can apply for a regular refugee recognition procedure.
3.2.2. Landing
Landing is the second step after the alien has successfully entered Japanese territory. In most cases e.g. when people arrive in commercial airplanes, entry and landing procedures are not visibly separated for the immigrant. In order to obtain a landing permission several requirements (negative and positive conditions) must be fulfilled. The negative conditions are usually only checked after the alien fulfills the positive conditions which are the possession of (1) a valid passport and (2) a valid visa as well as (3) the agreement between immigration reasons and residence title and (4) the agreement between intended residence time and the residence time granted for the respective residence title.[254] The question what constitutes a valid passport, was already discussed for the entry above; another important requirement for successfully obtaining a landing permit is a valid visa.
If the applicant is not yet sixteen years old at the time of the application or incapable to represent herself because of physical ailments or other reasons, accompanying relatives – if present – or other members of the same flight may file the landing application for her.[255] If no suitable person can be found, the vessel’s pilot has to represent the applicant.[256]
3.2.2.1 Visa
The visa system regulates the entry into Japan, although Japan has visa exemption agreements with sixty-one countries (as of December 2005). The visa issued at a Japanese Embassy or Consulate abroad before departure proves that the passport has been confirmed as being valid and also that the person concerned is eligible for entry. From an organizational point of view, the visa falls in the jurisdiction of the Ministry of Foreign Affairs, while the immigration procedure falls in the jurisdiction of the Ministry of Justice.
Applications for visa are in general submitted to the Japanese embassy or consulate in the country the immigrant embarks from. The basic principle is: without visa, no entry.[257] The requirements and documents for visa applications differ in the various countries and depending on the consulate officers in charge visa applications may be evaluated differently.[258]
3.2.2.1.1. Pre-visa Deliberation (sashō jizen kyōgi)
Although the consulate officer may issue a visa directly after reviewing the materials submitted by an applicant, often the so-called pre-visa deliberation takes place (depicted in the following flow chart below, Figure 5).
illustration not visible in this excerpt
Figure 5. Pre-visa Deliberation Process Starting with the Alien’s Visa Application at the Consular Office Abroad.[259]
Since the Ministry of Foreign Affairs whose consulates issue the visa generally has no information about an alien’s former residence history in Japan, the consular officer first refers a visa application to the Department for Alien Affairs in the Ministry of Foreign Affairs. This Department then asks the Department for Residence (located in the Immigration Control Section of the Ministry of Justice) for an evaluation of the individual applicant. The Department for Residence investigates whether the alien himself, his affiliate (e.g. employer etc.) or his guarantor in Japan appears on one of the corresponding black lists.[260] Additionally the responsible Regional Immigration Control Office may interview the alien’s affiliate or ask for the submission of additional data or documents. Finally, the Department for Residence informs the Ministry of Foreign Affairs of its opinion and the Ministry of Foreign Affairs usually sticks to this opinion although cases exist when the Ministry of Foreign Affairs issued visas regardless of heavy concerns voiced by the immigration section. Depending on the details of the application the pre-visa deliberation may take up to six months.
3.2.2.1.2. Certificate of Eligibility (zairyū shikaku nintei shōmeisho)
The best way to speed up the processing of one’s visa application is to avoid the pre-visa deliberation. Since immigrants that intend to immigrate to Japan for more than a short-term stay are subjected to detailed investigations, a pre-visa deliberation can be avoided only by showing that the alien is eligible for a residence title upon arrival in Japan. When submitting a certificate of eligibility along with the visa application, pre-visa deliberations are skipped and the visa is issued within weeks.
The ICA allows affiliates in Japan to pose as proxies for the prospective immigrant and file applications at the responsible Regional Immigration Control Office.[261],[262] The affiliate who acts on behalf of the absent applicant should be related to the activities mentioned in the right-hand column of the table for the residence titles.[263] Thus, instead of the applicant for the residence title ‘professor’, a staff member or faculty member of the educational institute, where the applicant wants to work, can apply for the certificate of eligibility. Similarly to the pre-visa deliberation, the Regional Immigration Control Office then investigates the background of the affiliated organization and the prospective immigrant and evaluates the immigrant’s eligibility for a residence title. The certificate of eligibility is valid for three months after its issue and the immigrant should apply for a landing permission within these three months. In cases of time consuming visa evaluations, however, the certificate of eligibility remains valid beyond these first three months.[264]
Particularly for immigrants with a previous history of deportations or those who are believed to participate in a fake marriage, the consulates or embassies in charge discretionally require additional documents. Finally, the perceived threat of terrorism since 2001 has resulted in more cautious investigations aiming to avoid the landing of radical Islamic groups which may also result in additional investigations.
The importance of the certificate of eligibility is best documented in the annual number of issued certificates. Corresponding to the steady increase of aliens entering Japan every year, the number of issued certificates rose from 222,272 in 1998 to 332,984 in 2002.[265]
3.2.2.2 Further Positive Conditions
Besides the possession of a valid passport and visa, the immigration reason must agree with the activities described in the annexed table to the ICA which lists possible residence titles for prospective immigrants.[266] The intended time of stay in Japan must also be in accordance with the time stated by the ministerial ordinance for the respective residence title[267]. As for all positive conditions, the burden of proof rests with the alien.[268] The alien therefore has to establish that her intentions and the intended length of stay conform to the respective standards, while the validity of the passport and visa must be established only if the immigration officer has reasonable doubts about their validity.
Fulfilling the positive conditions constitutes only the first step of the landing procedure; the alien also has to pass the landing inspection at the disembarkation port.
3.2.2.3 Denial of Landing
Besides positive conditions the immigration officer also has to verify that a number of negative conditions do not apply to an alien. ‘Negative conditions’ of course means that their presence bars an alien from landing. With regard to the discretionary character of this rule it is difficult to determine whether landing must or can be denied. The Japanese text is not clear in Article Five, which stipulates the reasons for a denial of landing, but in Article Seven First Paragraph Number Four it stipulates that aliens applying for landing must not fall under any item of Article Five. The (unofficial) translation uses “shall be denied” in Article Five and “must not” in Article Seven, which should be understood in the way that generally in the presence of any of the following conditions landing is not permitted; the door to a special landing permission however, may remain open in extraordinary circumstances.
Although there are numerous reasons stated in the ICA[269], they can be roughly grouped into the following five categories:
a. Health Deficiencies[270]: the first group of physical ailments are infectious diseases. The corresponding stipulation in the IAC refers to category one or two infections which include Ebola fever, the Marburg disease, the Plague, Cholera and Typhoid fever.[271] The second group of health deficiencies include people with mental defectiveness who also can be rejected during the landing inspection.[272] Since an amendment in 2004 (entry into force on August 2nd, 2004) this rule applies only to those aliens that (1) due to mental deficiencies cannot discern between right and wrong, etc. and (2) are not accompanied by designated assistants. Thus, the former general denial of landing for people with mental deficiencies, which also made it difficult for them to participate in international events like handicapped sports etc. hosted by Japan, is restricted to rather specific situations now.
b. Economical Problems[273]: the economical reasons that can lead to a denial of the landing permission are (1) the status as a pauper or vagrant and (2) the probability that the alien will become a burden for the public welfare system.
c. Security Reasons[274]: an alien’s criminal history also generally allows the denial of the landing. As a general rule all people that have received a prison sentence of one year or longer in any country (including of course a former sentence handed down from a Japanese court[275]) and all aliens convicted and sentenced for the violation of laws or regulations of any country in regards to the control of narcotics, marijuana, opium, stimulants or psychotropic substances are to be rejected during the landing inspection. For the later group, any sentence including monetary fines is sufficient.
In relation to drugs and narcotics not only a past history but also the illegal possession during the landing inspection leads to denying the landing. The illegal possession of firearms and swords or explosives has the same effect.
Additionally people who have been convicted of deviant actions like killing, injuring, assaulting or threatening other people or damaging property in times of international events like sports competitions or international conferences (‘hooligan regulation’) may not land in Japan. Besides their past deviant history, the IAC demands that they are likely to engage in any such behavior in relation to international events conducted in Japan again.[276]
Finally, aliens who engage (or have engaged in the past) in prostitution or procuring prostitutes for others or those who engage in some kind of business which is directly connected to prostitution are rejected during the landing inspection.
d. Political Reasons[277]: a general clause allows the Minister of Justice to deny landing to any person likely to commit actions against the interests or public safety of Japan (ordre public). More specifically the ICA bars individuals from landing in Japan who advocate the violent interference with the established political system. Not only one’s own activities but also the association with any kind of group or party that promotes or attempts such interferences suffices to deny landing to the alien in question. For the denial of landing, it does not matter whether the respective individual organizes activities of groups like that or whether she is a simple member. If the group encourages specific acts like assaulting, killing or injuring public officials or the illegal damage or destruction of public facilities or disputes that prevent the normal operation of security equipment of a plant or place of work, a close affiliation suffices as reason for rejecting the landing application. Close affiliation may also apply to individuals sponsoring groups without being members themselves.
e. Prohibition of Reentry[278]: Number Nine and Ten of the respective Article Five ICA finally stipulate a number of rules for the denial of landing to individuals that either tried to land in Japan within a certain period before the current landing application or were deported from Japan before. There are different time frames for the denial of landing depending on the specific provision the alien has violated during his prior landing or stay in Japan. These time frames were changed along with other amendments to the ICA in 2004 and will be outlined in the later chapter on deportation reasons (compare: 7.1.4. Deportation Measures and Entry Prohibitions).
3.2.2.4 Passing the Landing Inspection
If the Immigration Inspector has determined the validity of the alien’s passport and visa as well as the absence of any reasons to deny landing and after she has checked whether the alien planned activities in Japan are in accordance with the activities listed for the corresponding residence title, the landing inspection is completed.
The landing permission, then, is attached as a stamp in the alien’s passport. After the landing permission is granted the Immigration Inspector has to decide on a residence title and the permitted length[279] of stay for the immigrating alien. Thus, the landing procedure up to this point works – in theory – identically for all immigrants from short time visitors to long term immigrants.
3.2.2.5 Failing the Landing Inspection
In the absence of the required positive conditions or the presence of forbidden negative conditions, the immigration officer denies the landing permission to the applicant and automatically opens a hearing with the so-called Special Inquiry Officer.[280] The following table (Table 2) shows the number of aliens failing the landing inspection grouped according to the reasons of failing for the years 1998 to 2002.
Table 2: Aliens Failing the Landing Inspection between 1998 and 2002 Separated for the Reasons Provided in Art. 7 (1) ICA.
Abbildung in dieser Leseprobe nicht enthalten[281] [282] [283] [284]
Obviously false statements about the activities the alien planned to pursue in Japan or the mismatch between stated activities and the residence title of the alien constitute the most frequent reasons for failing the landing inspection. While the mismatch between the planned time of residence and the time provided in the respective Ministerial Ordinance plays an almost negligible role. Within the group of aliens failing the landing inspection because of false statements, aliens that were deemed to work illegally in Japan while holding an e.g. tourist visa constitute the largest number.[285]
The consequent hearing with the Special Inquiry Officer is an automatic consequence of the immigration officer’s refusal to endorse the alien with a landing permission.[286] The alien, therefore, does not need to file any application for this hearing but is immediately handed over to the Special Inquiry Officer.[287]
3.2.2.5.1. The Hearing with the Special Inquiry Officer
As the term[288] suggests, the hearing is conducted as an oral examination of the reasons that led the immigration officer to deny the landing. Naturally the alien himself is present at the hearing, but he also has the right to appoint a representative as proxy.[289] Both, the alien and his representative, have the right to produce evidence and to cross-examine all witnesses during the hearing. Although the Immigration Act requires the Special Inquiry Officer to prepare a record of the hearing[290], caution in regards to the correctness of this record seems advisable. Often this record contains nothing more than the denomination of the evidence and the decision whether the evidence was admitted or not in regards to the evidence produced by the alien. Because the recorded evidence is of paramount importance for the non-oral protest applications (igi no mōshide) against results of the hearing, the alien or his representative must be cautious about the details stated in the record of the hearing.[291]
Additionally to the representative, the alien may ask permission to have relatives or acquaintances attend the hearing[292], which is usually granted although generally limited to one additional person.[293]
As for the proceeding itself, the Special Inquiry Officer certainly leads the proceeding and although his task is described as neutral evaluation of those reasons leading to the denial of landing, his organizational affiliation with the immigration offices raises respective doubts. The procedural power is also clearly concentrated in the Special Inquiry Officer.
Although the alien may produce evidence, she may only ask the officer to summon witnesses. If the officer deems it unnecessary or infeasible, the alien’s request may be denied easily. Since the applicant has to use a special written form for requesting the presence of a certain witness[294], she has at least the guarantee that this form and a possible denial of the request are incorporated in the record. In the protest application, therefore, the alien may argue that because of the non-appearance of the requested witness her statements were not verified. Additionally, the Special Inquiry Officer may administer oaths and also has the right to make inquiries to other public offices or public and private organizations. The procedural stipulations in Article Ten of the Immigration Act also contain no hint for a right to a translator or other additional procedural guarantees.
Finally, the Special Inquiry Officer has to decide, whether the alien fulfills the landing requirements (i.e. that the conclusion of the immigration officer proved wrong)[295] or whether he lacked the necessary requirements. In the first case, the special inquiry officer is obliged to immediately endorse the alien’s passport with the landing permission stamp and thus grant landing.[296] In the latter case, however, the alien is once more denied landing and the Special Inquiry Officer is obliged to inform the alien about the respective reasons and the possibility of filing an objection.[297] If the alien decides not to file an objection and submits to the denial of landing, he can sign a waiver for his right to file an objection and the Special Inquiry Officer then orders him to leave Japan.[298] At the same time the captain of the vessel in which the alien arrived is to be informed.
3.2.2.5.2. Filing an Objection
Filing an objection against the conclusions reached by the Special Inquiry Officer in the hearing constitutes the last possibility for the applicant to obtain a landing permission from the Administration. After the Special Inquiry Officer informs the alien about the protest procedure the applicant has a three day period to decide and file a protest.[299] The protest must contain the reasoning why the conclusion drawn by the Special Inquiry Officer appears faulty and any other document or written evidence that the alien wishes to submit. The submission of the hearing’s record is part of the Supervising Immigration Inspector’s (shunin shinsakan) duties[300] but as mentioned above the quality of this record needs to be secured during the prior hearing. The objection itself can be submitted to the Supervising Immigration Inspector[301] and is then passed on to the Ministry of Justice for a decision. If the ‘objection’ submitted to the Supervising Immigration Inspector does not qualify as objection because e.g. no reasons for an objection are contained etc. or if it is submitted after the three day period, a deportation order is to be issued.[302]
The decision of the Minister of Justice[303] is not a single decision but twofold. First, he has to decide whether the objection is well founded or not.[304] Well founded means that the reasoning of the applicant is correct and the Special Inquiry Officer erred when upholding the decision of the immigration officer. In this case the Supervising Immigration Inspector must immediately endorse the alien’s passport with the landing permission stamp after he has received the respective decision of the Ministry of Justice.[305]
If the objection is deemed unfounded, i.e. the applicant’s reasoning is faulty and the Special Inquiry Officer acted correctly in upholding the immigration officer’s decision, the Supervising Immigration Inspector has to inform the alien and issue a deportation order.[306] If the alien does not without delay obey this deportation order, deportation procedures are to be commenced.[307]
The second decision concerns the question whether to award a special landing permission to the applicant.
3.2.2.5.3. Special Landing Permission
After the Minister of Justice has decided that the applicant’s objection is unfounded, the Minister must also decide on the question whether – because of exceptional circumstances – a special landing permission should be issued to the applicant.[308] As for this decision’s immediate effects, the decision to grant a special landing permission has the same effects as the decision that the objection is well founded, i.e. it requires the Supervising Immigration Inspector to immediately allow the alien’s landing.
The Immigration Control Act itself contains no specific reasons or standards that clarify when or under what special circumstances a special landing permission could be granted. The Administration, therefore, concluded that this decision falls in an area of completely free discretion, although some standards seem to have been developed for the practical application.
A rough categorization from the review[309] of the practical application in the presence of denial-of-landing reasons may look as follows below. As mentioned above, the reasons for the denial of landing stipulated in Article Five of the ICA are non-discretionary rules for the immigration officers. In their presence the immigration officer must deny landing and only superior instances e.g. the Supervising Immigration Inspector or the Ministry may grant an exception in form of the special landing permission. In the presence of denial-of-landing reasons, two cases can be differentiated.
1. No Certificate of Eligibility: there are cases in which the Japanese consulate or embassy in the foreign country issued visas to aliens despite the existence of denial-of-landing reasons (e.g. despite former deportations from Japan etc.). When such aliens arrived at the Japanese port and then related the denial-of-landing reasons to the immigration officer during the landing inspection, the officer denied the landing and the alien had to protest to the Minister. In cases like these, the Ministry has granted special landing permissions sporadically.[310]
2. A Certificate of Eligibility Was Obtained: Denial-of-landing reasons do not per se exclude the possibility for an alien to obtain a certificate of eligibility from a Regional Immigration Control Office in Japan. The Regional Immigration Control Office tends to deny applications for certificates to applicants with denial-of-landing reasons, particularly to those applicants with a prior deportation history. The decision on the certificate is based on an individual evaluation of the reasons for and against such a certificate. Strong reasons for issuing a certificate like marriage to a Japanese national etc. can shift the balance in favor of the applicant and allow for the issuing of a certificate of eligibility.[311] However, when the alien arrives at a Japanese port, the denial-of-landing reasons do not per se vanish, and there may be some confusion leading to the immigration officer’s decision to deny landing. An objection against this decision may then yield a special landing permission.[312]
It is also important to remember that the certificate of eligibility covers only those denial-of-landing reasons that have been reported to the Regional Immigration Control Office. Unreported reasons or reasons occurring after the issue of the certificate of eligibility are not covered. In cases like these, the alien’s application for a landing permission is likely to be denied by the immigration officer and the Minister’s decision constitutes the only way to obtain a landing permission.
The following table (Table 3) provides an overview of the number of filed protest applications and their results between 1998 and 2002.
Table 3: Objections Against the Decision of the Special Inquiry Officer to Deny Landing and Their Results.[313]
illustration not visible in this excerpt
3.2.2.5.4. Provisional Landing Permission
The provisional landing permission as stipulated in the ICA allows the Supervising Immigration Inspector to permit an alien to land in Japan, while the landing inspection is still being conducted.[314] Obviously this permission applies only to cases in which a landing inspection cannot be concluded swiftly and the alien has to wait for the hearing with the Special Inquiry Officer or for the decision of the Ministry of Justice. During this waiting period, different circumstances may lead to a reasonable claim for the alien to provisionally land in Japan. These circumstances include medical reasons or an improperly long waiting time for an administrative decision. Indeed in cases when the alien decides to file an objection with the Ministry of Justice, an application for provisional landing should be submitted, too.[315]
Since the alien is still subject of the landing inspection procedure, the Administration generally wants the alien to be available and usually employs those measures provided in the Immigration Control Act to secure the alien’s whereabouts like restrictions on the alien’s place of stay, restrictions on his area of movement[316], obligations to appear at the administrative office when summoned and the deposit of a bail[317] up to two million yen.[318]
If the Supervising Immigration Inspector has reasonable grounds to suspect an alien’s attempt to submerge from the authorities, he can also revoke the provisional landing permission and issue a detention order.
3.2.2.6 Special Cases of Landing
Besides the regular landing procedure, the Japanese immigration control system provides a number of alternative landing procedures for special cases, such as for aliens in transit or distress and crewmen etc.
The ICA recognizes two related landing permissions in cases when aliens (not crewmembers), like tourists want to enter Japan for a very restricted period of time with the immediate prospect of leaving Japan again on board of an already booked vessel.
The permission for landing at a port of call allows the alien to enter and land at a certain port and remain in the vicinity of this port for up to 72 hours after which the alien must leave Japan again.[319] The practical situation involves an alien that has booked a passage via Japan but needs to wait for his connecting passage which will leave from the same port where the alien disembarks from his prior passage. Instead of being restricted to the international transit area of the port, the alien thus may enjoy the vicinity of the port. Since the alien has only 72 hours of stay inside Japan and he is supposed to remain within the port’s vicinity, the Immigration Inspector may impose additional restrictions.
Similarly to this landing permission, the permission for landing in transit also is intended for aliens that travel via Japan to other destinations abroad. The difference from the permission for landing at a port of call is that, the alien now embarks from a port different from the one, in which he disembarked (e.g. he might arrive in Osaka and continue his journey from Tokyo).[320] Traveling via Japan, this landing permission gives an alien the opportunity to spend three days on a sightseeing tour between the disembarking and embarking port. As for possible restrictions, the Immigration Inspector may impose limitations on the transit route the alien has to follow.[321]
The landing permission for crewman as the title suggests offers permission to stay for up to fifteen days within Japan for transferring to another port or vessel but also for resting, shopping or other activities.[322] This landing permission can also be applied to a crewman that hires as crewman inside Japan and it may be issued as a multiple landing permission for crewmen who regularly serve on a vessel between Japan and other international destinations. Additionally to limiting the travel route inside Japan, the Immigration Inspector may also request the landing crewman to have his fingerprints taken for immigration control purposes.[323]
For all three of these landing permissions discussed in this chapter, the captain or the carrier of the respective vessel has to submit the application for the respective permission.
Three more special cases of landing permissions concern situations of distress or disaster. The permission for emergency landing allows an alien on board of a vessel who needs urgent medical help to land in Japan and to receive medical treatment.[324] The application for landing must also be submitted by the captain or the carrier of the vessel who becomes liable for all costs incurring during the emergency landing including costs for medical treatment, everyday expenses and funeral services.
The landing permission in the event of a disaster stipulates a landing permission for vessels in distress following international obligations.[325] This landing permission may extend to all passengers and crewmen aboard a vessel and applications may be submitted not only by the captain or carrier of the vessel but also by the local Japanese authority that conducts relief operations and affords temporary protection.
Finally, the landing permission for temporary refuge concerns aliens fleeing to Japan on the grounds laid down in Article One of the Geneva Refugee Convention after they fled from a territory where their lives, physical being or physical freedom were likely to be endangered.[326] Limitations are applicable.
3.2.2.7 Reentry (sainyūkoku)
The reentry of course refers to aliens that have stayed in Japan before and traveled abroad only temporarily. Since the right to travel abroad was acknowledged also for foreigners on sojourn in Japan[327], it was only logical to introduce special procedures that facilitate the landing inspection for reentering aliens. Thus, the Immigration Control Act offers aliens on sojourn in Japan the possibility to obtain reentry permissions.[328]
However, the reentry permission is not constructed as an individual right for the alien, but falls in the discretionary power of the Ministry of Justice.[329] The alien therefore needs to file an application at the Regional Immigration Control Office before she leaves Japan. In this application the alien has to show that she intends (1) to reenter Japan (2) before the expiration date of her residence title and that (3) she is currently residing in Japan. Besides the application form, the alien also has to bring her passport and alien registration card to the immigration office.[330]
The Ministry of Justice may then take into account the adequacy and necessity for a reentry permit, the alien’s entire behavior during his stay in Japan so far, political, economical and social circumstances as well as diplomatic considerations.[331] In other words, a broad range of conditions are to be taken into consideration, which makes an evaluation of this decision virtually impossible. Denying the reentry permission can always be justified from one of the above perspectives leaving the alien in a fairly weak position. Aliens with certain groups of landing permissions are ex lege excluded from an opportunity to file for reentry permissions. These groups contain all aliens with provisional landing permissions, and any landing permission discussed above in the chapter on special cases of landing permissions. Since these aliens did not plan to enter Japan in the first place, the exclusion of the reentry permission is only a logical consequence from their lacking intention to reenter Japan.
If the application is granted, a reentry permit is endorsed in the alien’s passport in the form of a single or a multiple reentry permit. The latter allows the alien to undertake travels abroad frequently without the necessity to apply for a new reentry permit each time. However, the period of validity for neither permit may exceed the alien’s allowed residence period or an ultimate three years for aliens without limitations on their residence period.[332] If necessary the reentry period may be extended when the alien is not able to return to Japan within the limits of his reentry period e.g. in case of hospitalization in a foreign country etc.
The simplified landing inspection exempts the alien from the obligation to obtain a visa[333] and restricts the landing inspection to checking the validity of the alien’s passport (and the affixed reentry permit) and to evaluating the presence of denial-of-landing reasons[334]. The Immigration Inspector, therefore, must not investigate the alien’s intentions for returning to Japan or whether these intentions are compatible with the alien’s residence title or planned period of residence.
3.3. Residence Titles
After passing the landing inspection, the Immigration Inspector not only endorses the alien’s passport with a landing permit but also determines the alien’s residence title and the residence period (which may be extended later). For the alien, the residence title is of paramount interest since it limits the activities an alien may pursue. Before listing available residence titles in the second subchapter some basic remarks about the system of residence titles are required. The third subchapter then shifts from the viewpoint of the residence titles provided by Japan to the perspective of potential immigrants (e.g. those coming for work opportunities or family reunification), while the last subchapter deals with changing and extending residence titles.
3.3.1. Basic Remarks and Concepts
Every system or categorization (including the system for residence titles) builds on certain underlying concepts that enable the categorization in the first place. As for the Japanese system of residence titles, I will shortly discuss the following three characteristics: (1) applicability and adequacy, (2) activity related or status based, and (3) the meaning of having no residence title.
3.3.1.1 Applicability and Adequacy
Applicability (gaitōsei) and adequacy (sōtōsei) are two important criteria that are employed for the evaluation of an alien’s residence application. Although they are not stated explicitly in the law, they do emerge from the application of the requirements stipulated in the legal sources of the immigration control system.
Applicability refers to the compatibility of an alien’s immigration intention with any of the residence titles provided in the annexed tables to the Immigration Control Act.
After applicability is confirmed adequacy operates on the next higher level and concerns the question, whether awarding residence to this particular alien under the corresponding circumstances is adequate?[335]
However, it is not sufficient to understand these two criteria as separate stages of a stepwise evaluation because applicability is more than just a prerequisite for adequacy. Since the ICA serves the purpose of providing smooth entry to those aliens profitable for the Japanese society, the groups of aliens listed in the tables for residence titles can be regarded as those groups of aliens which are principally profitable for the Japanese society. Otherwise these groups of aliens would have no opportunity to apply for residence titles given that the second purpose of the ICA is to keep aliens with negative influence on the Japanese society out. Understanding the listed residence titles as categories of principally profitable aliens means that applicability also occupies the function of indicating adequacy.[336]
An alien fulfilling the requirements for the applicability of a residence title, therefore, has good reasons to believe in obtaining the respective residence title. Thus it is sufficient for aliens in general to provide material and data that prove the applicability of a residence title. Only in special circumstances, like a prior history of deviations, the alien also needs to submit material showing that he is an adequate candidate for the respective residence title. The burden of proof for denying adequacy should generally rest with the Administration.[337]
The indicative function of applicability also plays an important role in the extension of residence titles and adequacy should generally not be questioned in the area of status based residence titles (as explained below) because of the lacking substitutability of these aliens.
3.3.1.2 Activity Related or Status Based
Although a number of principles like the difference between work related residence titles and others, or the difference between titles for the anchor alien and the titles for other family members qualify as fundaments for the categorization of residence titles, the Japanese residence titles can be best categorized along the difference between activity related and status based titles.
The twenty seven different residence titles are actually grouped into six tables but the first five of these tables define the respective residence titles according to allowed activities, while only the residence titles of table six omit limitations on the activities for the aliens.[338]
This emphasis on the allowed activities of course also requires the respective alien to apply for a change of her residence title in case the activities she wants to pursue in Japan no longer fall under the original title. For owners of unlimited residence titles, as a matter of course a similar obligation does not exist. All legal activities may be pursued, although there are still some special fields like public employment generally restricted to Japanese nationals.
The difference between activity related and status based titles also reflects back on the criteria of applicability and adequacy discussed above. As explained above, adequacy to an alien’s application for a residence title can often be denied because of substitutability. If somebody applies for a residence title to teach English in Japan, there is any number of other people – other teachers of English – that can substitute this applicant. If someone applies for residence because he married a Japanese national, there is no substitute for this person. For residence titles based on status relations, therefore, only applicability – is he genuinely married to a Japanese national – should be evaluated, while adequacy should not.[339]
3.3.1.3 No Residence Title
Given the paramount significance resident titles occupy in immigration, the detrimental effects of the status ‘no residence title’ for the alien’s legal position follow logically. Without residence title an alien generally cannot enter Japan, and an alien without residence title also sets a reason for deportation. The Immigration Control Act does not equal the lack of a residence title with obligatory deportation, though.[340] In the understanding of the Immigration Control Administration, however, an alien without residence title is an alien that should be deported.[341]
Since the lack of a residence title during the stay in Japan can be caused by a number of different reasons, the Administration’s shortcut thinking that no residence title equals illegal residence, which in turn equals deportation, is too superficial. One typical reason for the lack of a residence title is the expiration of the old residence title before a new one is issued. Generally – and in many geographic areas in particular – the immigration control is severely understaffed[342] which causes great delays in processing individual applications for residence extensions.[343] Although formally the old residence title expired and the alien resides without valid residence title, the cause cannot be attributed to the alien.[344]
There are also cases, when the alien’s application for an extension is accepted after the expiration of the old residence title. Strictly speaking the alien could not submit an application for extension under these circumstances, but administrative practice has created this exception because the only other alternatives would be to file a complete new application for a residence title or to open deportation procedures. The first alternative would immensely increase the Administration’s workload; the second might be utterly improper regarding the particular alien’s personal situation.
Beyond all these special situations, the ICA also refers to a special group of aliens that do not require residence titles. Article 2-2 stipulates that aliens may reside in Japan only in possession of a certain residence title unless Immigration Control and Refugee Recognition Act or other laws provide otherwise. One law that exempts a whole group of foreign nationals from the obligation to require residence titles is the Special Law to the ICA.[345] It concerns those former Japanese nationals from other territories such as Korea or Taiwan who lost their Japanese nationality as a consequence of the Japanese peace treaty and their offspring.[346]
Two final groups are military and civil personnel including their families from either the US military forces[347] or UN military forces[348] who all may enter and reside in Japan without residence title.
3.3.2. Residence Titles
As mentioned above, the system of residence titles bases on the difference between activity related and status based residence titles with a total of twenty-seven different residence titles. These residence titles are annexed in form of two tables to the Immigration Control Act and define the respective activity or status for the corresponding residence title. Although the ICA differentiates only between the annexed Table One (activity related) and the annexed Table Two (status based), Table One itself is separated into five sub-tables. This further separation of Table One provides a further categorization albeit much less important than the differentiation between status (mibun) based and activity (katsudō) related titles.
In order to facilitate comparison with legal sources, I will also maintain this separation in the following depiction and name the separate sub-tables of table one as Sub-tables One to Five.
Table 4: Activity Related Residence Titles
Sub-table 1:
Abbildung in dieser Leseprobe nicht enthalten[349]
Table 5: Status Based Residence Titles
illustration not visible in this excerpt
The landing inspection, or better the inspection whether the activity intended to pursue in Japan conforms to an individual residence title, is required only for some categories of residence titles. Sub-tables One and Two for instance both provide residence titles for individuals pursuing job activities in Japan. The just described landing inspection, however, is necessary only for individuals from Sub-table Two. For aliens working in Japan as diplomats, officers etc. the Immigration Inspector can skip this part of the landing inspection. Similarly among those aliens not pursuing job activities (Sub-tables Three and Four), the landing inspection is skipped for aliens coming for cultural activities or as temporary visitors (Sub-table Three), while aliens with a residence title from Sub-table Four have to submit to the landing inspection.[350]
The residence title described in Sub-table Five – specially designated activities – is also discussed in relation to an alien’s necessity of stay in Japan.[351] This necessity of stay can be understood as an extension, or rather, a supplementation of the adequacy concept discussed above. Particular groups of aliens, like foreign children older than six years adopted by Japanese parents or illegal aliens marrying Japanese nationals, who depend on staying in Japan would often find no suiting residence title. Consequentially the concept of necessary stay was evoked successfully to avoid cases like these being judged on existing administrative standards. Although the application of this concept is still rather limited, some writers see the necessity of stay as criterion to compensate for lacking adequacy of stay.[352] In their opinion, an alien should be allowed to stay and be awarded a residence title, if he proves the necessity of his stay in Japan even though the Administration might find his stay inadequate. The residence title in Sub-table Five can be handled flexibly enough to provide a tool for this approach. The following table (Table 6) shows the change in the number of residence titles between 1998 and 2002 separated according to the five sub-tables of Table One and Table Two.
Table 6: Change in Residence Titles between 1998 and 2002 for Different Groups of the Immigration Control Act.[353]
Abbildung in dieser Leseprobe nicht enthalten[354]
In contrast to the steady increase in the number of activity and status related residence titles, the number of special permanent residents is decreasing steadily. This in absolute numbers moderate decrease is more than compensated by the increase in other residents, leading to a total net increase of legal foreign residents in Japan. The decrease of special permanent residents is of course due to the special characteristics of this group which are discussed in greater detail in a later chapter.[355]
3.3.3. Typical Immigration Cases
The above categorization of residence titles only depicts one side of the coin – namely the activities offered by Japan to foreign nationals. The other side is the side of the foreign national who wants to immigrate to Japan. An alien does not in principle ask what residence title she gets, but more generally whether she can enter Japan for work (maybe at least for a limited time), whether she can enter Japan for joining her family already living in Japan or at least to visit her family or for touring around Japan’s sights or whether she can settle down in Japan for good.
In the following subchapters, hence, I want to evaluate the Japanese immigration system and its opportunities for (1) economical immigrants, (2) people seeking family reunification, (3) tourists, and (4) potential long term residents.
3.3.3.1 Economical Immigrants
In contrast to some European states like Austria, a residence title in Japan already includes the permission to engage in certain activities and a separate work permit is not necessary.[356]
A number of residence titles like ‘professor’, ‘artist’, ‘religious activities’, ‘investor or business manager’, ‘legal or accounting services’, ‘medical services’, ‘instructor’, ‘engineer’, ‘specialist in humanities or international services’, ‘intra-company transferee’, ‘entertainer’ or ‘skilled labor’ directly entitle an alien to the respective work in Japan; indeed it is the main purpose of these residence titles to allow the respective work activity. These residence titles feature different requirements, usually a mixture of education and experience that should guarantee that only professionals in these fields receive the respective residence title. One notable exception is the category ‘entertainer’, which is the single most often awarded residence title from all these professional residence titles. Entertainer also includes dancers and singers; most of them coming from neighboring Asian countries like the Philippines and often work in Japan’s red-light districts.
Other titles like ‘permanent resident’, ‘spouse or child of a Japanese national’, ‘spouse or child of a permanent resident’ or ‘long-term resident’ are not aimed directly at serving economical opportunities, but at providing aliens with e.g. the status of a wife of a Japanese national. This status should as far as possible emulate the status of a Japanese wife for its holder. Since limitations on job opportunities would thwart this intention, aliens holding these residence titles are automatically permitted to engage in any kind of work.[357] In contrast to those residence titles allowing certain work activities (those listed in the first paragraph above), the change of employers and job activities poses no problem to holders of status based residence titles. Holders of activity related residence titles, however, would need to apply for a different residence title, if the activity they want to pursue is no longer covered by their current residence title.
If the alien holds none of the above-mentioned residence titles, there is still the possibility to apply for a work permit or more accurately a “permit to engage in activities others than the ones designated for one’s residence title” (shikakugai katsudō no kyoka, henceforth: work permit).[358] Generally an alien has to apply for a work permit each time she wants to pursue a gainful activity not listed for her residence title.[359] Thus, even if the alien has acquired a work permit for activity A outside her residence title, she must apply for a new work permit when she wants to change to another activity B, which is also outside of her residence title. For international students and people in training, general work permits allowing part time employment up to twenty-eight hours per week can be issued.[360] Even aliens with short-term residence titles may apply for a work permit, if the income is necessary e.g. to pay their return tickets etc. Short-term visitors have also (very limited) possibilities to engage in activities beyond sight-seeing without applying for a work permit. Remunerations for instructions, readings or a one-time reward for respective activities that are not done professionally do not fall under the term ‘income’ as stipulated in the ICA.[361]
Due to the increasing globalization and the growing tendency of young people to experience foreign cultures on a first-hand basis, Japan has signed a number of bilateral treaties allowing working holiday visas on the basis of reciprocity.[362] In 2002 some 3,416 people from Australia, New Zealand, Canada, Korea, France, Germany and the U.K. worked in Japan for up to one year.[363] Working holiday visas actually use the residence title ‘designated activities’ from Sub-table Five of Table One, which allows the immigration authorities to flexibly award the necessary period of stay to each individual. Since working-holiday employment is based on bilateral treaties, the specific requirements e.g. age levels, necessity of citizenship or residence period etc. differ from one treaty to the other. Generally however, aliens with this visa may not work in bars, nightclubs, red-light districts etc.
3.3.3.1.1. Requirements for Work Related Residence Titles and Their Limitations
As any other provision of the immigration control system, also work related residence titles follow the purpose of the ICA to provide smooth entry for those aliens profitable to the interests of Japan. The administrative praxis has developed this ‘profitable to the interests of Japan’ into an evaluation of four different elements[364] for work related residence titles:
- Does the planned activity of the alien provide a profit (and if yes, to what degree) for the Japanese society?
- Does the Japanese society demand for the activity the alien provides?
- Could Japanese do the same activities in the place of the alien – substitutability?
- What is the nature of the activities the alien offers?
The limitations on activity related residence titles should help to control the labor market and protect employment opportunities for Japanese workers and alien workers with respective work permits who already reside in Japan. Argumentum ex contrario aliens who engage in work but do not have the center of their lives in Japan or do not destroy employment opportunities for others should not be denied entry.[365]
Since only the work activities of aliens but not their employment locations are limited, aliens face no problem when changing from one employer to another provided they engage in the same activity as before. This practice also provides a certain safeguard against inferior work environments or the exploitation of foreign workers that were likely to occur, if alien workers were bound to one employer.[366]
Nonetheless practical problems might occur when the Administration tries to determine whether the old and the new activity truly belong to the same category of residence titles. Hence, it is advisable to get into contact with the Administration before changing a job.[367]
3.3.3.1.2. Investor, Skilled Labor and Specialist in Humanities
Within the category of activity related residence titles, the residence titles as ‘investor’, ‘skilled labor’ or ‘specialist in humanities’ are the ones most often rejected.[368] One of the reasons for these rejections is certainly the lack of definitional clarity of these three residence titles compared to other activity related residence titles. Many more activities can fall under the label of skilled labor in contrast to a label like ‘religious activities’. This necessary vagueness (it would be counterproductive to enlist all activities that may fall under skilled labor etc.) creates two – probably related – tendencies. First, aliens who want to enter Japan but have no specific idea of what work to pursue in Japan are probably more likely to attempt an application for a residence title with a broad field of allowed activities. Second, the Administration knows from past experience that many aliens that do not qualify for a specific work-connected residence title try to enter by using one of the broader residence titles. Therefore, aliens applying for any of these residence titles are checked more thoroughly than others; which results in more rejections.
3.3.3.1.2.1. Investor or Business Manager
This residence title is for persons who want to run a business in Japan.[369] Regardless whether the business is already established or not, it should be intended to be permanent. The business equipment must be situated in Japan and other employees besides the investor himself are required. For managers three years of practical experience[370] in managing a business and a salary at least equal to the salary of a Japanese national in the same position is required.
The requirements for the business location generally demand a location separate from the living location. If the business is located in one’s own home, the approval of the Administration is generally more difficult to receive and additional features such as separate entrances etc. play an important role. Employees must be paid adequately and immigration officers may appear unannounced to verify the business character of the establishment.
3.3.3.1.2.2. Skilled Labor
In regard to skilled labor, the first thing to note is that Japan does not provide residence titles for unskilled labor. This legal situation is contrasted with a real-world situation of unskilled-labor shortage and the existence of more than 250,000 illegal unskilled workers in Japan. Although Japan’s economy experienced a difficult period in the nineties, the demand for unskilled workers did not significantly decline. This might be due to the declining fertility rate among Japanese or the move from a producing to a service market. Young Japanese people nowadays ask for education, a high-paying job and avoid manual work, while there are many areas such as construction or maintenance works left without the necessary man-power.
Since workers employed under the skilled labor residence title also receive a salary at least equal to the salary of a Japanese national in an equal position, this title does not allow bringing in cheap labor from other near-by countries.[371]
While the residence title as investor or business manager is basically unrelated to the nature of the business, the residence title for skilled labor is somewhat more limited. It allows skilled labor only in the areas of cooking or food preparation, architecture or civil engineering, refinement of jewelry, fine metals or furs, training of animals, probing for oil, piloting airplanes or sports. Generally the respective work object e.g. the prepared meals must have some relation to other countries than Japan and the applicant must have at least ten years of experience in his area of work (for some, three years are sufficient).[372]
3.3.3.1.2.3. Expert for Humanities or International Employee
For the expert for humanities, an alien must have at least some academic background. On a college diploma level the Immigration Administration investigates the alien somewhat more strictly, while master or doctoral degree holders usually have no problems provided their employment is in the specific field of human sciences.
The work as an international employee is described as requiring the insights and understanding of a person not who has not grown up in the Japanese culture and includes interpreters, advisors for language schools, public relations, commerce etc. with at least three years of practical experience (waived for interpreters who just graduated from university).
3.3.3.2 Family Union
The concept of family is traditionally highly valued in Japan’s social system and although the right to family life per se is not explicitly mentioned among those rights guaranteed in the Japanese Constitution, it is protected in the UN Covenant of Liberal Rights[373]. Regarding family reunification, I will separate the question of residence opportunities for spouses from those for children and also those of Japanese nationals from those of other foreigners legally residing in Japan.
3.3.3.2.1. Spouses
3.3.3.2.1.1. Spouse of a Japanese National (nihonjin no haigūsha)
While so-called international marriages (kokusai kekkon) had an extraordinary touch a few decades ago, Japan’s rapid internationalization led to a significant increase of international marriages. The term international marriage as used in the Japanese literature refers to either (1) the marriage of two Japanese nationals abroad (broader meaning), or (2) the marriage between two people of different nationalities (narrow meaning).[374] Typically, however, the term ‘international marriage’ refers to the marriage between a Japanese national and a foreigner. Here I will focus exclusively on the last meaning of international marriage with one of the two partners being Japanese and the other being a foreign national.
For these international marriages, the marriage procedure itself depends on whether the marriage is established in Japan or in a foreign country. Although the reader may choose to skip the following explanations and jump straight to the problems of acquiring a residence title once the marriage is formally established and not contested, a deeper understanding for the problems of aliens marrying Japanese nationals requires some knowledge about the marriage procedure itself.
3.3.3.2.1.1.1. Marriage in Japan
The formal requirements for establishing a marriage in the Japanese legal system are very relaxed.[375] In the case of Japanese nationals, the signature of the two partners and the respective documents from the family registration suffice. For marriages that include one foreign national additionally a certificate of the legal capacity to contract marriage (koninyōken gubishōmeisho), the alien’s passport, a travel affidavit and a nationality certificate are required.[376] Sometimes the office also demands the alien identity card and a copy of the original alien registration, although these are not mandatory.
The marriage is contracted between the two spouses and then registered at the local county office where the officer in charge confirms the necessary documents and the two marriage partners give their consent and signatures. The declaration at the family registry therefore has constitutive (sōsetuteki) character.
Problems most likely arise in relation to the certificate of marriage capacity. This document is required to prove that the respective alien fulfills the necessary requirements to contract a marriage, i.e. that she is of legal age and unmarried. The legal age can easily be verified in the passport and other documents, so the main function of this certificate is to prove the alien’s status as unmarried.[377] Problems arise when the respective document in a country does not qualify as a certificate of marriage capacity for the Japanese authorities. The Administration has issued central guidelines[378] that list those documents issued in each country of the world and the respective documents of several countries (e.g. Pakistan, Bangladesh, etc.) do not suffice.
The major reason is the use of affidavits in these countries, while the Japanese Administration expects a document issued by a public authority like the family registry. Affidavits are not public papers and are therefore only exceptionally recognized, as in the case of affidavits from the US. In cases including not recognized affidavits, the local county office usually accepts the marriage registration with reservation to the validation of the certificate by the legal office.[379]
Once the marriage is established at the local county office, it is also registered in the Japanese spouse’s family registry and thus can be proved for the later residence title application.
3.3.3.2.1.1.2. Marriage Abroad
The procedures for marriages abroad of course depend on the local laws which cannot be discussed here. However, if the respective couple plans to move to Japan later, the marriage must be proved to the Japanese authorities. Regardless of the time when documents are submitted to the Japanese authorities, the marriage is considered established at the moment it was established according to the local law of the place of marriage. The Japanese partner has the obligation[380] to submit the respective marriage papers to the Japanese consulate or embassy abroad which then informs the respective family registry in Japan. This declaration, however, has only declarative (hōkokuteki) character because the marriage exists also without the registration at the family registry.
Although the declaration has only declarative character, refraining from registration makes it more difficult to prove the existence of the marriage later. A particular development concerns Japanese men working abroad, marrying foreign nationals without reporting the marriage to the respective consulate and then returning home to Japan. In this case, the Japanese men – although legally married – appear to be single according to their family registries and there are cases of men marrying again in Japan without getting divorced from their foreign spouse before.[381]
Hence the legal departments generally acknowledge declarations made by the foreign spouse, if the Japanese spouse is unwilling to live up to his obligations under the family registry law.[382]
3.3.3.2.1.1.3. Residence Title
The residence title for the spouse of a Japanese national is the status based ‘spouse of a Japanese national’ title from the annexed Table Two of the Immigration Control Act. Once proof of the marriage is obtained, the alien can apply for this residence title regardless whether the former residence was inside or outside of Japan.[383]
As for the residence period, the respective Ministerial Ordinance provides time periods of six months, one year or three years.[384] In practical usage, the immigration officer first issues the one year residence period and upon an application for extension the three year residence period, although the lack of published standards opens the door to the influence of the immigration officer’s personal opinion on the respective decision.[385] A six month residence period is chosen only, if problems concerning the authenticity of the marriage are expected. There is no limit on the number of extensions a foreign spouse can apply for.
Problems for the acquisition of the residence title however derive from the Administration’s reading of the immigration laws. The ICA provides that an alien residing under a status of residence specified in the left-hand column of Table II [here: ‘spouse of a Japanese national’] may engage in the activities of a person with the civil status or position described in the right-hand column corresponding to that status.[386]
In the case of the ‘spouse of a Japanese national’ residence title, the right-hand column does not provide any more detailed hints for the activities and thus in general it is assumed that there are no limitations on the range of activities a foreign spouse may pursue inside Japan. The Immigration Control Administration acknowledges this interpretation but further assumes that the foreign spouse who holds the title of a ‘spouse’ not only acquires rights (like unlimited work permission) but also duties, namely the duties of a spouse. These duties materialize in the mutual support spouses owe each other and – in order to draw a separation between an authentic marriage and a marriage on paper only – the Administration demands a common residence between the spouses. Additionally it includes criteria such as age differences and sexual ability in its decision making.[387]
3.3.3.2.1.1.4. Separate Residence and Divorce
As mentioned above, the Administration considers separated residences as symptoms of a marriage on paper or dysfunctional marriage that now longer corresponds to the marriage as the basis for the alien’s residence title. Since the Administration rarely changes residence titles during the period of validity[388], separated residences pose a problem only when the alien applies for an extension of the residence title. Earlier the Administration denied the title as spouse during separation and issued a ‘short-term’ residence title, if the alien declared that efforts to repair the marriage were under way. This was a constant point of criticism[389] until finally case-law started to modify this situation.
After some case law from District Courts (chihō saibansho)[390], the Immigration Control Administration refrained from denying the ‘spouse’ residence title even to those foreign spouses that applied for extensions right in the middle of divorce procedures.[391]
However, a recent Supreme Court decision seems to shift this situation again in disfavor of the foreign spouse, since it determines that:
[T]he possible acquisition of the residence title ‘spouse of a Japanese national’ bases on those activities the respective alien plans to pursue in Japan, namely those activities that are expressed through the special status relationship called marriage. This special relationship between the two sexes is founded on leading a life together, built on the serious intention to form a spiritual and physical unity. In the case that the marriage still exists legally, but the above described intention is lost in one or both spouses and thus the characteristic of the life together is lacking and an expectation for recovery absolutely cannot be found in the circumstances, the respective marriage can only be deemed as lacking its social and authentic basis.[392]
An alien participating in a marriage like this does no longer fulfill the requirements for the ‘spouse’ residence title.
Although the decision is phrased vaguely, it seems to support the former position of the Administration. It is difficult however to draw clear conclusions from it. For foreign spouses applying for an extension of their residence titles during separate residences, arguments and materials that support their intention to repair the marriage might strengthen their application.[393]
When the divorce from the Japanese national is already formally acknowledged, the foreign spouse should inform the immigration office and apply for a change of the residence title. In reality, however, the foreign spouse does not experience problems, if she continues to live in Japan until the expiration date of the residence title. Even if the immigration office gains information about the divorce, it usually does nothing to stop the spouse from residing in Japan until the expiration of her residence title.[394]
If the foreign spouse decides not to remarry within the residence period but wants to continue to live in Japan after the divorce, a change of the residence title is necessary. In cases like these, the existence of and the providing for children is of great importance. If children from the marriage exist, they usually hold Japanese nationality and thus the foreign spouse, who provides care and education for these children, is allowed to continue her stay in Japan under either a long-term or a permanent resident title.
If no children exist or the foreign spouse has no part in their upbringing and care, the divorced spouse can still apply for the long-term residence title.[395] There is however, the problem to show that the alien’s life-basis for now and the foreseeable future is situated in Japan.
Cases when the Japanese spouse dies during the marriage are generally treated in the same way as cases of divorces. The residence title ‘spouse’ no longer is appropriate and the alien has to change to one of the other residence titles that enable a long term stay in Japan.[396]
3.3.3.2.1.2. Spouse of a Foreign National
For spouses of foreign nationals, immigration into Japan is possible only, if the anchor alien[397] holds a valid residence title. Depending on the residence title of the anchor alien, the residence title system provides two possibilities to join the anchor alien in Japan.
3.3.3.2.1.2.1. Spouse of a Permanent Resident (eijūsha no haigūsha)
For spouses of permanent residents the Immigration Control Act provides the residence title ‘spouse of a permanent resident’. The advantage of this residence title over the resident title ‘dependent’ (discussed below) is its character as a status based residence title, therefore granting unlimited access to the labor market.[398] There are no additional internal standards published for this residence title and it applies also to spouses of special permanent residents. The residence period in general is limited to a maximum of three years (identical to the spouse of a Japanese national).
3.3.3.2.1.2.2. Dependent (kazoku taizai)
If the anchor alien holds no permanent residence title, her spouse must apply for the ‘dependent’ residence title to enter Japan. The Immigration Control Act allows spouses of anchor aliens with any of the residence titles listed in the first four Sub-tables of Table One to apply for a residence title as ‘dependent’.[399] Thus, if the child of an anchor alien arrives as dependent, his spouse cannot apply for the residence title ‘dependent’ herself.
In regard to spouses of anchor aliens holding a residence title as ‘college’ or ‘pre-college’ student, however, the legal provisions have been practically modified by a Ministry of Justice Ordinance.[400] According to this Ordinance, spouses of aliens with these two residence titles are – contrary to the law – no longer able to apply for a residence title as dependent. The aim of this provision was to stop foreign college or pre-college students from settling down permanently. If the alien’s family is still living in the home country, the alien may find it more compelling to return to his home country instead of looking for work on the Japanese labor market.[401]
Since the title as ‘dependent’ is directly based on the anchor alien’s residence in Japan and the personal relationship to the anchor alien, the termination of the anchor alien’s residence or the end of the personal relationship (divorce, separation, death) results in the lacking applicability of the ‘dependent’ resident title.[402] In cases like these the foreign spouse has to leave Japan and return to her home country.[403]
For income based work, the holder of a ‘dependent’ residence title needs to apply for a work permit.
3.3.3.2.2. Children
In regard to residence opportunities for children several characteristics must be taken into account. The first concerns the question whether, “One of the parents holds Japanese nationality?” In such cases also the child might be entitled to acquire Japanese nationality or to some preferential access rules for immigration into Japan. Secondly, do children of parents with foreign citizenship have the opportunity to join their parents in Japan? Thirdly, how are adopted children treated?
3.3.3.2.2.1. Children with one Japanese Parent – Acquisition of Japanese Nationality
The most important question in regards to the residence opportunities for children with a Japanese parent concerns the possibility that also the child – by virtue of being born as child of a Japanese parent – acquires Japanese nationality.[404] The nationality law provides that a child from a Japanese mother or father acquires Japanese nationality.[405] The question of legitimate or extra-marital children does not per se influence the parent-child relationship as determined by the nationality law, although a legitimate child has easier practical access to Japanese nationality than an extra-marital child.
Generally, the acquisition of nationality for children of Japanese mothers is unproblematic. Since the mother-child relationship is acknowledged at the time of birth, the child acquires Japanese nationality automatically regardless of the father’s consent, actions or even whereabouts.
The situation gets more complicated, however, if only the child’s father is Japanese. Although the nationality law provides the same unlimited opportunity for such a child to acquire Japanese nationality, the confirmation of the father-child relationship might cause problems.
Legitimate Children. Here legitimate children are those born from a marriage between a Japanese male and a foreign mother. If a child is born from such a marriage, the law presumes that the Japanese spouse is also the father of the child.[406] Thus, the child acquires Japanese nationality at the time of birth, even if the father dies before the child is born.[407]
Illegitimate Children. Illegitimate children miss the protection of favorable legal presumptions, since it is not clear who their father might be. Even if the mother names the father of the child at birth, no legal consequence (for the child’s nationality) derives from this declaration. The Japanese father, therefore, has to acknowledge (ninchi) the respective child.[408] Depending on whether this acknowledgment is declared before or after the child’s birth, consequences are different.
1. Acknowledgment before birth: since the child is acknowledged before birth, the father-child relationship is already established at the time of birth and thus the child acquires Japanese nationality at birth. As for the form of the acknowledgment, it can be declared according to Japanese laws or according to the laws of the mother’s country. However, in either case protective clauses, e.g. the consent of other persons than the mother to the acknowledgment, must be fulfilled.[409] After the birth a new sheet for the child is attached to the family registry entry of the father which facilitates later procedures like an adoption or a change of names.
2. Acknowledgment after Birth: The critical difference to the legitimate child or to the child that was acknowledged before birth is the lack of a clearly established father-child relationship at the time of the child’s birth. The child, therefore, cannot acquire Japanese nationality at birth and the idea that a later acknowledgment retrospectively creates the formal conditions necessary at birth is rejected.
While this is the general situation for acknowledgments after birth, there are some specific exceptions. One exception applies to fathers that did not acknowledge their child before birth because the mother of the child was still married to another man at that time. At the time of birth according to the legal presumption the mother’s spouse is considered father and if this ‘father’ is a foreigner, the child cannot acquire Japanese nationality even though the child’s real father is Japanese.
A Supreme Court ruling[410] and a consequent notification[411] (tsūtatsu) of the Immigration Control Administration have augmented this situation somewhat, if the real father acknowledges the child as soon as possible[412] after the legal presumption about the father-child relationship between the child and the mother’s spouse has been invalidated (e.g. by court order). If the legal presumption is invalidated within three months after the child’s birth and the real father acknowledges the child within another fourteen days after this invalidation the child is deemed a Japanese national retrospectively with birth.[413]
A more general notification[414] (tsūchi) allows a male who believes to be a child’s real father to submit an acknowledgment prior to the child’s birth, if he is not the spouse of the child’s mother at the time of birth. Since the submission of the declaration is certified with the date prior to the birth of the child, the later validation[415] of the submitted declaration allows the child to acquire Japanese nationality at birth.[416]
If all these possibilities to acquire Japanese nationality for the child of a Japanese national fail, the acknowledgment after birth can serve for the acquisition of a residence title as ‘spouse etc. of a Japanese national’ (see below).
3.3.3.2.2.2. Children without Japanese Nationality
This group of children contains not only children with two foreign parents, but also children of Japanese parents that could not acquire Japanese nationality. Children born in Japan enjoy a sixty day residence-title-free period but need to apply for a residence title, if they need to continue their stay in Japan beyond these sixty days.[417] Children that want to immigrate into Japan need a residence title for immigration. The following table (Table 7) shows the available residence titles.[418]
Table 7: Available Residence Titles and Affected Children
illustration not visible in this excerpt
Child of a Japanese National. If the child of a Japanese national could for whatever reason not acquire Japanese nationality, an acknowledgment through the father (in the case of an illegitimate child) enables the child[419] to acquire the residence title ‘spouse etc. of a Japanese national’.
A Ministry of Justice notification[420] (tsūtatsu) from 1996 helped to establish a fixed treatment of cases with truly Japanese children and their caretaking parents. According to this notification the child acquires the ‘spouse etc.’ residence title and the caretaking[421] mother the residence title as ‘long-term resident’. This treatment applies regardless of the current residence status of mother and child. This later provision may be called a truly progressive approach since it allows not only caretakers and children coming to Japan with short-term visas to switch to the respective long-term resident titles but also illegal residents to legalize their stay.
A not acknowledged child, however, is treated as the child of two foreign parents with unknown father and the respective residence title for the child depends on the residence title of its mother.
Children of Foreign Parents. As mentioned before, the residence title for the child depends on the residence title of its parents; in case the two parents hold different residence titles e.g. if they are not married and the child was born in Japan, the child can use either parent as anchor alien.[422] Almost all foreign residents with activity related resident titles receive the same ‘dependent’ residence title for their children.
The period of residence for the child corresponds to the residence period of its parents (e.g. if the parent has a three year residence period, the child gets the same).[423] Children of ‘diplomats’ or ‘officers’ etc., however, receive the same residence title as their parent who is working as diplomat or officer.[424]
Although children with foreign citizenship born in Japan are not entered in the Japanese family registry, the respective parents bear an obligation to report the birth of their child to the local authorities within fourteen days of the birth and also to their own consular office.[425] If the parents plan to continue their residence with the child beyond sixty days after the birth of the child, they need to apply for the child’s residence title within thirty days after the birth and should file an application for alien registration within sixty days after birth. Since the child is residing legally in Japan for sixty days after its birth, no residence title is required, if the parents plan to leave Japan within these sixty days.
Adopted Children. An adopted child of foreign parents with valid residence titles in Japan is treated equally to a biological child and thus qualifies for the ‘dependent’ residence title, if all other conditions are fulfilled.
If Japanese parents, however, adopt a foreign child, the respective residence title for the child can either be ‘spouse etc. of Japanese nationals’, ‘long-term resident’ or ‘dependent’. The ‘spouse etc.’ residence title is generally reserved for special adoptive children falling under the particular regime of the special adoptive children system. Only if the adoption system in the foreign country, i.e. the child’s home country, is very similar to the Japanese special adoptive children regime, a child adopted according to such a system can acquire the residence title ‘spouse etc.’. An example for such a system can be found in Kazakhstan.[426]
Since a notification[427] (kokuji) of the Ministry of Justice in 1990 the regular title for an adopted child is the ‘long-term resident’. This residence title is awarded not only to adopted children of Japanese nationals but also to adopted children of all aliens holding any of the residence titles in Table Two. It contains one important limitation, though. The adopted child’s subjective right to the ‘long-term’ residence title is limited to children under the age of six at the adoption.[428] For children older than six years, the Administration may – based on discretion – award the ‘long-term’ residence title but there is no subjective right to it.
An adopted child older than six years that could not acquire the ‘long-term’ residence title may still qualify for the ‘dependent’ residence title, if it is unmarried and maintained by its adoptive parents; minority is not required.
3.3.3.2.3. Nikkeis – Special Children of the Japanese People
The answer to the question ‘who belongs to a certain group?’ is one of the determining characteristics of the respective group. The same applies to a society or a polity. Like the era of the Aussiedler in Germany, Japan saw a time when many of her nationals emigrated to other states (namely the Americas) to find a new home. According to a paper from the Japanese Ministry of Foreign Affairs, the total number of Japanese emigrants before WWII reached more than 780,000; another 260,000 emigrated after WWII.[429] Since their emigration, population growth led to a total of about 2,5 Mil. Nikkeis who live in today’s Americas.
The question “how best to deal with the offspring of these emigrants from earlier days?” touches the heart of the Japanese identity debates – a debate that cannot even be outlined in this short subchapter. Here the scope is solely to depict the conditions and possibilities of residence Nikkeis find in today’s Japan. Since the Japanese nationality law emphasizes the ius sanguinem principle it is equally important to keep in mind that many offspring of emigrants still hold the Japanese citizenship and thus enjoy free entrance and residence rights to Japan.
The word ‘Nikkei’ is fairly comprehensive and includes not only second generation emigrants but also further generations, i.e. all those with a relation (kei) to Japan. “Nikkei has multiple and diverse meanings depending on situations, places, and environments. Nikkei also include people of mixed racial descent who identify themselves as Nikkei. Native Japanese also use the term Nikkei for the emigrants and their descendants who return to Japan.”[430]
The immigration control system established a number of measures for the smooth entry and residence of Nikkeis far beyond the immediate offspring of former emigrants. Since Nikkeis can reside under a number of different residence titles in Japan, it is somewhat difficult to determine the precise number of Nikkeis in Japan. The biggest overseas Nikkei communities exist in Brazil and Peru. The number of residents from Brazil and Peru that reside longer than ninety days in Japan (and thus need to register in the alien registry system) reached about 274,000 and 54,000 at the end of 2003, respectively.[431]
The following figure (Figure 6) contains the most important relationships. Since Japanese nationals enjoy unlimited entry, the top position in the figure is a Japanese emigrant which can be either the original emigrant or his offspring, if she holds Japanese citizenship.
illustration not visible in this excerpt
Figure 6. Available Residence Titles (bold) for Nikkeis and their Families.[432]
The current system of residence titles for Nikkeis was established in the nineties. Both residence titles available to Nikkeis – the ‘spouse etc’ and the ‘long-term’ residence title – feature above all an unlimited access to the Japanese labor market.
Economical motives for opening Japan to the Nikkei generations should be considered since Nikkeis provide exactly the kind of labor force the Japanese labor market lacks – young workers who are ready to work in such areas as construction, manufacturing etc. and agree to trade-off their high educational levels (relative to other Brazilians) with high income provided in the low level jobs they occupy in the Japanese labor market. The employment of Nikkeis offers additional advantages such as language compatibility (although the Japanese proficiency level of Nikkeis decreases gradually) and support for the Japanese ideal of Japan as a land of a homogenous people (allowing entry to a huge number of alien workers from other parts of Asia would undermine this ideal).
A notification[433] (kokuji) in 1990 finally provided also secure residence titles (‘long-term’) for the families of Nikkeis down to the third generation. Children in the fourth generation may also acquire a ‘long-term’ residence title but only as long as they are minors, unmarried and true children of a third generation Nikkei.[434] All ‘long-term’ residence titles should be awarded for at least one year at the first application and extended to three years at the first renewal.[435]
3.3.3.3 Short-term Visitors
Generally the short-term residence title is intended for international tourists visiting Japan’s sights, but it’s equally used for business trips, participation in cultural and sporting events and others. Since many activities including lectures etc. do not fall within the scope of employment (compare with FN 361), short term teaching or advising activities etc. are also covered by the short-term residence title. Among the activities listed for short-term visitors in the commentary to the Immigration Control Act are sight-seeing, entertainment and transit, recreation and medical treatment, participation in competitions, family visits, company inspection, academic activities, etc.[436] Aliens may of course use the short-term residence title to enter Japan in order to prepare the basis for a later and different residence in Japan (e.g. by setting up the lease contracts and preparations for a business). The importance of the short-term residence title is documented in the simple fact that over 90% of all residence titles awarded each year are short-term residence titles.[437] Sight-seeing (about 51% or 2,4 million in 2004) and business (about 26% or 1,2 million respectively) are the two major reasons indicated at the landing inspection.
In general this residence title is distinguished from others by its usual limitation to non-work activities and to a prior intention of a short stay in Japan.[438] When passing the landing inspection the alien also receives a designated period of time for staying in Japan, this should correspond to the activities he wants to pursue during the short-term stay in Japan. This period is either fifteen, thirty or ninety days.[439]
Since the short-term residence title also should help to promote international tourism to Japan, the requirements for this residence title are kept simple and consist only of a valid return ticket, a valid passport and data proving that the living costs during the intended stay in Japan are covered.[440] A visa is generally required but with a number of countries visa waiver programs exist; a certificate of eligibility for the short-term residence title cannot be obtained.
Unrelated to the above-mentioned aims, the short-term resident title has been employed for a number of other usages such as[441]:
a. The Preparation Time for an Alien’s Departure: since the short-time residence title offers only three prefixed residence periods, however, lately the ‘designated activities’ residence title has been more widely used for aliens who currently are in Japan without a valid residence title and want to leave Japan.
b. To Bridge the Time between Two Residence Titles: particularly if the current residence period threats to expire while the Administration is still processing an application for the change of a residence title.
c. In Cases of Unavoidable Waiting Periods: if the alien e.g. lived as ‘spouse’ in Japan, gets divorced from the Japanese spouse and wants to marry another Japanese national but has a legal waiting time (such as Philippines) before a second marriage can be contracted.
The early, fairly liberal use of the short-term residence title for aliens who switch from one residence title to another has been tightened recently. Changes from the short-term residence title to any other residence title in general require “special unavoidable circumstances”.[442] These unavoidable circumstances[443] refer to circumstances emerging after the alien’s entry in Japan under a short-term residence title, when these circumstances make it appropriate not to demand the alien’s departure and later return but to award a continuing residence in Japan.[444] Prospective students that enter Japan for a university entrance exam (as short-term visitor) and pass the exam are one typical example and in regards to the change from short-term residence title to other residence titles a fairly recent notification (tsūtatsu) supports such changes, if the new activity is imminent, i.e. starts within approximately one month.[445] The short-term residence title is open for renewal only in exceptional cases.
3.3.3.4 Long Term Residence Titles
This subchapter provides a short overview on the residence titles available to aliens that desire to settle down in Japan. Since residence possibilities for family members were considered already in the prior chapter on family union, this chapter will omit all references to the residence title ‘spouse of a Japanese national etc.’ which usually also includes the intention of a long term stay in Japan.
Thus the two remaining residence titles in the Japanese immigration control system that suit the purpose of long term residents are the ‘long-term’ resident title itself and the ‘permanent’ residence title. A final step – the acquisition of Japanese nationality – will not be discussed here.
3.3.3.4.1. ‘Long-term’ Residence Title (teijū shikaku)
Already in the subchapters on family relations and Nikkeis we have seen some examples for the application of ‘long-term’ residence titles. The corresponding description of this residence title however does not limit it to family members of Japanese nationals but includes all “persons for whom the Justice Minister in consideration of special reasons awards residence for a designated residence period”.[446] The average number of ‘long-term’ residence titles for entry purposes changes annually although usually remaining in the range of 20,000 to 30,000 a year.[447]
Since the Ministry of Justice refused to publish respective standards to clarify what special reasons would allow for a successful application, ‘long-term’ residence titles were sometimes rejected in very similar cases.[448] A number of notifications finally clarified the administrative practice in regards to circumstances deemed favorable in order to receive the ‘long-term’ residence title.
The most important of these notifications (kokuji; No. 132 of 1990) provided the following categories of aliens eligible for a ‘long-term’ residence title:
- Indochinese refugees, if they were
- maintained in Japan by a Japanese or legally residing relative or
- working in a foreign-Japanese company or an embassy or
- working as employee of a Japanese for a longer period of time or were residing in Japan as student or researcher at the respective time or
- having trustworthy foster parents
- Vietnamese that applied to enter Japan for family reunification under the regime of the UNHCR memorandum of May 30th, 1979, and their accompanying family
- 3rd generation Nikkeis
- 4th generation Nikkeis, if either their grandmother or grandfather held Japanese nationality at some time
- The spouse etc. of a person born as child of a Japanese
- The spouse etc. of a person residing as ‘long-term’ resident with at least one year residence period in Japan
- A true child, still a minor and unmarried, that is maintained by a Japanese national, a ‘permanent’ resident, a ‘long-term’ resident, a ‘special permanent’ resident or their spouses
- An adopted child younger than six years maintained by a Japanese national, a ‘permanent’ resident, a ‘long-term’ resident or a ‘special permanent’ resident
- According to a notification[449] (tsūtatsu) from 1996 for aliens residing in Japan under the short-term residence title who maintain and take care of the acknowledged child of a Japanese national, e.g. in cases of unmarried women working in Japan who give birth to the child of a Japanese.[450]
- Additionally since the 2004 amendment of the ICA also recognized refugees that reside irregularly in Japan
- An internal standard also allows aliens that were smuggled into the country and, thus, had completely avoided all landing procedures to apply for a ‘long-term’ residence title, if they have a continuous stay of more than twenty-five years[451].
The above listed cases refer to aliens that in general should be awarded the ‘long-term’ residence title. Although there still seems to be no subjective right, the ‘long-term’ residence title for the above listed groups of aliens should be denied only in the presence of exceptional reasons. The ‘long-term’ residence title also is not limited to these cases, though. If other individually compelling circumstances exist, the Minister may award a ‘long-term’ residence title. For these individual circumstances several elements like (1) the necessity of stay, (2) the unavailability of other, more suitable residence titles, and (3) considerations of equitable control are helpful.
The necessity refers to situations like the maintenance of a marriage or one’s family life and not to the necessity to continue one’s work etc. Equitable control here refers to situations in which one member of the family receives a status based residence title, another member however can not receive a similar title and would be forced to reside under a much less favorable residence title.[452]
The secure establishment of one’s own life-basis within Japan also qualifies as a special reason for the ‘long-term’ residence title. However, there are no certain standards after how many years or under what additional requirements an alien may have his application for a ‘long-term’ residence title granted.[453]
Although the ‘long-term’ residence title offers unlimited access to the labor market, its residence period is still limited to one or three years.[454] Even long-term residents thus have to apply for a regular extension of their residence titles, which implies regular checks by the Immigration Administration and a potential refusal.
It is therefore difficult to evaluate the nature of the ‘long-term’ residence title. Its place in the appended table for status based residence titles, its denomination as ‘long-term’ residence title and the freedom to pursue any (legal) activities may cause aliens to view it as a residence title of an own category or as a next step to legal security. While the first activity related residence title is fairly restrictive, the ‘long-term’ residence title appears to free the alien partly since it allows pursuing any work activity. Thus, it seems to be a step between activity related and ‘permanent’ residence title. However, from a legal perspective the ‘long-term’ residence title is something of an oddity. Despite its name and its place in the appended table, it is still part of the temporary residence titles. Moreover, and this is also visible from the above-listed groups of aliens that qualify for a ‘long-term’ residence title, the ‘long-term’ residence title is meant for certain groups. It was installed to facilitate the entry and stay of Nikkeis and although the number of people with a ‘long-term’ residence title is considerable, legally it still is a special measure for special groups.
3.3.3.4.2. Permanent Resident (eijūsha)
The ‘permanent’ resident title then offers the additional security, the ‘long-term’ residence title cannot provide. Holding a ‘permanent’ residence title frees the holder from the obligation to continually renew her residence title while also providing unlimited access to the Japanese labor market. However, the drawbacks are the corresponding requirements to receive it. Basically there are the following three elements[455]:
- good moral standing
- economical independence
- profitable to Japan
The good moral standing demands that the respective applicant has no prior history of deviations or societal difficulties including a good tax paying record, i.e. the applicant has fulfilled his public duties to Japan. Other proofs for a good moral standing like guarantors or witnesses for the alien’s reputation or good morals are not required.
Economical independence concerns of course the financial situation of the applicant. The alien has to show that she either owns sufficient assets to live in Japan without becoming a burden on the social welfare system or that she has the necessary skills and abilities that allow her to be employed in a job with sufficient income. Finally, the permanent residence of the applicant must be profitable to Japan. In other words, what are the profits for Japan compared to the situation when the applicant holds only an activity related residence title? After the applicant has submitted her application for a ‘permanent’ residence title, the immigration control conducts a very strict and rigorous investigation.[456]
Obviously all three elements contain strong discretionary elements and since the Immigration Administration so far has refused to publish any detailed standards and stopped to publish successful applications, abuses and arbitrary decisions cannot be ruled out. Without regard to special circumstances, it seems that about twenty years of continued residence in Japan are required for permanent residency.[457]
A step forward to more transparency was the publication of standards how to deal with certain applications for a change into a ‘permanent’ residence title.[458] Note also, that the ‘permanent’ residence title can be acquired only after residing an appropriate time within Japan[459] ; in other words it is not possible to apply for a ‘permanent’ residence title from outside Japan (in contrast to all other residence titles).
According to this standard, ten years of continuous[460] residency in Japan is the basic minimum. However for certain groups, faster alternatives are provided:
- For students graduating from a Japanese university and entering the Japanese labor market after graduation: five years since the change of the residence title into the work-related residence title.
- Partner, true or adopted child of a Japanese national, a ‘permanent’ resident or a ‘long-term’ resident: three years residence in Japan after the marriage[461] for the spouse, and one year residence for a child.
- Recognized refugees: five years of residency
- ‘long-term’ residents: five years residency after the ‘long-term’ residence title was approved
- Persons with special contribution to the Japanese culture, economy, society, diplomacy and sports etc.: five years of residency
If the alien receives a ‘permanent’ residence title, he has to change his alien registration within fourteen days at a city hall. The ‘permanent’ residence title then offers the following merits[462]:
- no limitations on the residence period enabling a continuous residency in Japan except for deportation reasons
- no limitations on the job market
- in case of applicable deportation reasons, the alien has an advantageous position to receive a special residence permit
- facilitated access for one’s spouse and children to the ‘permanent’ residence title
- serves as a proof that the alien has his life basis in Japan, which in turn might be helpful in social and economical settings.
3.3.3.4.3. Special Permanent Resident (tokubetsu eijūsha)
Besides the ‘long-term’ and the ‘permanent’ residence title, there is one more status that allows a continuous stay in Japan and provides additional merits even compared to the ‘permanent’ residence title. The ‘special permanent’ residence status, however, is limited to a certain group of people; aliens in general can not apply for a ‘special residence’ status.
3.3.3.4.3.1. Historical Origins
Who these special permanent residents are, can only be understood in connection with Japan’s foreign policy and the history of Japan’s immediate neighbors Korea and Taiwan during the twentieth century.
As noted in the introductory part, Japan annexed the Korean peninsula in 1910 and established a colonial rule for the next thirty-five years[463] until Japan’s surrender at the end of WWII. In the first eight years of colonialization, Japan severely infringed on the rights of Korean landowners and first registered their properties before these were partly confiscated later. Further improvements in infrastructure like the building of more and better roads in Korea only served to export large proportions of the rice produced in Korea to Japan and led to further exploitation of the remaining Korean farmers.[464] After the Second Sino-Japanese War (1937), Japan’s aim was to annihilate Korea as a nation[465] and Koreans were forced into labor or military service in Japan and abroad.
During the course of these events, two different groups of Koreans “immigrated” to Japan. The first (about 800,000) were Koreans that moved to Japan in the earlier years after the annexation, after they or their families had lost their lands or economical foundations. They immigrated to Japan to start over and escape poverty at home.[466] This stream of immigrants continued until about 1939, when they were followed by large numbers of Koreans (about 1 million) forcibly brought to Japan in order to work in mines, tunnel projects or under other detrimental work conditions.[467] At the end of WWII a total of more than two million ethnic Koreans lived in Japan. When Japan had to renounce all claims to her former colonies, the inhabitants of the relinquished territories were perceived as non-Japanese and problems arose with immigrants from these territories that had lived inside the Japanese main Island since long before the war started.
These people – Japanese nationals at this time – were then stripped of their Japanese nationality after the Peace Treaty in 1952 and put in a legal limbo because Japan neither acknowledged North nor South Korea as sovereign states.[468] Although many of the Koreans had moved back after the end of the War, about six hundred thousand Koreans decided to stay in Japan because of having no life-basis in Korea and because of the difficult economical and political situation in Korea at that time.[469]
These Koreans who had lived continuously in Japan as Japanese nationals before the end of the War and who were then stripped of their Japanese nationality after the Peace Treaty in 1952 form the core of today’s special permanent residents. The second important group consists of people from Taiwan which fell under Japanese rule in 1892. Also this group lost their Japanese nationalities after the Peace Treaty.
3.3.3.4.3.2. The Special Immigration Control Law[470]
A more exact definition of who qualifies as special permanent residence is contained in the Special Statute for the Emigration/ Immigration Control of People separated from their Japanese Nationality on the basis of the Japanese Peace Treaties[471] (henceforth: Special Immigration Control Law).
According to this law, people who lost their Japanese nationality on the basis of the peace treaties are[472]:
Persons who lost their Japanese nationality on the day when the peace treaties with Japan according to the stipulations in these treaties first enter into force (henceforth: date of entry into force of the peace treaties) and who fall under one of the following numbers:
1. persons with a continuous residence in Japan from prior to September 2nd, 1945,
2. persons who were born between September 2nd, 1945, and the date of entry into force of the peace treaties and have continuously resided in Japan after their birth and whose mother or father has continuously resided in Japan from September 2nd, 1945, until the respective date of birth (if he or she had died before the birth of the child, then until the death of this person) and falls under either of the two following groups (a) or (b):
(a) persons losing their Japanese nationality on the day of entry into force of the Peace Treaties according to the stipulations in the peace treaties with Japan
(b) persons who have deceased until the day of the entry into force of the peace treaties or lost their Japanese nationality after the date of their birth but before the entry into force of the Peace Treaties and would have lost their Japanese nationality on the day of entry into force of the Peace Treaties according to the stipulations in the Peace Treaties with Japan had the death or loss not occurred prior to this.
The special permanent residence status therefore applies to[473]:
- Korean and Taiwanese persons having resided continuously in Japan before September 2nd, 1945, who lost their Japanese nationality as a consequence of the entry into force of the Japanese Peace Treaties on April 28th, 1952.
- Children of the above persons born between September 2nd, 1945, and April 28th, 1952, continuously residing in Japan, who lost their Japanese nationality on the same grounds.
- Children of the above persons born and residing continuously in Japan after the entry into force of the Peace Treaties
- Grand-children and further generations in direct lineage from persons who lost their Japanese nationality as a consequence of the entry into force of the Peace Treaties born and continuously residing in Japan.
The Special Immigration Control Law which was passed in 1991 – more than forty-five years after the war had ended – allowed for a securer special permanent residence status which certainly constituted a late but decisive step forward.[474] The special permanent residence title is not limited to the original persons who lost their Japanese nationality due to the Peace Treaties but extends to their descendants and following generations.
However, what seems an advantage at the first sight is actually only a necessary step because the Japanese nationality law, which is based on the ius sanguinem principle, denies these offspring Japanese nationality. Even among those Koreans that qualify for Japanese nationality many decide against naturalization because it would mean separating from their Korean nationality.
The term ‘offspring’ here refers not only to immediate children but also all later offspring that derive in direct descent from a person who lost his Japanese nationality due to the Peace Treaties. All intermediary generations between the newborn offspring and the original person who lost Japanese nationality, however, must have been continuously domiciled in Japan until the birth of the newborn offspring.[475]
Since the law does not specify any territories, it applies to former North and South Koreans as well as former Taiwanese.
Not unlike the nationality law (based on the ius sanguinem principle), the status as ‘special permanent’ resident involves a hereditary element. Marriage with Japanese nationals consequently often eliminates the ‘special permanent’ residence status at least for the children of such a couple who often acquire the Japanese and not the Korean nationality.[476] Thus, the number of ‘special permanent’ residents is generally decreasing while the number of ‘long-term’ and particularly ‘permanent’ residents is increasing (Figure 7).
illustration not visible in this excerpt
Figure 7. Development of ‘Special Permanent’ (SPR), ‘Permanent’ (PR), and ‘Long-Term’ (LTR) Residents Numbers between 1998 and 2002.[477]
The continuous decrease in the number of ‘special permanent’ residents looks even more dramatically when considering relative distributions. From the end of WWII until the 1950s, ‘special permanent’ residents accounted for approximately 90% of all aliens registered in Japan.[478] Since then the decrease in their total number and particularly the continuously growing influx of new immigrants (so-called “newcomers”) caused their relative proportion to shrink to some 26% in 2002.
3.3.4. Change (henkō) and Renewal (kōshin) of Residence Titles
This last subchapter in the chapter about residence titles deals with the change and renewal of residence titles. The concepts of applicability and adequacy as explained above[479] play an important role in both areas.
3.3.4.1 Change of Residence Title
The three basic requirements for a change of one’s residence title are (1) the current possession of a residence title, (2) the applicability of the new residence title to the individual circumstances and (3) reasons to acknowledge the adequacy of the change.[480] For a change from the ‘short-term’ title to any other title special, unavoidable reasons are necessary in addition.[481]
Applicability is mostly the evaluation whether the individual circumstances e.g. the alien’s employment and activities fit the desired residence title. Adequacy includes a more subjective evaluation, although the existence of applicability should assume the function of indicating adequacy; the Immigration Administration principally retains the interpretation that the adequacy decision falls into the discretionary area of the Justice Minister. However, in the everyday practice usually only proof for the applicability of the desired residence title needs to be submitted. This practice is based on the indication function of applicability. Only in cases where adequacy becomes questionable, the Administration asks the applicant to submit further material. Thus, three important consequences for the treatment of adequacy problems arise[482]:
- The burden of proof for lacking adequacy rests with the Administration,
- If doubts about the adequacy arise, the applicant should have the opportunity to provide further information,
- Reasonable grounds for refusing adequacy must be given.
Although generally a change of residence titles is open to current holders of any residence titles, holders of some titles[483] encounter difficulties. For different reasons the Immigration Administration considers the titles of ‘researcher’ and ‘entertainer’ as well as those for ‘official’ and ‘diplomat’ as unchangeable.[484] ‘Entertainer’ and ‘researcher’ are two residence titles for which the immigration control a priori establishes certain quotas including the number of possible renewals.[485] Changes from these residence titles into others would create disorganization. However, in special unavoidable circumstances (analogue to the ‘short-term’ residence title) applications should be accepted. The problem with ‘official’ or ‘diplomat’ is the special nature of these two residence titles. First of all, there is no residence period set for these titles, i.e. they are unlimited. Second, while holding these residence titles, several legal provisions are not applicable to their holders (i.e. in relation to diplomatic immunity etc.). A change of the residence title to a different title while still working e.g. as a diplomat is not only disadvantageous for its holder but also creates confusion for the treatment of such aliens by public authorities.
Additionally to the treatment described above, a number of internal administrative standards exist that e.g. allow ‘intra-company transferees’ to apply for other work related residence titles (since 1998) or university graduates to change to work related residence titles.[486],[487]
An application is usually processed within four to twelve weeks after the alien submits the application personally at the respective Regional Immigration Control Office[488] ; if it takes longer than four weeks the probability that problems have arisen is high.[489] The alien can engage in the activities covered by the new residence title only after the change is approved. If she wants to start the new (work related) activity already before the approval, she needs to apply for a work permit.[490] In certain cases the Administration may also accept a resubmission of an application after the first identical application was turned down. Resubmissions might be possible, if key facts have changed after the refusal (e.g. instead of separate residences spouses live in a common household again) or the refusal based on the lack of submitted material.[491]
3.3.4.2 Renewal of Residence Titles
In principle, the renewal or extension of residence titles is considered an exceptional measure because the residence period designated at the time of entry in Japan should allow the alien enough time to fulfill the corresponding activity.[492] In reality however, the extension of residence titles is a common and standardized procedure applied in a routine fashion to a great number of cases.[493] Nonetheless not only the change of residence titles but also the renewal of residence titles falls within the scope of broad administrational discretion.
The following three basic conditions must be fulfilled:
- At the time of application for a renewal and at the time of approval the residence titles must be identical.
- Applicability of the corresponding residence title.
- Adequacy of the residence title.
Since the residence title does not change from before the approval to after the approval, the applicability of the identical residence title could be denied only in exceptional cases. Adequacy, however, may be evaluated more critically, if the alien had problems (e.g. was involved in some form of criminal activities) during her prior residence period. If she actually received a sentence but was not deported for some reason, adequacy at the next time of a renewal will likely be refused. In cases other than that the indication function of applicability allows the alien to expect a renewal for the continuation of the same activity.
In regard to short-term residence titles, a renewal is usually only granted in exceptional cases like the hospitalization of the alien during his stay in Japan.[494] The renewal for all other residence titles can be granted up to three years, although except in cases of status based residence titles the Administration usually issues shorter validity periods. Another exception is the ‘designated’ residence title which can be renewed flexibly for up to a maximum of five years.[495]
Additional problems may arise from internal standards in the Administration that allow the renewal of certain residence titles only up to a certain number of times. These standards are not published but were seemingly loosened in 1998.
If the application is not granted and the period of residence expires before or at the day of the refusal, the deportation procedure including detention can be started immediately.[496] The usual procedure in these cases, however, is to advise the alien to apply for a different residence title like ‘short-term’ or ‘designated activities’ in order to have time for settling her affairs and to lawfully depart from the country.[497]
Although the alien’s residence becomes unlawful the day after her residence period expires, the Administration has established a system of ‘ special acceptance’ (tokubetsu juri) for renewal applications that are submitted after the expiration.[498] This practical approach allows submitting a renewal application within sixty days after the reasons for an application emerge or as soon as reasons (for which the alien is not responsible e.g. accidents, illness…) that prevented the submission have ceased to exist.[499] An additional requirement is a high probability for the approval of the application. If the application is approved, the new residence period connects immediately to the former residence period making the stay continuously lawfully.[500] Because the special acceptance is a purely administrative measure, it is handled quite differently by different regional immigration control authorities.
3.4. Organizational Framework
In this last subchapter on the Japanese immigration control system, I want to provide an organizational overview of the Immigration Administration, which is responsible for executing the material provisions explained in the earlier chapters. From the perspective of local jurisdiction the Administration can be separated in the Immigration Control Section located within the Ministry of Justice itself, the Regional Immigration Control Offices and their outlets etc., while from a functional perspective Immigration Inspectors in a broad sense including Special Inquiry Officers and Supervising Immigration Inspectors can be separated from Immigration Control Officers, who occupy the role of a police force for immigration control purposes.
3.4.1. Immigration Administration – Organizational Structure
Besides the Immigration Control Section within the Ministry of Justice, there are four different types of institutions which in total form the Japanese Immigration Administration (Figure 8). These are the (i.) Immigration Control Centers (one for each of three different regions of Japan), (ii.) Regional Immigration Control Offices (eight offices), (iii.) District Offices attached to the Regional Immigration Control Offices (five offices) and (iv.) smaller branch offices attached to Regional Immigration Control or District Offices (eighty-one offices).[501]
illustration not visible in this excerpt
Figure 8. Immigration Administration Separated into Types of Offices.
3.4.1.1 Immigration Control Section
The Immigration Control Section located in the Ministry of Justice is not only responsible for deciding individual cases as superior instance but also plays an important role in the formulation of Japan’s immigration policy and the preparation of new legislation. Furthermore, it holds the usual authority given to Japanese administrative offices to issue standards, guidelines and general notification in order to supplement legislative stipulations. The chart below provides an overview.
illustration not visible in this excerpt
Figure 9. Organizational Structure of the Immigration Control Section in the Ministry of Justice.[502]
While obviously the Section Chief heads the Immigration Section within the Ministry, the Advisor (shingikan) bears the main responsibility for all immigration control affairs.[503] The General Affairs Department plays a major role for integrating information provided by/and to other organizations and also controls personnel affairs. Additionally, the leader of this department and the above-mentioned Advisor define the main thrust of future immigration control policies.
The Immigration and Residence Department additionally handles the agendas listed above, as well as information requests coming from the Ministry of Foreign Affairs concerning pre-visa deliberations. Thus, it is here that a black list of unwanted aliens and affiliates in Japan is maintained and constantly updated, while detailed investigations in individual backgrounds are deferred to the applicable Regional Immigration Control Office.
Finally the Immigration Control Police Department must be mentioned because of its leading influence on policy formulations. The head of this department assists – in cooperation with the head of the general affairs department – the Advisor when planning fundamental immigration policies.[504]
3.4.1.2 Regional Immigration Control Offices
However, most immigration control cases are not decided by the Immigration Control Section in the Ministry of Justice but on a lower level, namely in the Regional Immigration Control Offices. The tendency to defer decision making from the level of the Ministry (which is stuffed with cases) to the next lower level has become visible e.g. in the 2001 amendment of the ICA[505] and its application rules.[506] Among others, decisions about special residence permits were deferred to the heads of Regional Immigration Control Offices.[507] This tendency is likely to continue, if the number of cases brought to the Ministry rises again.
Representative for the general structure of the different Regional Immigration Control Offices, the structural outline of the Tokyo Immigration Office is presented below (Figure 10).
illustration not visible in this excerpt
Figure 10. Structural Outline of the Tokyo Immigration Office.[508]
The practical autonomy since the implementation of the 2001 amendments to the ICA has increased considerably and thus the chiefs or heads of the Regional Immigration Control Offices enjoy fairly extensive decision making power. The additional autonomy, however, is also accompanied by negative effects like an increasing disorder or disharmony among the various regional Immigration Control Offices.[509] As for the two vice-chiefs, they represent the later discussed functional separation between Immigrations Inspectors and Immigration Control Officers.
3.4.1.3 Immigration Control Centers
The Immigration Control Centers represent the third important part of the Immigration Administration. The translation of ‘Immigration Control Centers’ as well as the corresponding Japanese expression[510] is somewhat insufficient since it conceals the primary purpose of these centers as detention facilities. The more accurate name translates as ‘Immigration Control Centre for the Detention of Immigrants’.[511] There are three such centers in Japan; one located in East Japan (Ushiku city in Ibaraki Prefecture), one in the so-called West Japan area (Ibaraki city in Osaka District) and one in the very West (Ōmura City in Nagasaki Prefecture). Compared to the Immigration Control Section and Regional Immigration Control Offices, the organizational structure of the Immigration Control Centers is somewhat simpler (Figure 11).
illustration not visible in this excerpt
Figure 11. Organizational Structure of Immigration Control Centers.[512]
Without foreclosing the later chapter on detention and the associated problems, it needs to be mentioned that lawyers criticize the treatment standards in these detention facilities.[513] The treatment bases on a Ministry of Justice decree from 1981[514] for detained suspects in general (not only immigrants). This decree, however, is phrased in very general terms and can only be seen as a crude outline; the specific treatment regulations depend on the staff in the different Immigration Control Centers. Thus, specific treatment regulations that prescribe e.g. the treatment of detained subjects in case of illnesses or incidents exist but they are not published and reasonable worries exist that detention conditions are not always as good as they could be.
3.4.2. Functional Structure
The functional structure in this chapter refers to two separations in the positions within the Immigration Administration. The first difference concerns the one between Immigration Inspectors (nyūkoku shinsakan) in general[515] and the Immigration Control Officers (nyūkoku keibi); the second difference concerns the different ranks of Immigration Inspectors.
The differentiation between Immigration Inspectors and Immigration Control Officers is important because of its functional consequences. Immigration control officers constitute something like a police force – a law enforcement force – specialized for immigration agendas. Their major employment areas are the revelation of illegal immigrants often referred to as ‘crackdowns’, the guarding of immigration detention centers, the enforcement of deportations and the investigation of ICA violations. Immigration inspectors on the other hand work as civil officers and thus their major task is the examination of applications filed under the immigration control system like applications for landing, residence titles, changes or extensions of residence titles etc. The following figure shows the gradual increase in the number of public officers in the Immigration Administration (Figure 12).
illustration not visible in this excerpt
Figure 12. Changes in the Numbers of Immigration Administration Officers (Min.Sec. refers to the Officers Working in the Ministry of Justice’s Immigration Control Section).[516]
While the numbers of immigration inspectors and control officers has been rising somewhat, the number of officers working in the Immigration Section of the Ministry of Justice has declined since 1985.[517] As mentioned earlier, many competences were deferred from the Ministry to Regional Immigration Control Offices but the Immigration Section still deals with most of the more difficult cases concerning special landing permits or special residence permits etc. Given the dramatic increase in the number of foreigners landing and residing in Japan during the last decades (compare with Figure 4), the cautious hiring policy particularly in the Ministry itself seems inadequate.[518] Extensive waiting periods of more than one or two years especially for more complicated cases are the consequence.[519]
As for the second functional differentiation – the ranks within the Immigration Inspectors – the three ranks with important functional consequences for the immigration control are (i.) Immigration Inspector, (ii.) Special Inquiry Officer and (iii.) Supervising Immigration Inspector. The hierarchy within these three ranks was already explained e.g. in relation to failing the landing inspection. The basic inspections i.e. the examination at the immigration counter when an alien arrives in a Japanese port are conducted by the Immigration Inspector. Routine checks, simple examinations, a larger number of filed applications and their speedy processing characterizes this work. Subjected to the time pressure created by queues of people waiting at the immigration counter, complicated or more time consuming examinations are passed on to the next higher level – the Special Inquiry Officer. At the level of the Special Inquiry Officer a complete examination and thorough investigation of the alien’s application is emphasized and only if the alien does not agree with the decision of the Special Inquiry Officer she may file an application with the Supervising Immigration Inspector. Not all applications involve all three steps and in some cases the alien has to appeal immediately to the Supervising Immigration Inspector after her application has been refused by the Immigration Inspector. Because of the large degree of administrative discretion that generally characterizes the Japanese Immigration Administration the Supervising Immigration Inspector can also allow the submission of applications after their respective deadline was passed or resubmissions of already rejected applications.
4. The Austrian Immigration System
After the introduction into the Japanese immigration control system in the previous chapter, I now want to give a similar overview on the Austrian immigration system. In order to avoid any confusion, I will use a structure similar to the one employed in the chapter on the Japanese immigration control system. Thus, the first subchapter deals with the legal sources of the immigration system and some basic remarks on immigration control in general. The second subchapter then describes the immediate act of immigration, i.e. of crossing the border into Austria, which includes the visa system and the respective entry requirements as well as denial-of-entry reasons.
The third subchapter moves on to the system of residence titles and the respective requirements. Similarly to the above overview on the Japanese system, I will separate the residence titles as stated in the Austrian alien laws from the residence opportunities as sought by individual aliens. For these residence opportunities I will use the same four categories of immigrants (1) seeking employment (2) coming for family reunification, (3) short-term or (4) long term stays in Austria as detailed in the Japanese system. The last chapter is reserved for organizational issues.
4.1. Legal Sources and Basic Remarks
4.1.1. Legal Sources
The basic and most important legal source for the current Austrian immigration system is the so-called Alien Act.[520] The Alien Act contains regulations about the entry and departure of aliens, passport requirements, visa requirements, residence and settlement permits, deportation orders, special rules for EEA citizens, special rules for relatives of Austrian citizens, detention and rights of detainees, search and seizure of residences, procedural rules and rules governing the authority of state agencies and the use of alien data. Additionally it also covers the rules on the alien registration system.
This comprehensive Alien Act[521] entered into force on January 1st, 1998, although some parts entered into force later.[522] Like in many other countries in Europe, the alien law belongs to the category of laws that are changed and amended quite often. Since its entry into force, the Alien Act has been changed about a dozen times. An important general decree issued on the basis of the Alien Act is the Implementation Decree to the Alien Act[523] in form of a Ministerial Ordinance. Generally, the Ministry responsible for implementing the Alien Act is the Ministry of the Interior but the implementation decree is a joint decree with the Ministry of Foreign Affairs because it involves rules on the visa system.
New Legislation
Despite these fairly extensive changes in the recent past – the change into a comprehensive law that encompasses all areas of alien affairs and several new regulations such as the Integration Agreement – the conservative government in 2005 decided to re-enact the Alien Act and other laws related to foreigners (e.g. asylum law, etc.). In this recent decision, the government split the comprehensive Alien Act again into two different laws – one that emphasizes the competency of the police force in alien affairs (e.g. acts of coercive force like deportation, rejections, etc.) and one that contains regulations for the residence of aliens (requirements for residence titles, etc.). Consequently, these laws were named (1) the Alien Police Act (Fremdenpolizeigesetz)[524] and the (2) Settlement and Residence Law (Niederlassungs- und Aufenthaltsgesetz)[525]. Although these laws were published as one package with a new asylum law and several other amendments on August 16th 2005, not all of the corresponding changes have entered into force as of 1st of January 2006. Thus, for the time being and for those procedures which were started in 2005 and have extended into 2006, the currently valid Alien Act is still the major point of reference.
In the following overview and particularly later when dealing with Austria’s deportation system, I therefore will explain the situation based on the current Alien Act and add important changes provided by the new laws in appropriate places under the heading of ‘Changes in 2006’. Additional problems arise for the citation of the legal sources. Even those regulations whose contents have not changed will be located at different places in the new laws. Thus, not only have their article numbers but also their respective locations in the law (from the current Alien Act to the new Alien Police Act or the Settlement and Residence Law) have changed. As far as possible these changes will be indicated in corresponding footnotes. One more reason for keeping the changes in separate sections is the tendency of the government to amend details of the new legislation after its re-enactment. Thus, the new law has been amended already before it even entered into force.[526]
The reasons provided by the government for the new laws are changes in the corresponding EU law, the addition of territorial limitations, changes in the deportation detention system, new regulations for family reunification and amendments to the Integration Agreement regime. More detailed information on the aims of the amendments and the failures of the current system can be found in the individual subchapters.
Other Legal Sources
Other important laws dealing with more confined and special aspects are the Foreign Nationals Employment Act[527] and the Asylum Law[528]. The first regulates the occupation of foreign nationals on Austrian territory[529] and the later the recognition of refugees according to the Geneva Refugee Convention.
Other specific general decrees in form of ministerial ordinances are the Settlement Decree[530], the Health Certificate Decree to the Alien Act[531] and the Integration Agreement Decree[532]. The Settlement Decree is re-issued every year and determines the annual settlement quota in form of a cabinet decision.
As for legal sources on a higher level than general laws, constitutional laws and international laws need to be taken into account. Particularly international and supranational laws and regimes exercise a strong influence on Austria’s immigration system. This includes the European Human Rights Convention and EU legislation in general as well as the Schengen and Dublin treaties in particular on a European scale, and several other international treaties in and beyond the United Nations framework.
Despite the absence of a stare decisis principle, the influence of case law emanating from the Constitutional (Verfassungsgerichtshof) and Administrative Court (Verwaltungsgerichtshof) is far from negligible. Given the high probability that administrative decisions similar to those smashed by either court in the past, would be smashed again, the Administration in general adheres to the court interpretations also in future applications.
4.1.2. Basic Remarks
Without going into any depth, I want to remark on two basic features of the Austrian Administration that are not unique to the immigration system but general, salient characteristics. These are the (1) federal principle and the (2) rule of law principle. These principles, although found in many countries carry their own particular meanings within the Austrian legal system. Although their influence reaches far beyond the administrative branch, I want to restrict this discussion to their special meaning for the Austrian Administration. Since these principles underlie the Immigration Administration as well, clearly their understanding facilitates understanding the immigration system itself.
4.1.2.1 The Federal Principle
Since Austria is constituted as a federal republic, the Austrian Constitution separates strictly between federal and state competencies and institutions. For the Administration this means that also the implementation and execution of federal or state laws is separated and administrative acts are either part of the State or the Federal Administration.[533] This has important consequences e.g. for the compensation for unlawful administrative acts which can only be sought from the ultimate responsible entity – the state or the federation. Generally it also means that the state or the federation can only act through its own institutions although important exceptions in that regard exist. Indeed, it is the indirect administration (mittelbare Verwaltung) – one of the exceptions to this general notion – that plays a vital role also in the Immigration Administration. Indirect administration means that exceptionally state institutions execute federal agendas and/or vice versa. Thus, functionally the state office turns into a federal office because it executes federal agendas.[534]
Regardless of the just mentioned exceptions, the federal principle demands that there are no mixed organizations, i.e. organizations that are both federal and state organizations at the same time, that appeals from a state to a federal agency and/or vice versa do not exist and that no state agency can order a federal agency and/or vice versa.[535]
Thus, the administrative reality is characterized by a side by side existence of state and federal agencies. As long as these agencies have distinct competencies and deal with very separate affairs, this form of administration can be seen as a desirable form of decentralization that prevents that single offices accumulate too much administrative power. However, in many areas including the immigration system state and federal competencies are entangled and the execution by different offices is responsible for some inefficiencies. Procedural complications like those depicted later in the discussion of settlement permits challenge the side by side organizational structure of State and Federal Administration. Particularly for foreign applicants it is not always clear where to apply for what permit, although the merging of the residence law in the comprehensive Alien Act in 1997 improved this situation somewhat.
[...]
[1] Kötz, Comparative Law, 1999, p. 753.
[2] Zweigert/Koetz, An introduction 3, 1998, p. 3.
[3] Hoecke/ Warrington, Legal culture, 1998, p. 495.
[4] Idem, p. 496.
[5] Kötz in idem, 1999, p. 755.
[6] Zweigert/ Koetz in idem, 1998, p. 10.
[7] Kötz in idem p. 758.
[8] Glenn, Vers un droit comparé intégré ?, 1999, p. 849, hints at the possibility for countries with less developed legal systems to use the easy availability of ‘advanced’ foreign law to help boosting internally desirable results e.g. in the area of human rights. The idea of referring to “better” solutions also in public law, therefore, should not be abandoned too hastily.
[9] Zweigert/ Koetz in idem, p. 15.
[10] In Europe comparative law indeed may help to find a European common law and a new common lingua franca in which the different legal solutions in the different legal systems are considered simply as variants of one common theme building on the common past (Roman law). Kötz in idem, p. 764c.
[11] Glenn in idem, 1999, p. 843c.
[12] Kötz in idem, 1999, p. 762.
[13] Glenn in idem, 1999, p. 846.
[14] Zweigert/Koetz in idem, 1998, p. 15c.
[15] Idem p. 40.
[16] Hoecke, Hohfeld and comparative law, 1996, p. 186.
[17] Context of discovery vs. context of justification.
[18] By virtue of adopting the German civil code and other legal instruments, Japan is grouped into the civil law family here. Hoecke/ Warrington in idem, 1998, p. 499.
[19] Research on the legal structure of Eastern European states after the collapse of the communist systems showed that they mostly fit into the Roman-Germanic tradition albeit displaying a developmental gap caused by the socialistic period.
[20] Idem, p. 501c.
[21] Hondius, The Judiciary, 1994. p. 99.
[22] Although the appointment of judges also differs within the common law system, it generally bases on a merit system with judges nominated from among practicing attorneys, while the appointment in civil law systems bases on a career systems with law graduates entering the profession soon after graduation. Judges for higher courts then are also selected from within the Judiciary. Differences in the judicial organization exist mainly in form of specialization in civil law systems versus a unified “all-in-one” supreme court in common law systems. As for the other areas of differences, Hondius maintains that on the side of the common law the law making function of the Judiciary was recognized rather recently, legislation plays a minor role, there is little reference to academic writings, the style is more narrative and fact drawn, the civil procedure is usually oral and there is a strong use of juries.
[23] Idem, p. 103.
[24] Hoecke/ Warrington in idem, 1998, p. 501.
[25] Carozza, Uses and misuses, 1998, p. 1218. The European Level also helps with another development however. Institutions like the European Court for Human Rights but also other EU institutions not only further the use of comparative law itself, but also the development of a common meta-language of comparative law. In the European context legal borrowing i.e. the integration of legal concepts from different legal cultures results in a common conceptual understanding (Hoecke, in idem, 1996, p. 192).
[26] Carozza in idem, 1998, p. 1218.
[27] Before taking the criticism of the court too far, one has to acknowledge the reasons for the court to employ the comparative method. There are essentially two reasons, one of them doctrinal and one pragmatic. The doctrinal reason can be found in the preamble of the convention which emphasizes the common ground and heritage. The convention therefore is much less an imposed superstructure than an expression of the member states’ common ground. The pragmatic reason is the need for the court to have its decisions implemented by the convention’s member states. The court’s decisions, therefore, must be perceived as legitimate decisions. The court, thus, is placed in the center of the conflict between concrete, consent-based reality and normative ideals external to the states. Carozza in idem, 1998, p. 1226c.
[28] Jōri (the order of things) is also a recurring theme in the Japanese legal literature.
[29] Hoecke/ Warrington in idem 1998, p. 514 et sqq.
[30] Idem, p. 519.
[31] Idem p. 520c.
[32] Idem, p. 521.
[33] Idem, p. 522 et sqq.
[34] Fauvarque-Cosson, La Réponse, 2003, p. 533.
[35] Glenn in idem, 1999, p. 841.
[36] Reimann, Beyond national systems, 2001, p. 1104.
[37] Bermann, Le droit comparé, 2003, p. 520.
[38] Idem, p. 524c.
[39] Reimann in idem, 2001, p. 1106.
[40] Bermann in idem, 2003, p. 523.
[41] Glenn in idem, 1999, p. 849.
[42] A two-step comparison: first comparing obligations and practice and in the second step comparing these differences among different states.
[43] Carozza in idem, 1998, p. 1234; Bermann in idem, 2003, p. 528.
[44] Article 38 (1) lit. c of the Statute of the International Court of Justice
[45] Kötz, in idem, 1999, p. 760.
[46] Reimann in idem, 2001, p. 1116c.
[47] A descriptive comparison will always result only in same/different statements, which are interesting for the scientific community but less so for e.g. a judge who has to adjudicate law and not to compare foreign and national law. Other disciplines, e.g. international private law, not only constitute of academic writing but also of a normative set of rules with “real world” impact. This additional impact creates a source of legitimization for these other systems, while comparative law remains purely scientific. Fauvarque-Cosson in idem, 2003, p. 532.
[48] Bermann in idem, 2003, p. 527.
[49] Hoecke, in idem, 1996, p. 188c.
[50] Idem, p. 196c.
[51] Yet other candidates include the theories of Pospisil and Arnoud as well as an ideal type theory building a concept’s ideal (or prototypical) type from the core communalities of a concept’s phenotypes in different legal systems. The communal elements in their absolute form constitute the concept’s ideal type and different legal systems can be analyzed according to their degree of divergence from this ideal type.
[52] Zweigert and Koetz in idem, 1998, p. 32.
[53] Idem p. 44.
[54] Konijnenbelt, Discours de la methode, 1994, p. 122.
[55] Le Loi-Kokkini, idem, p. 125.
[56] Groot/ Schneider, Das Werturteil, 1994, p. 57.
[57] Zweigert/ Koetz in idem, 1998, p. 45.
[58] In contrast to the tertium comparationis which is the base of the comparative research and might include criteria like function, structure or consequences, the tertia valutationis are those criteria employed for the critical evaluation aiming at a necessarily subjective evaluation.
[59] Idem, p. 61.
[60] Idem, p. 59.
[61] Zweigert/Puttfarken in Groot/Schneider idem, p. 59.
[62] Aikens/Higuchi, Prehistory of Japan, 1982, p. 26c.
[63] There are other disputed findings going back about 400,000 years with uncertainties about the measurement accuracy.
[64] Aikens/Higuchi in idem, 1982, p. 7.
[65] Glottochronological studies however may underestimate the time between now and the supposed split.
[66] Aikens/Higuchi in idem, 1982, p. 24.
[67] Idem, p. 247.
[68] Idem, p. 320c.
[69] Jansen, The Making, 2002, p. 3 et sqq.
[70] Jansen in idem, 2002, p. 5.
[71] For an understanding of later developments it should be kept in mind that the regional rulers still perceived their position and controlled territory as a fief from the imperial court and not as their own estate.
[72] Jansen in idem, 2002, p. 68c.
[73] An exact date for the resumption of power cannot be set easily but the Charter Oath by the young emperor in April 1868 provides a good anchor point.
[74] Sannomiya (in Stead), Japan by the Japanese, 1904/1979, p. 19.
[75] Hidemichi, Japan’s Foreign Relations, 1936.
[76] Okuma (in Stead), Japan, p. 219.
[77] Jansen in idem, 2002, p. 517.
[78] Conte-Helm, The Japanese and Europe, 1996, p. 26.
[79] There are other sites which were dated back even earlier. The age of the site at Isernia La Pineta however was determined using absolute and objective methods of measurement, while the age of the other, earlier sites is deduced from cross-references to “technological” achievements etc.
[80] Gable (in Cunliffe), The Oxford illustrated history, 1994, p. 19.
[81] Baltl/Kocher, Österreichische Rechtsgeschichte 8, 1995, p. 19.
[82] Baltl/ Kocher in idem, 1995, p. 23
[83] The existing kingdom remained in place until 50 AD, when the Roman prefecture organization was introduced.
[84] Recognizable e.g. in an excavated tombstone containing 3 Illyric, 4 Celtic, 2 Egyptian and 2 Italian names.
[85] Baltl/Kocher in idem, 1995, p. 77 et sqq.
[86] As a result from the new but unconfirmed rights, Rudolf IV also founded the Vienna university (a right so far executed only by the Emperor himself).
[87] Huppert, After the black death, 1986, p. 11 et sqq.
[88] Davies, Europe – a history, 1997, p. 253c.
[89] Where he should remain for more than 65 years until the first world war.
[90] Which in turn caused the victorious French etc. to limit Austria’s territory as much as possible in order not to empower a later unified German.
[91] Baltl/ Kocher in idem, 1995, p. 266 et sqq.
[92] On the other hand it must be mentioned that Austrians held high ranking positions within the NSDAP and many of them committed war crimes of the worst possible kind.
[93] Jelavich, Modern Austria, 1987, p. 270.
[94] Baltl/ Kocher in idem, 1995, p. 285.
[95] These sanctions were quickly lifted, however, after in other, larger countries of the EU (e.g. Italy) right-wing parties were also receiving additional support and governmental functions.
[96] Schuck, Citizens, Strangers, 1998, p. 231. While some polities deny the possibility of more than one citizenship, some polities (such as the US) tolerate this practice. One noteworthy aspect in plural citizenship is also the idea of consent. Nobody is forced to have two (or more) citizenships. It is the free decision of any individual to uphold (or to acquire) a second citizenship, which is (according to a liberal perspective) justification enough for plural citizenships. Additionally, companies and societies might profit from members with plural citizenships (companies because such employees can easily work in different countries and societies because of the higher assimilation effect on a resident).
[97] Dual citizens add additional cost factors although these costs are not always assessable in monetary terms. Thus, dual citizens have the right to vote (or influence the political process) in two countries and might use this vote to favor such parties or politicians who pursue favorable policies towards the citizen’s second home country.
[98] A recent revision to the Mexican Constitution (1998) enables Mexican citizens to keep their citizenship even after naturalizing abroad
[99] Schuck in idem, 1998, p. 234.
[100] The major exception in both countries are children who by virtue of birth acquire two citizenships (e.g. if their parents also hold different citizenships, etc.). These children are allowed to hold dual citizenship until they reach legal majority and have to choose their future citizenship.
[101] Joppke, Challenging Immigration, 1998, p. 147.
[102] Compare, however, the historically earlier appearance of ius sanguinem in the Roman Empire.
[103] Joppke in in idem, 1998, p. 156.
[104] Carens, Immigration and the politics, 1989, p. 39.
[105] The enjoyment of these and other rights in democratic states also makes it difficult even for conservative and immigration opposing governments to effectively decrease the number of foreign residents. Some writers identify this frustration on the national level as reason for some states to combine their efforts on a supranational or international level such as the EU, the Schengen system etc. (Boswell, The ‘external dimension’, 2003, p. 619 et sqq.).
[106] Schuck in idem, 1998, p. 164.
[107] Schuck in idem, 1998, p. 169. Applying for citizenship is nothing else than consenting to the polity of the country, whose citizenship wants to be obtained. Thus, not all legal residents apply for citizenship, because they do not want to be integrated into a certain polity. In the US i.e. the rate of those people who apply for citizenship among those, who satisfy the requirements for naturalization, is surprisingly low. Central or South American citizens living as legal residents in the US are particularly unwilling to trade their first citizenship (identity) for the US citizenship.
[108] Supperstone/ Cavanagh, Immigration, 1988, p. 28: naturalization is an entirely discretionary act according to the British naturalization laws
[109] Brubaker, Immigration, 1989, p. 146: “the self-exclusion of immigrants from formal citizenship leaves a significant fraction of the population, and a much higher fraction of the manual working class, without electoral voice.”
[110] Miller, Citizenship and National Identity, 2000, p. 9 and other authors take refuge in reshaping the structures of democratic system in order to accommodate differences in preferences between different social groups. The deciding factor in the so-called deliberative or liberal democracy conception is the rationality of decisions. All participants have to argue the rationality behind their preferences and individual gains do not constitute valid reasons. While the idea itself seems attractive in theory, these models have little chance of being realized. Basic flaws concern the problems of what are rational arguments and problems that include more than one rational alternative.
[111] Silverman, Deconstructing the nation, 1992, p. 19 et sqq.
[112] Miller in idem, 2000, p. 48. Liberal conceptions of citizenship and nation (basing on a shared set of principles or rights) might not be able to cope with the increasing cultural plurality because e.g. immigrants might not even subscribe to a liberal perspective in the first place. Thus, the liberal idea that all different perspectives can be accommodated under a liberal system using citizenship as a vehicle to transport liberal ideals may clash with the ideals of somebody who is e.g. primarily interested in a God based order. While the liberal might argue that for a citizen the law must be based on principles that every citizen can accept, he might well receive the answer that one’s first duty is to God and that the status of citizen must fit with this primary commitment, not the other way round.
[113] Miller in idem, 2000, p. 49 et sqq.
[114] Problems for the libertian citizenship concept is the allocation of rights to different statuses. Even an illegal alien must be credited with certain most basic rights while it remains unclear what rights can be legitimately withheld from a legal permanent resident. Public goods are paid by the polity’s tax income and every legal resident has to contribute to the income. Therefore, it would be impossible to exclude people who shoulder the whole burden of contributions from those services their contributions pay for. Additionally, different consumers would favor different kinds of public goods to a different extent. Some for instance might be satisfied with political participation rights in local elections, others want them nation-wide and others again are not interested in political participation at all. Hence, also libertian citizenship conceptions need to be evaluated carefully for their practical feasibility.
[115] Koslowski in Miller, Citizenship, 2000, p. 157.
[116] Freeman in Miller in idem, 2000, p. 89.
[117] Koopmans/ Statham, Challenging immigration, 2000, p. 189.
[118] A subtle form of control remains in from of certain requirements even EU citizens have to prove, when moving into another EU country such as health insurance or minimum financial means to support themselves.
[119] Freeman in Joppke, Challenge, 1998, p. 91 et sqq. Compare also with: 2.3. EC Legislation.
[120] Despite this relative view, the US for instance experienced (not necessarily unwanted) mass immigration in several historical periods. During the 1990 the number of immigrants reached 700,000 people a year and is likely to increase further. National Research Council, Statistics on US Immigration, 1996, p. 19.
[121] Briggs, Mass immigration, 1992, p. 31cc.
[122] In a more detailed account Heer investigated the influence of (mass-) immigration into the American labor market. Generally, he differentiated between three different groups in the labor market – the unskilled workers, the skilled workers and the owners of capital or land. Additionally he used the concepts of substitution and marginal productivity in order to show that the addition of a substitute worker decreases the marginal productivity of an existing worker, while the addition of an additional worker who is a complement for an existing worker raises marginal productivity. Skilled workers generally serve as complements for unskilled workers, while unskilled workers substitute other unskilled workers. In a labor market that is dominated by unskilled workers the mass immigration of an additional number of unskilled workers may seriously threaten the standard of living of the native population (Heer, Immigration in America’s Future, 1996).
[123] Rex in Joly, Scapegoats and Social Actors, 1998, p. 137. Former South Africa in the apartheid era is a good example for this society.
[124] An example here would be France despite the recent outbreaks of violence among male alien youths.
[125] Jasson, The challenge, 2001, p. 153.
[126] The protection and content of group or minority rights become more ambigous with the number of minority groups. Thus, minority group status is often only awarded to minorties whose members also hold the nationality of the respective state. That way, immigrant groups can be excluded from receiving minority rights. For countries with high numbers of foreign residents (i.e. many potential minorities) minority protection would otherwise result in nothing more than the Non-Discrimination Principle (Pallek, Minderheiten, 2000, p. 610 et sqq.).
[127] Kymlicka in Ben-Ami/Peled/Spektorowski, Ethnic Challenges, 2000, p. 18. Canada (French and English) as well as Belgium (Flemish and Walloons) serve as good examples for this kind of society.
[128] Rex in Joly in idem, 1998, p. 146 et sqq. How does the class system influence new immigration? Each class holds characteristic belief sets like the exclusion ideal of the upper class. This exclusion is not targeted at immigrants per se but more generally at keeping members of lower classes out. Only members of the business class which supports the economical position of the upper class are partly accepted. The business class on the other hand seeks legitimization for its high status in education merits. The middle class, though sufficiently independent, favors the ideal of equality of opportunities, a possibility for everybody to develop according to one’s own abilities (not an equality of outcomes). The worker class finally seeks its definition in rejecting the upper class ideals and value the collective rights earned in offensive class struggles based on solidarity. Immigrants and their treatment by constitutional states clash with all these classes. They are excluded from upper class and have rarely the education or business skills to excel in the business class. They enjoy many rights without having had to fight for these rights and are perceived as ‘privileged’ by the worker class. [See Kulczycki in Taras, National Identities, 1998, p. 122 et sqq, for an account on Polish working class immigrants into the German Ruhr area, who protested equally strong for German workers’ rights. Nonetheless, at this time (around 1900) no privileges existed for immigrants.] Finally they might receive favorable treatment such as employment opportunities not as a result from their individual abilities but based on special quotas for ‘disadvantaged’ groups. Thus, they clash with the concept of equal opportunities of the middle class as well. Logically such social patterns of classes and belief sets may result in severe resentments and a climate of racism which also impedes any progress in the integration process.
[129] For more detailed discussions of self, identity and others as socio-philosophical constructs, refer to e.g. Ward, Identifying the European Other, 2002, p. 219 et sqq.
[130] It opened for ratification almost ten years earlier on December 16th, 1966, and finally entered into force on March 23rd, 1976.
[131] Donnelly, International Human Rights, 1993, p. 57
[132] 154 state parties as of November 1st, 2005.
[133] Art. 28 ICCPR
[134] Art. 41 ICCPR
[135] Art. 41 (1) ICCPR. Before the complaint arrives at the human rights committee, however, the involved states must give each other the opportunity to resolve the issue bilaterally. Thus, the complaining state has first to notify the other state about the respective issue and give the other state three months to answer or to resolve the issue. If the issue is not resolved bilaterally, either state can bring the issue to the human rights committee after six months. A conciliation committee can try to resolve the issue, if the involved parties agree (Art. 42 ICCPR).
[136] Art. 40 ICCPR
[137] i.e. Zaire, which presented its initial report (due in 1978) in 1987; Donnelly in idem, 1993, p. 65
[138] Art. 1 first additional protocol to the ICCPR
[139] The UN Commission on Human Rights as a subsidiary body of the Economic and Social Council because it was originally charged with the drafting of the UN Human Rights Declaration and the drafting of the two covenants declared itself (in 1947) unfit to review individual complaints addressed to it by thousands of individuals (with the ECOSOC Resolution 75 the individual review of cases was formally forbidden). In 1967 (ECOSOC Resolution 1235) the commission however was awarded the right to discuss human rights violations of individual countries in public and to undertake intensive studies to evaluate the truth of such violations. These investigations include the dispatch of a special rapporteur and ad-hoc work groups but are usually directed towards general situations of human rights violations. Individual cases may represent the general situation but are usually not the prime object of investigation. The ensuing 1503 ECOSOC (1970) resolution clarified this mandate and geared the commission’s focus to ‘consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms’. The 1503 procedure obeys stricter formal rules than the 1235 and operates on the basis of complete confidentiality for the involved states; individual complaints play a minor role and the commission is not charged to ‘rule’ on individual cases.
[140] Art. 1 ICCPR/1st additional protocol.
[141] Art. 2 and 3 ICCPR/1st additional protocol.
[142] Art. 2 ICCPR/1st additional protocol.
[143] Art. 5 (2) ICCPR/1st additional protocol.
[144] Donnelly in idem, 1993, p. 66
[145] 105 state parties at November 1st, 2005.
[146] At November 1st, 2005.
[147] Art. 3 (1) Child Convention.
[148] Reservations: 1. Article 13 and Article 15 of the Convention will be applied provided that they will not affect legal restrictions in accordance with Article 10 and Article 11 of the European Convention on the Protection of Human Rights and Fundamental Freedoms of 4 November 1950.
2. Article 17 will be applied to the extent that it is compatible with the basic rights of others, in particular with the basic rights of freedom of information and freedom of press.
Declarations: 1. Austria will not make any use of the possibility provided for in Article 38, Paragraph 2, to determine an age limit of 15 years for taking part in hostilities as this rule is incompatible with Article 3, Paragraph 1, which determines that the best interests of the child shall be a primary consideration.
2. Austria declares, in accordance with its constitutional law, to apply Article 38, Paragraph 3, provided that only male Austrian citizens are subject to compulsory military service.
[149] For instance in cases when the child’s stay is lawful, but the stay of the parent(s) is not.
[150] 121 signatories and 102 state parties as of November 1st, 2005.
[151] Signatories: 114, state parties: 101 as of November, 1st, 2005.
[152] Lewis, An immigration policy for the European Union, 2001, p. 40.
[153] Including the London Declarations 1992 or Minimum Treatment Standards for Asylum Proceedings from June 20th, 1995.
[154] At the same meeting where the London Declarations were agreed, the member states also agreed on two more resolutions regarding the expulsion practices and the transit for the purpose of expulsion. Although deportations and expulsions belong to the immigration control, however, these two recommendations must be seen in light of their close relation with the other London Declarations on asylum seekers. The topic of expulsion practices might have been included particularly in regards to rejected asylum seekers although the recommendation also explicitly refers to aliens that have entered or remained unlawfully in a member state’s territory or those who face expulsion because of public order reaons.
[155] Niesen, J. in Guild, The developing immigration, 1996, p. 3.
[156] For instance with North African Mahgreb countries (Algeria, etc.), former Eastern European countries which now belong to the EU or Turkey (customs union).
[157] Entry into force on November 1st, 1993.
[158] Declaration 31 Maastricht treaty.
[159] Geddes, Asylum in Europe, 2001, p. 60.
[160] Other similar resolutions concern the admission of students, employed and self-employed third-country nationals to EU member states. Although the detailed admission rules concerning these groups are still decided by the national legislator, the EU resolutions provide a general framework. For instance, students should be allowed to all member states, if they have a firm offer by any recognized facility of higher education in the host country, have the necessary financial means to support themselves and have health insurance. While potential students also have to adhere to general entry requirements (valid passports etc.), the corresponding resolution (November 30th and December 1st, 1994) attempts to harmonize additional requirements.
[161] The resolution aims at family members of third-country nationals who lawfully reside in one of the EC member states under a residence status that allows for long-term or permanent residence in the EC member state.
[162] Guild in idem, 1996, p. 272c, criticizes the rights in this resolution as the barest minimum given by the European states in regards to their international human rights obligations.
[163] For instance, the recommendation concerning checks on and expulsion of third country-nationals residing or working without authorization, May 25th, 1993.
[164] Entry into force on May 1st, 1999.
[165] The Schengen acquis (Besitzstand) means the original Schengen treaties and any amending protocols to the treaties as well as the decisions and declarations of the Schengen executive commission.
[166] Declarations 45, 46 and 47 Amsterdam Treaty. Additionally, asylum matters were shifted from Pillar III (referring to ‘soft law’ areas) to Pillar I (the hard core of the community law). This shift did not transform the Dublin Convention or the Schengen acquis into first pillar documents but referred to future developments. From a less optimistic perspective, the new title IV of the First Pillar (in which the asylum as well as the freedom of movement provisions for EU citizens are contained) had been characterized as a “ghetto of the First Pillar”, reflecting the limited ability for the commission to shape the EU policy in this areas and the need for unanimity in any decisions (Geddes in idem, 2001, p. 61).
[167] As a first step in this process, the Schengen protocol to the Amsterdam treaty signed on May 1st, 1999, incorporated the Schengen system into the EU framework. With this step the EU not only acquired competence for the Schengen matters but also for the further development of these regulations.
[168] Art. 63 EC. Other areas particularly in regards to regulations about entry and residence requirements, the procedures for long-term visas or residence titles for family members remained outside the five year deadline.
[169] The negotiations among the EU member states were rather controversial and although finally all states agreed to move the respective matters to the First Pillar of EU law, this shift required a compromise that created ‘stay out’ and ‘opt in’ provisions for Denmark, the United Kingdom and Ireland which all opposed parts of the new competency for the EU institutions (Hailbronner/ Thiery, Amsterdam – Vergemeinschaftung, 1998, p. 584 et sqq).
[170] Although the new competencies for the EU were considerate, they did not entail the competence competency, i.e. the competence to allot itself new competencies in the case of lacunas etc. Hailbronner/Thiery in idem, p. 586.
[171] Durieux, Is a New European, 2001, p. 47.
[172] Lewis in idem, 2001, p. 41.
[173] In regards to asylum policies the first steps followed soon e.g. for the temporary protection of displaced people: In 1998 the Commission proposed a common policy on the institution of temporary protection of people potentially qualifying for a refugee status under the GRC. The idea of temporary protection is to give certain (groups of) asylum-seekers the status of temporary refugees without further examinations of their individual cases. There is a fair number of other statuses awarded to asylum-seekers nowadays throughout the EU member states like: humanitarian statuses, B status, exceptional leave to remain, etc… This institution should be limited to the case, when there is a “mass flight of persons that [results in] a sudden arrival within the Union of a significant number of persons” (Lambert, Building a European, 1999, p. 332).
The practical origin of the temporary refuge system which is limited to countries in the EU neighborhood can be seen in the refuge crisis caused by the war in the Balkans. Western European had to realize that the crisis was at their door; partly however, it preferred defensive reactions and some politicians also exploited xenophic fears of being invaded (Adinolfi, European Traditions, 2001, p. 27). Refraining from the evaluation of individual application seems legitimate as long as the ‘temporary refugee’ has the right to apply for a refugee status under the GRC after the end of the temporary asylum and as long as the rights of temporary refugees do not differ from the rights guaranteed in the GRC. Explicitly the joint position grants the rights to family reunification (core family only), a permission to work, entitlements to housing and education and income support for those with no income. This proposal is entangled with another proposal on sharing the (financial) burden of the temporary refugee system.
[174] The regulations for family reunifications based on a proposal by the Commission were controversially discussed among the twelve participating EU member states (the UK, Ireland and Danmark used their respective rights to opt out) and revealed once more that some EU member states are much more affected by immigration than others (e.g. the percentage of third-country nationals in Luxembourg, Austria, Germany and Belgium is more than 8% while it is less than 2% in Greece, Finland and Portugal and still less than 4% in big member states such as the UK, Italy and Spain (Hauschild, Neues europ äisches Einwanderungsrecht, 2003, p. 266 et sqq).
[175] Besides legislation that aims directly against criminals who engage in trafficking in human beings, this directive forms a second important step in breaking the circle of human trafficking which occurs in all European countries. Western European countries usually serve as destination countries of women/children who are brought for sexual exploitation (mostly) from Eastern European and other countries, while Eastern European countries more often serve as countries of origin, transit and also as countries of destination (Gramegna, Human trafficking in Europe, 2001, p. 101.
[176] First initiatives for the introduction of a European citizenship started at the The Hague summit of 1969 and then consequently started to include those legal areas applicable to European citizens like free movement within the EC area, the right to vote in local elections in which the ‘European citizen’ had his domicile etc. With the treaty of Maastricht, these rights were first introduced as EC citizen rights in primary EC law (Art. 17 et sqq. EC treaty) and the directive 2004/38/EC finally demands the realization of EU citizen rights until April 30th, 2006. (Haltern, Europarecht, 2005, p. 476 et sqq.).
[177] Art. 18 EC Treaty (former Art. 8a EC Treaty).
[178] For an extensive discussion of the corresponding case law and the respective developments in the right to free movement for EU citizens refer to Scheuing, Frei zügigkeit als Unionsbürgerrecht, 2003, p. 744 et. sqq.
[179] Khan, Refugees, Internally Displaced, 2001, p. 34.
[180] However, the incorporation of the Schengen acquis into EU law needed more than a simple declaration particularly since the Schengen treaties could not automatically become parts of Pillar One of the EU law after the entry into force of the Amsterdam Treaty. One reason was its character as an international treaty with other participants beside EU member states. Another one was the problem that the Schengen treaty regulated matters that even in the Amsterdam Treaty still formed part of the third pillar (e.g. police corroboration), and finally problems occurred because of the staying out/opting in options for Denmark, Ireland and the UK (Hailbronner/Thiery in idem, 1998, p. 592 et sqq.).
[181] The participation in the border free area is not synonymous with signing the Schengen treaties. All EU member states have signed the Schengen treaties but not all of them participate in the border free Schengen area. The most important reason for this discrepancy are the requirements for the control of the outer Schengen area borders. Thus, all new EU member states in Eastern Europe would become responsible for the control of the Schengen area outer borders.
[182] Their initiative based on a common passport system and the idea to reduce regular border checks to mere random checks. This initiative, however, was met with strong resistance of – one might say “the usual suspects” – United Kingdom and Denmark which are rather reluctant as far as integrative measures are concerned. When by the eighties France and Germany had realized that no consensus could be developed within the EC, they bypassed the EC and signed a bilateral treaty in 1984 (treaty of Saarbruecken) which aimed at abolishing border checks for the future.
[183] Cruz, Schengen, Groupe ad hoc Immigration, 1993, p. 4
[184] 29 states signed the Schengen treaties so far: Austria, Belgium, Cypress, Czech, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Lithuania, Latvia, Luxembourg, Malta, the Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom.
[185] Article 39 to 91 Schengen II.
[186] Article 92 to 119 Schengen II.
[187] The competency of the Executive Committee and its relation to national legislators was not uncontroversial. The Executive Committee decides finally on certain issues and these decisions are binding on the individual members states of the Schengen treaties. Several member states evaluated these competencies in the light of circumventing the national legislator since there was no place for the national parliaments in the decision making process (for more details: Schütz, Europaweite Freizügigkeit, 1995, p. 518 et sqq.).
[188] Art. 3 Schengen II.
[189] Only in the latter part of the treaty (Art. 135) a reference to the GRC provides the basis for the application of the GRC exceptions on border crossing for refugees. Thus, also the unauthorized entry of refugees into the Schengen area must be allowed and not be penalized following Article 31 (1) GRC.
[190] Art. 96 Schengen II.
[191] Homepage of Statewatch, November 3rd, 2005, http://www.statewatch.org/news/2005/apr/08SISart96.htm. The countries that entered most aliens in the Schengen system are Italy (>335,000) and Germany (>265,000). Other states enter significantly fewer people like Greece and France with over 50,000 on place 3 and 4. Austria on place 5 has entered more than 33,000 aliens.
[192] Since member states enjoy fairly big discretion in regards to what aliens they enter in the Schengen system, Germany and Italy for instance have entered all aliens that e.g. applied for asylum and were rejected. Hence, they account for more than ¾ of all entries.
[193] The primacy of the short-term visa is also documented in the detailed description of this category in the treaty in Articles 9 to 17, while the long-term visa is discussed in only one Article (Art. 18).
[194] Article 10 Schengen II.
[195] Article 12 Schengen II.
[196] Article 11 (1) lit b Schengen II.
[197] Article 14 (1) Schengen II.
[198] Article 16 in connection with Article 5 (2) Schengen II.
[199] This regulation should facilitate the processing of asylum claims by such aliens because usually the country of first entry is also the responsible country for asylum applications. In practice, however, the fall of internal border check points enables the alien to go wherever he or she wants, illegally though.
[200] Art. 28 Schengen II.
[201] For a comprehensive assessment of the Dublin Convention compare e.g. with Hurwitz, The 1990 Dublin Convention, 1999, p. 646 et sqq. Critical issues in this survey are difficulties in practical application when determining the responsible state for the asylum evaluation particularly in humanitarian cases or cases with family members and problems for the legal rights of asylum seekers.
[202] Huber, Das Dubliner Übereinkommen, 1998, p. 150.
[203] These duties refer particularly to the non-refoulement principle of Art. 33 GRC. The prosecution invoked by the non-refoulement regulation of the GRC however overlaps strongly with the protection of individuals from the European Convention on Human Rights (i.e. Art. 3; for a detailed analysis refer to Fabbricotti, 1998, The concept of inhuman, p. 651 et sqq.); the GRC Non-Refoulement Principle nonetheless is of significant value because of the special treatment acknowledged refugees are entitled to and because of the importance the non-refoulement principle enjoys in international law. While its ius cogens nature is not fully ascertained (compare with Allain, The jus cogens nature, 2002, p. 538 et sqq., for arguments), its role as an important principle of international law relating to the treatment of aliens is unquestioned.
[204] Article 37, 38 Schengen II.
[205] Art. 30 Schengen II.
[206] If this is the case for more than one state, the state, whose visa expires latest, is responsible.
[207] Article 35 Schengen II.
[208] Article 32 Schengen II.
[209] A noted difference has arisen between the UK and Germany, both countries receive large numbers of immigrants every year. While the UK did acknowledge persecution from non-state actors as persecution under the GRC, Germany did not. Thus, applicants who had filed their applications in the UK were to be taken back to the responsible state Germany. However, the UK court of appeal (in Adan and Aitsegur vs. UK) prevented the re-transferal to Germany and shed doubt on the legitimacy of an “agreement to disagree” over the GRC terms and definitions[209] as derived from Article 32 Schengen II.
[210] Article 40 (1) in connection with (7) and Article 41 (1) in connection with (4) Schengen II.
[211] Article 42 Schengen II.
[212] Council Meeting No. 2396, December 6th and 7th, 2001, report no. 14581/01, p. 6.
[213] Article 94 (1) Schengen II.
[214] Council Meeting No. 2396, December 6th and 7th, 2001, report no. 14581/01, p. 17.
[215] The relationship between the European Convention and the European Communities is not entirely clear. The European Court of Justice recognizes the important role of the Convention and the case law of the European Court of Human Rights in human rights questions. The ECHR on the other hand rejects the accession of the EU or the European Communities to the Convention but is extending its jurisdiction over communitarian legal acts (Walter, Die Europ äische Menschenrechtskonvention, 1999, p. 980 et sqq.).
[216] While its role as bill of rights in the Austrian legal system is uncontroversial, the Convention enjoys this superior position not in many other countries, which also depends on the rank the Convention has in the legal system of the respective state. For a discussion of this issue in the German legal system, refer to: Hoffmeister, Die Europ äische Menschenrechtskonvention, 2001, p. 351 et sqq.
[217] Austria joined the Council of Europe in April 1956, and ratified the Convention on September 3rd, 1958, with the necessary quorum for constitutional laws. Nonetheless, the legislator had forgotten to use the term ‘constitutional law’. Consequently the Constitutional Court denied the Convention the rank as Constitutional Law and the legislator had to repair this mistake by passing a constitutional amendment in 1964 which changed the rules for the incorporation of international treaties in domestic law retroactively and expressly awarded constitutional rank to the Convention (Drzemczewski, European human rights convention, 1983, p. 93 et sqq.).
[218] Social rights were not seen as liable for trial in a court and therefore mostly excluded from the original convention draft. Thus, the compliance mechanism was strengthened because it only had to deal with the hard core of human rights.
[219] The individual complaint mechanism is explained in the next subchapter.
[220] The convention was ratified by 22 members of the Counsel of Europe in this first stage. Japan is an observer to the committee of ministers.
[221] Art. 13 of the Convention guarantees the right to an effective remedy before a national authority concerning the rights and freedoms of the Convention. This was interpreted as a duty to incorporate the Convention into the national legal systems because only after such incorporation the national authority could use the (incorporated) convention as a basis for its decisions.
[222] Chryssogonos, Zur Inkorporation, 2001, p. 49 et sqq.
[223] In the Netherlands the Convention only functionally enjoys the rank of constitutional law. More accurately, it forms the bill of rights part of the Constitution in the Netherlands and its functional rank as constitutional law derives from the regulation that alleged violations of the Netherlands’ Constitution by the convention do not fall under the scope of judicial review, while judicial review procedures for the allegation that other norms violate the Convention exist. Chryssogonos in idem, 2001, p. 56.
[224] By 1987 all parties to the Convention had accepted this mechanism.
[225] For the time from 1.1.1990 until 31.7. 1998.
[226] In more detail, the complaint by an individual is first reviewed by a rapporteur, who either transfers the complaint to the competent chamber (thus, admitting the case) or to a committee of three judges that can reject a case. In cases that call for interpretations of the convention or a change from the existing case-law, the chamber relinquishes the jurisdiction in favor of the Grand Chamber. Decisions in the Grand Chamber are always final; decisions in the chambers can be reviewed by the Grand Chamber under certain circumstances. All ECHR decisions are binding.
[227] Herdegen, Europarecht, 2005, p. 15.
[228] Grewe, Vergleich, 2001, p. 470c.
[229] Herdegen in idem, 2005, p. 19. The individual states decides whether the judgment of the ECHR is best served by re-opening a case etc. In cases that involve severe violations of fair trial regulations, the ECHR however has already demanded that the respective state party has to re-open the case (Idem, p. 21).
[230] For a more detailed introduction in the Japanese legal system refer e.g. to Fujikura, Japanese law, 1996; or Dean, Japanese legal system2, 2002.
[231] Art. 1 Immigration Control and Refugee Recognition Act (Orig.: shutsunyūkoku kanri oyobi nanmin ninteihō; henceforth abbr.: ICA).
[232] Orig.: shutsunyūkoku kanri oyobi nanmin nineteihō shikō kisoku; abbr. ICA/Ord.
[233] Dean in idem, 2002, p. 138c. Administrative guidance has been a central object of criticism for Western writers since it exists in a factual and non-legal form and allows the Administration to circumvent legal stipulations and even to urge individuals in directions contrary to the stipulations in the respective laws. Although the Administration stresses the fact that individuals act to guidance voluntarily, it contains at least a quasi-coercive character because of the bureaucracy’s power.
[234] Research Group on Immigration Control Matters, Manual for immigration control matters, 2004, p. 15 (henceforth: Manual for immigration, 2004).
[235] Takayanagi in Dean in idem, 2002, p. 134. Although also Dean discusses Jōri as a form of legal source, he mentions that its more appropriate label would be an interpretative tool much like the ‘good faith’ concept in civil law systems.
[236] However, note the regional development in Europe described in the chapters on 2.3. EC Legislation and 2.4. The Schengen System.
[237] Manual for immigration in idem, 2004, p. 17.
[238] Idem, p. 19.
[239] E.g. Art. 13 (2) UN Universal Declaration of Human Rights; Art. 12 ICCPR.
[240] Supreme Court Decision, Grand Chamber, December 25th, 1957; Keishū 11-14-3377.
[241] Art. 22 Japanese Constitution.
[242] Tokyo District Court 16th Dec. 1968, Minshū 24-11-1554.
[243] Manual for immigration in idem, 2004, p. 19.
[244] Idem, p. 21. At the time of the resubmission the original applications must have been rejected, the current residence title must still be valid and it must be possible to
[245] Ogino, Aliens and the law, 2000, p. 23.
[246] Idem, p. 24.
[247] Ministry of Justice Immigration Control Section, Immigration control, 2004, p. 3 (henceforth: Immigration control, 2004)
[248] Ogino in idem, 2000, p. 29c.
[249] The administrative decree (seirei) no. 178 from May 22nd 1998 acknowledged the papers from Taiwanese authorities as valid passports.
[250] Contrary to the passports of Taiwanese authorities, passports of the not acknowledged state authorities in North Korea are not accepted as valid passports. North Koreans coming to Japan, therefore, need to obtain confirmation of their travel abroad from Japanese consulates abroad. This confirmation then substitutes the passport when traveling to Japan.
[251] Aliens whose passport expires during their residence in Japan also should apply for extension or a new passport at their consulates in Japan, although an expired passport usually becomes a problem only when applying for a renewal or change of one’s residence title or when the alien decides to terminate his stay in Japan and wants to leave Japanese territory.
[252] Yamada/ Kuroki, Easy to understand immigration, 2004, p. 17. Because valid passports are necessary, stateless persons who are not in possession of a passport can in principle not enter Japan unless they are in possession of other travel documents recognized by the Japanese government as official substitute for a valid passport.
[253] Ogino in idem, 2000, p. 24.
[254] The alien must further produce his travel ticket along with his applications for landing. Art. 5 (2) ICA/Ord.
[255] Art. 5 (3) ICA/Ord.
[256] Idem (4).
[257] However, an exception is the special landing permission for aliens that arrive at the Japanese port without a visa.
[258] Ogino in idem, 2000, p. 29.
[259] Immigration control, in idem, 2003, p. 201.
[260] Manual for immigration in idem, 2004, p. 43c.
[261] Article 7-2 (2) ICA.
[262] Strictly speaking the affiliate’s position is the position of a messenger, he only represents the alien in submitting the application but practically the affiliate is treated as a genuine proxy of the alien.
[263] Art. 6-2 (3) ICA/Ord.
[264] Idem, p. 46.
[265] Ministry of Justice Immigration Control Section, Immigration control, 2003, p. 27 (henceforth: Immigration control, 2003). A gradual increase with 238,053 in 1999, 280,015 in 2000, and 321,590 in 2001.
[266] Art. 7 (1) cif 1 ICA.
[267] Idem cif 2.
[268] Art. 7 (2) ICA.
[269] Art. 5 ICA.
[270] Include Art. 5 cif 1 and 2 ICA.
[271] AIDS for example is categorized as level IV, requiring notification.
[272] Art. 5 cif 2 ICA.
[273] Idem cif 3.
[274] Includes Art. 5 cif 4, 5, 5-2, 6, 7, 8, and 9-2 ICA.
[275] Idem cif 9 states a number of penal code provisions and determines that people convicted and sentenced under these provisions are rejected at the landing inspection regardless of the sentence received as long as not at least five years between the final sentence and the landing application have passed.
[276] The fear of violent fans at such events as the Soccer World-Championship hosted by Japan and Korea in 2002 was responsible for creating this rule in Article 5 cif 5-2 IAC. Indeed on May 27th 2002, just before the championship started, the first 2 English suspected hooligans were rejected landing permissions in accordance with this provision and in regards to 349 fans for whom the Japanese received information from other states, the Japanese authorities decided to refuse entry to 197 and to subject the other 152 to 'intensive immigration checks' which could lead to them being refused entry, too.
[277] Includes Art. 5 cif 11, 12, 13, and 14 ICA.
[278] Includes Art. 5 cif 9 and 10 ICA.
[279] Since an internal standard in 1998 was revised, the designated period of residence is supposed to be the maximal possible period for the respective residence title. The Administration, however, still continues to stamp one-year residence periods for most of the residence titles. Manual for immigration in idem, 2004, p. 57.
[280] Art. 9 cif 4 IAC.
[281] Art. 7 (1) cif 1 IAC.
[282] Idem cif 2.
[283] Idem cif 3.
[284] Idem cif 4 and Art. 5 IAC.
[285] About 14,280 cases in 2002, down 18% from the 17,394 cases in 1998. Immigration control in idem, 2003, p. 23.
[286] Ogino in idem, 2000, p. 34.
[287] Manual for immigration in idem, 2004, p. 65.
[288] The number of aliens subjected to the hearing (hence the number of aliens not passing the landing inspection by the Immigration Inspector) changes considerably every year. In 2002 some 17,973 persons were handed over to the Special Inquiry Officer; down 16% to 1998 and down 49% to the peak year 1993 (35,203 persons). Immigration control in idem, 2003, p. 23.
[289] Art. 10 (1) cif 3 ICA.
[290] Idem cif 2.
[291] Manual for immigration in idem, 2004, p. 66.
[292] Art. 10 cif 4 ICA.
[293] Manual for immigration in idem, 2004, p. 65.
[294] Art. 8 (1) ICA/Ord.
[295] Art. 10 cif 7 ICA.
[296] From the about 18,000 aliens that did not pass the Immigration Inspector’s evaluation in 2002, about 9,150 (~51%) were granted a landing permission from the Special Inquiry Officer. When Immigration Inspectors deny the landing permission, thus, they seem to err in every other case. This relation is slightly worse than it was in 1998, when from 21,469 aliens initially denied landing, only 9,716 (~45%) received a landing permission from the Special Inquiry Officer later. Immigration control in idem, 2003, p. 24.
[297] Art. 10 cif 9 ICA.
[298] Idem cif 10.
[299] Art. 11 cif 1 ICA.
[300] Art. 10 cif 2 ICA.
[301] Art. 10 cif 1 ICA.
[302] Manual for immigration in idem, 2004, p. 66.
[303] Formally it is a decision of the Minister of Justice, although the authority to decide upon the objection has been delegated to the Head of the Regional Immigration Control Office in accordance with Art. 69-2 ICA. The cases delegated to the Regional Immigration Control Office and the cases reserved to the judgment of the Ministry will be discussed more extensively in a later chapter (7.5.1.3. Jurisdictional Changes).
[304] Art. 11 cif 3 ICA.
[305] Idem cif 4. If by authority of the above-mentioned delegation, the Head of the Regional Immigration Control Office decides the objection himself, of course he is likewise obliged to act without further delay and to allow landing immediately.
[306] Idem cif 6.
[307] Manual for immigration in idem, 2004, p. 66.
[308] Art. 12 ICA.
[309] Since standards for the special landing permission or successful cases are not published, this review bases on the experience immigration lawyers have with the immigration offices.
[310] Manual for immigration in idem, 2004, p. 67c.
[311] This quite remarkable flexibility also means that e.g. a five year residence ban can factually be lifted earlier, because the position of the alien is reconsidered in regards to his actual position. If the ties of the alien to Japan have tightened in spite of his living abroad (e.g. through marriage etc…) , his ‘claim’ to a life in Japan is equally strengthened.
[312] Idem p. 68c.
[313] Immigration control in idem, 2003, p. 27.
[314] Art. 13 ICA.
[315] Manual for immigration in idem, 2004, p. 67.
[316] Both the place of residence during the provisional landing and the area of movement should correspond to the district of a communal county. Art 12 (2) cif 1, 2 ICA/Ord.
[317] The bail has to be returned at the time when the alien receives a regular landing permission or at the time he is ordered to leave Japan. It may be confiscated, when the alien violates the conditions attached to the provisional landing permission or does not appear as summoned. When confiscating the bail, the Supervising Immigration Inspector may decide to only confiscate parts of the bail. Art. 13 cif 4, 5 ICA.
[318] Art. 13 cif 3 ICA. Generally the bail should correspond to the alien’s assets and in cases of minors, the bail must not exceed one million Yen. Art. 12 (2) cif 4 ICA/Ord.
[319] Art. 14 ICA.
[320] Art. 15 ICA.
[321] Idem cif 4.
[322] Art. 16 ICA.
[323] Idem cif 4.
[324] Art. 17 ICA.
[325] Art. 18 ICA.
[326] Art. 18-2 ICA.
[327] Tokyo District Court 16th Dec. 1968, Minshū 24-11-1554.
[328] Art. 26 ICA.
[329] Ogino in idem, 2000, p. 36.
[330] Art. 29 (2) ICA/Ord. If the alien is not in possession of one of these documents, other documents explaining the lack of the respective documents need to be submitted.
[331] Ogino in idem, 2000, p. 36.
[332] Art. 26 cif 3 ICA.
[333] Art. 6 ICA.
[334] Art. 7 Parenthesis.
[335] Manual for immigration in idem, 2004, p. 22.
[336] Idem p. 22.
[337] Idem p. 23.
[338] Even the status related residence titles of the final annexed table are sometimes described through activities. Thus, all activities allowed for people of a certain status define the allowed activities for the respective alien (Yamada/ Kuroki in idem, 2004, p. 30). Take for example the residence title “spouse of a Japanese national”. An alien with this residence title may engage in all activities allowed for a spouse. The point of reference here is a Japanese national with the same civil status. The alien spouse may engage in all activities allowed also for a Japanese spouse, which are essentially unlimited.
[339] Manual for immigration in idem, 2004, p. 23, admitting, though, that the case law does not strictly follow this interpretation.
[340] Argument: “can be deported“ (Art. 24 ICA).
[341] Idem, p. 25.
[342] The staff in the Immigration Administration (including those working at the Ministry of Justice’s Immigration control section) increased from only 1740 to 2693 between 1985 and 2002. This number includes not only Immigration Inspectors but also Immigration Control Officers and clerks in the immigration offices. Immigration control in idem, 2003, p. 151.
[343] Manual for immigration in idem, 2004, p. 26.
[344] In some cases the Administration may issue another residence title like a short-term residence title to bridge the time between the expiration of the old residence title and the issue of the new residence title.
[345] Law No. 71 of 1991, Art. 3 to 5 Special law to the ICA.
[346] For more information on this group of special permanent residents, compare: 3.3.3.4.3. Special Permanent Resident.
[347] Art. 6 Agreement basing on the Japanese-American Security Treaty.
[348] Art. 3 (2) Agreement relating to the status of UN Military Forces.
[349] According to the standards for the landing permit, in Immigration control in idem, 2003, p. 204c.
[350] Ogino in idem, 2000, p. 31.
[351] Manual for immigration in idem, 2004, p. 23c.
[352] Idem, p. 24.
[353] Compiled from data provided in Immigration control in idem, 2003, p. 35.
[354] Includes professor, artist, religious activities and journalists but not diplomats and officials for lack of published numbers.
[355] Compare: 3.3.3.4.3. Special Permanent Resident.
[356] Yamada/ Kuroki in idem, 2004, p.60.
[357] Manual for immigration in idem, 2004, p. 128.
[358] Art. 19 (2) ICA.
[359] Ogino in idem, 2000, p. 40.
[360] Manual for immigration in idem, 2004, p. 133.
[361] Art. 19-2 ICA/Ord. Besides instructions also activities like the participation in discussion panels, teachings, advice or remunerations for self-created literature, scientific works, pictures or photographs, the participation in films and TV-programs and rewards for activities for the sake of one’s family members, friends or relatives as well as lottery winnings do not constitute income in the sense that a working permit is required as long as these activities are not pursued on a commercial basis.
[362] Yamada/ Kuroki in idem, 2004, p. 63.
[363] These seven countries have bilateral agreements with Japan so far.
[364] Manual for immigration in idem, 2004, p. 129c.
[365] Idem, p. 128.
[366] Idem, p. 128.
[367] Idem, p. 129. If the alien believes that the new activity belongs to the same residence title and the alien’s residence time is still long before expiration, the alien should apply for a confirmation of one’s employment status which decreases the probability to have problems with a later extension of one’s residence title considerably. If changing job occurs just immediately before the expiration of the residence titles, the alien should first apply for an extension of his residence period. Only in cases when the alien assumes that the new activity is not covered by his current residence title, he should apply for a change of the residence title.
[368] Idem, p. 130.
[369] A position as manager or branch manager is also acknowledged as an investor.
[370] The time spend in a graduate study for management is included.
[371] Given the number of potential workers from other Asian countries, the effects of an unlimited residence title ‘unskilled labor’ would be detrimental for the Japanese labor market for unskilled workers. On the other hand, however, there are only few Japanese youths who fall under the category of unskilled workers, while the need for unskilled workers in construction services etc. rises again with the economical upturn in Japan and the continuing aging of Japan’s population.
[372] Since there is no minimum age or educational level required, also a cook who started to work at age 6 in a restaurant’s kitchen in his home country and worked there until age 22 qualified for the 10 years of practical experience. Manual for immigration in idem, 2004, p. 132c.
[373] Art. 17 and Art. 23 respectively. Art. 24 Japanese Constitution protects only the marriage but not the family life.
[374] Sadamatsu in Miyajima/Kanō, Changing perspectives in Japanese e, 2002, p. 45.
[375] E.g. the witnesses are not required to appear and sign at a public office, not even the two spouses need to appear at the same time, submitting a declaration is sufficient.
[376] Manual for immigration in idem, 2004, p. 95.
[377] Some countries, however, use the necessary certificate also as tool to implement other policies such as the Philippines that issue the respective certificate only in cases of pregnancies or Iran that asks the two partners for an interview at the Iran Consulate. If an Iranian male wants to marry a Japanese female that is more than five years older than he is.
[378] Official collection of documents confirming personal relations in various countries.
[379] Manual for immigration in idem, 2004, p. 97.
[380] Art. 41 (1) Family Registry Law.
[381] Particularly in regards to Japanese men working in the Philippines the term ‘Japinos’ or ‘Nippikokusaiji’ for Japanese-Philippine children has gained a regretable popularity.
[382] Manual for immigration in idem, 2004, p. 102.
[383] If the alien resides outside Japan, however, an application for the certificate of eligibility is advisable.
[384] Annexed table 2 ICA/Ord.
[385] Manual for immigration in idem, 2004, p. 103.
[386] Art. 2-2 cif 2 ICA.
[387] Manual for immigration in idem, 2004, p. 104. Furthermore a number of forms and papers must be submitted to show how the two partners got acquainted to each other, and whether a previous residence history in Japan exists. If the alien has a former history of deportation, additional materials including pictures and detailed descriptions of the wedding ceremony etc… are required.
[388] However, note the new revocation of residence title regime described in: 7.1.1. Reasons for Revoking a Residence Title.
[389] Idem, p. 106.
[390] E.g. Osaka High Court, Judgment, 1999, 25th of December, Hanta No. 1059, p. 108.
[391] Idem, p. 107.
[392] Supreme Court, Judgment, October 17th, 2002, Hanji No. 1806, p. 25.
[393] Reseach in idem, 2004, p. 108.
[394] Idem, p. 109. Quite often the reason for the divorce is an extra-marital relationship on the side of the Japanese or foreign spouse. Together with not revoking the residence title immediately after a divorce, the foreign spouse has the opportunity to remarry during the remainder of his or her stay and to apply for an extension of the residence title ‘spouse’ at the end of the expiration period. Thus, a continuation in the alien’s status as spouse is assumed, although in fact the Japanese spouse has changed.
[395] Ogino in idem, 2000, p. 132c, maintains that with the status quo, the change of residence titles is rather difficult and the Administration’s refusal to use the existing legal possibilities more flexibly results in social problems such as that foreign spouses who want to provide care for their deceased Japanese spouse’s aged parents have to return to their home countries.
[396] If the alien has already acquired the residence title ‘long-term resident’ or ‘permanent resident’, there is of course no need to change to another residence title.
[397] The term ‘anchor alien’ is used for the alien to whom the necessary relation that justifies another alien’s residence claim exists.
[398] Yamada/ Kuroki in idem, 2004, p.67.
[399] Right-hand column of Sub-table 4 to the annexed Table 1 of the ICA. Exceptions however apply to spouses of anchor aliens holding the residence titles ‘diplomat’, ‘official’, ‘temporary visitor’ or ‘dependent’. Note that the spouse of a diplomat or officer also receives the same residence title as her working spouse. Thus, both spouses receive the respective residence title e.g. as ‘diplomat’.
[400] Ordinance (shōrei) of the Ministry of Justice, No. 16, May 24th, 1990.
[401] Ogino in idem, 2000, p. 135c.
[402] Yamada/ Kuroki in idem, 2004, p. 66.
[403] Exceptions may occur, if the spouse qualifies for an activity related residence title which is strictly controlled, though.
[404] The Japanese Nationality Law also provides the opportunity to register the child with the Japanese and the foreign nationality. This provision allows the child to grow up holding dual citizenship and to choose from the respective citizenships once the child has gained majority. The prescribed registration procedure must be entered within 14 days or 3 months after birth depending whether the child is born in Japan or abroad, respectively.
[405] Art. 2 cif 1 Nationality Law.
[406] Art. 772 Japanese Civil Code.
[407] Art. 2 cif 1 Japanese Nationality Law.
[408] This acknowledgment does not need to be a voluntary declaration. If the child’s mother acquires an affiliation order in the family court, and thus proves the Japanese father’s paternity, the necessary father-child relationship is also established and in the praxis the legitimization (albeit a ‘forced acknowledgment) has the same powers as a voluntary one. Manual for immigration in idem, 2004, p. 116c.
[409] Idem, p. 113.
[410] Supreme Court 2nd Chamber, 17th October, 1998.
[411] Notification of the Ministry of Justice’s section chief, No. 180, January 20th, 1998.
[412] Ogino in idem, 2000, p. 130c, criticizes the vague term ‘as fast as possible’, since it leaves too much room for discretion. In the corresponding Supreme Court case, the invalidation of the legal presumption was submitted about 3 months after the child’s birth and the real father submitted a declaration of legitimization 12 days later.
[413] Manual for immigration in idem, 2004, p. 114c. In case that the necessary action within the 3 months or 14 days, respectively, could not be conducted because of reasons beyond the control of the real parents, the Administration’s guidance should be asked and discretionary power allows the Administration to extend these time limits.
[414] Notification of the Ministry of Justice’s civil affairs department, No. 2420, 11th November, 1999.
[415] I.e. the later validation that the declaring male is the child’s real father.
[416] Practically the submission is first accepted but cannot be validated yet, because the mother’s spouse is still presumably the real father of the child. In such a case the Administration withdraws the decision to accept the submission and issues a decision refusing the declaration. Once the real father has invalidated the legal presumption, the Administration withdraws its own refusal and with accepting the additional data (e.g. the courts decision about the paternity) it acknowledges the original declaration with the date of the original declaration. Manual for immigration in idem, 2004, p. 115c.
[417] Art. 22-2 ICA.
[418] According to Manual for immigration in idem, 2004, p. 118.
[419] If an acknowledgment declaration was submitted. Forced declarations are permissible. Ogino in idem, 2000, p. 136, however criticizes that most of the current problematic cases concern children of Japanese fathers and foreign illegally residing mothers, when the Japanese father denies his paternity and separates from the child’s mother. Since the mother resides illegally in Japan, appearing at the Administration contains the grave risk that a deportation procedure is started before e.g. she could get a court to declare the paternity of the Japanese father.
[420] Notification (tsutatsu) of the Ministry of Justice, July 30th, 1996.
[421] This notification can also be applied to cases of divorce. However, since the ‘caretaking’ parent also has to have the rights of custody over the child, the application is limited. Japanese custody cases weigh the economical security of the parents against each other and often the economical security is the (only) deciding moment to award custody. Since the economical situation of the foreign female ex-wives is usually worse than the economical situation of the Japanese ex-husband, custody is often given to the father. However, then the notification can no longer be applied and the foreign mother may lose her residence title. Ogino in idem, 2000, p. 138c.
[422] If the father provides an acknowledgment. However, usually the child’s residence title depends on the parent who exercises care and custody.
[423] Thus, the child’s residence period may expire later than the residence period of its parents.
[424] Yamada/ Kuroki in idem, 2004, p. 69.
[425] Idem p. 95.
[426] Manual for immigration in idem, 2004, p. 121.
[427] Notification (kokuji) of the Ministry of Justice, May 24th, 1990.
[428] Manual for immigration in idem, 2004, p. 121.
[429] Japanese Ministry of Foreign Affairs, Recommendations of Overseas Emigration Council, 2000, http://www.mofa.go.jp/policy/emigration/nikkei.html
[430] Discover Nikkei, July 3rd, 2005, http://www.discovernikkei.org/en/what/.
[431] A tentative number from the MOFA suggests around 130,000 working Nikkeis in 1993. Idem.
[432] Yamada/ Kuroki in idem, 2004, p. 68.
[433] Notification (kokuji) of the Ministry of Justice, No. 132, May 24th, 1990.
[434] Manual for immigration in idem, 2004, p. 123.
[435] Idem, p. 124.
[436] Sakanaka/Saitō, Commentary to the Immigration, 2000, p. 172c.
[437] Immigration control in idem, 2003, p. 10. Between 1998 and 2002 the respective total numbers are 1998: 3,4 Mil.; 1999: 3,7 Mil; 2000: 3,9 Mil.; 2001: 3,9 Mil.; 2002:4,3 Mil.
[438] Sakanaka/ Saitō in idem, 2000, p. 173.
[439] Manual for immigration in idem, 2004, p. 134.
[440] A return ticket can be substituted by a guarantee from the travel company and the data for the living costs can consist of hotel reservations, credit cards, traveler cheques etc.
[441] Manual for immigration in idem, 2004, p. 135c.
[442] Art. 20 cif 3 last sentence ICA.
[443] If the alien used the ‘short-term’ residence title only for convenience because he did not want to undergo the procedure for the certificate of eligibility for another residence title, or if the alien did not understand the immigration control system and simply entered Japan on a ‘short-term’ basis, the immigration control usually rejects applications for a change of the residence title. Similarly if the alien did not apply for a visa appropriate for the intended activities in Japan a later change of residence in Japan is not granted. The same applies to cases of immigrants from countries with visa waiver agreements. Yamada/ Kuroki in idem, 2004, p. 86.
[444] Manual for immigration in idem, 2004, p. 136.
[445] Notification of the Ministry of Justice, applicable since January 1st, 2000.
[446] Annexed table 2 of the ICA.
[447] Aside the peak year of 2000 with over 40,000 new long-term residence titles for immigration, the corresponding number for the years between 1998 and 2002 are: 21,501 (1998), 23,465 (1999), 40,033 (2000), 29,729 (2001), and 22,905 (2002). Immigration control in idem, 2003, p. 21.
[448] Manual for immigration in idem, 2004, p. 138.
[449] Notification (tsūtatsu) of the Ministry of Justice, July 30th, 1996.
[450] The child receives the title ‘spouse etc. of a Japanese national’. Since there was no suitable residence title for the mother, she only had the choice to depart from Japan and to take the child with her after her residence period expired or to remain as overstayer. Lately this residence title was also awarded to the foreign mother who had no residence title at all and resided in Japan illegally.
[451] Manual for immigration in idem, 2004, p. 144. Problems in these cases arise with proving the alien’s date of the smuggled entry in Japan. Since smuggled aliens avoid all landing procedures and often destroy their own papers, there is no written evidence of when they entered Japan. Official documents obtained in Japan soon after the entry, like a birth certificate for a child born in Japan, may serve as substitution.
[452] Idem, p. 140.
[453] Research cites the case of a single American (aliens married to Japanese nationals always have the option of the ‘spouse of a Japanese national’ residence title!) English teacher who applied successfully for the ‘long-term’ residence title after a stay of ten years. Additional favorable circumstances included stable living conditions and a stable and sufficiently high income.
[454] Yamata/ Kuroki in idem, 2004, p. 52.
[455] Manual for immigration in idem, 2004, p. 146.
[456] Yamada/ Kuroki in idem, 2004, p. 92.
[457] Manual for immigration in idem, 2004, p. 146.
[458] Kokusaijinryū, Nov. 1998.
[459] Yamada/ Kuroki in idem, 2004, p. 92.
[460] Departing from Japan without obtaining a reentry permit interrupts the ‘continuous’ residency.
[461] If the marriage was contracted abroad, the marriage has to last already for three years and additionally one year of residency in Japan is required.
[462] Yamada/ Kuroki in idem, 2004, p. 93.
[463] This period of colonial rule is commonly known as Ilje Sidae in Korean.
[464] Fukuoka, Koreans in Japan, 1996, p. 1 et sqq.
[465] These measures included the compulsory use of Japanese names (family and first names) instead of the original Korean names, the complete replacement of Korean subjects like Korean geography and history by its Japanese counterparts, and the duty to revert (Japanese) Shinto shrines and religion.
[466] Most immigrants to Japan came from the Southern areas of Korea e.g. Cheju-do, Cholla-do or Kyongsang-do while Koreans from the Northern areas moved to the Manchuria.
[467] Women additionally were taken into military brothels as comfort women, which is nothing but a cover-up for forced prostitution.
[468] Fukuoka/ Tsujiyama, MINTOHREN, 1992, p. 147 et sqq.
[469] Besides economical problems and poverty, soon the division of the peninsula in today’s North and South Korea became immanent.
[470] “Immigration Control Special Law for Persons having lost their Nationality as Consequence of the Peace Treaties” entering into force 1st Nov. 1991.
[471] Law No. 71 from May 10th, 1991.
[472] Art. 2 (1) Special Immigration Control Law.
[473] Yamada/ Kuroki in idem, 2004, p. 116.
[474] Koreans from the later South Korea had to wait until 1965 to receive permanent residence titles based on an agreement between Japan and South Korea in 1965, while Koreans from the later Democratic People’s Republic of Korea (North Korea) had to wait until 1982 for the same permanent residence title.
[475] Art. 2 (2) cif 2 Special Immigration Control Law.
[476] It is possible to register these children as dual-nationals upon birth in order to allow the children to choose their preferred nationality upon reaching majority. While the Japanese nationality seems the more preferential and favorable one for living in Japan, the child’s identification with its foreign i.e. Korean or Taiwanese heritage may make the child hold on to the foreign nationality.
[477] Immigration control in idem, 2003, p. 35.
[478] Idem, p. 34.
[479] Compare: 3.3.1.1. Applicability and Adequacy.
[480] Manual for immigration in idem, 2004, p. 49.
[481] Art. 20 cif 3 ICA.
[482] Manual for immigration in idem, 2004, p. 49.
[483] The ‘short-term’ residence title was mentioned before: FN 443.
[484] Idem, p. 50.
[485] Idem, p. 50.
[486] Idem, p. 51.
[487] The number of students changing from a student residence title like ‚college’ or ‚pre-college’ student to a work-related residence title increased slightly between 1998 and 2002. Numbers are 2,391 (1998), 2,989 (1999), 2,689 (2000), 3,581 (2001) and 3,209 (2002). Immigration control in idem, 2003, p. 39.
[488] Art. 20 ICA/Ord. Applicants under the age of 16 years can be represented by their relatives.
[489] Manual for immigration in idem, 2004, p. 52.
[490] Yamada/ Kuroki in idem, 2004, p. 85.
[491] Manual for immigration in idem, 2004, p. 54.
[492] Ogino in idem, 2000, p. 39.
[493] Manual for immigration in idem, 2004, p. 56.
[494] Yamada/ Kuroki in idem, 2004, p. 81.
[495] Idem, p. 82.
[496] Manual for immigration in idem, 2004, p. 57.
[497] Yamada/ Kuroki in idem, 2004, p. 82.
[498] Usually the renewal application should be submitted between one month and ten days before the expiration of the residence title. Yamada/ Kuroki in idem, 2004, p. 80.
[499] Manual for immigration in idem, 2004, p. 58.
[500] Yamada/ Kuroki in idem, 2004, p. 83. This provision is very important, if later (e.g. for a ‘permanent’ residence title) the continuous stay in Japan needs to be proved. If the new residence period would not immediately connect to the former, expired residence period the continuous stay would be disrupted.
[501] Homepage of the Ministry of Justice, http://www.moj.go.jp/ENGLISH/IB/ib-16.html, May, 2nd, 2005.
[502] Immigration control in idem, 2003, p. 147.
[503] Manual for immigration in idem, 2004, p. 29.
[504] Idem, p. 30.
[505] Art. 69-2 ICA.
[506] Art 61-2 ICA/Ord.
[507] Manual for immigration in idem, 2004, p. 75.
[508] Idem, p. 31.
[509] Idem, p. 30.
[510] Nyūkoku kanri senta.
[511] Nyūkokusha shūyō nyūkoku kanri senta.
[512] Homepage of the Ministry of Justice, Immigration Control, June 4th 2005, http://www.immi-moj.go.jp/soshiki/index.html
[513] Manual for immigration in idem, 2004, p. 163c.
[514] Ministerial decree (shōrei) No. 59 from 10th November, 1981.
[515] Including the Immigration Inspector (shinsakan), the Special Inquiry Officer (tokubetu shinsakan) and the Supervising Immigration Inspector (shunin shinsakan).
[516] Immigration control in idem, 2004, p. 148.
[517] This decrease in the number of civil servants working in the Ministry must not be regarded isolated for the Immigration Control Administration. The later half of the Nineties in Japan’s Administration is generally characterized by several far-reaching reforms that aimed at modernizing the Administration. Among the four big pillars of these reforms was also the dramatic reduction of the Administration (the other three being: the creation of an effective political leadership over the Administration, the restructuring of all national administrative agencies, and an increase of transparency of the Administration). For further discussions refer e.g. Takada, Die “Verwaltungsreform”, 2002, p. 265 et sqq.
[518] Legomsky, The New Techniques, 1997, criticizes similar backlog problems related to understaffing in the context of the American refugee recognition system. He notes the general tendency of countries to avoid short-term resources (e.g. an increase of staff) to the expense of long term efficiency gains.
[519] Manual for immigration in idem, 2004, p. 85.
[520] The original short-title is ‘Fremdengesetz’ and the long-form is ‘Federal law on the entry, residence and settlement of aliens’ (Bundesgesetz über die Einreise, den Aufenthalt und die Niederlassung von Fremden); abbr.: AA
[521] From a historical perspective, Austria had no laws requiring foreign citizens to acquire residence permits or laws governing the deportation of aliens until the introduction of German laws in 1938. After 1945, Austria reverted back to liberal immigration policies based on simple provisions of e.g. the passport law until the increase of the alien population in the 80s resulted in the residence law of 1992.
[522] At the same time of the entry into force of the Schengen regulations and the border free area for Austria on April 1st, 1998.
[523] Orig.: Fremdengesetz-Durchführungsverordnung; abbr.: AA/Ord.
[524] Orig.: Fremdenpolizeigesetz; abbr.: APA.
[525] Orig.: Niederlassungs- und Aufenthaltsgesetz; abbr.: SRL.
[526] For instance in regards to the entry regulations for seasonal workers like harvest helpers and for self-employed workers. This amendment was passed in the House of Councilors on October 19th, 2005.
[527] Orig.: Ausländerbeschäftigungsgesetz (1975). Henceforth: FNEA.
[528] Orig.: Asylgesetz (1997).
[529] The Foreign Nationals Employment Act provides the basis for the inconvenient separation between a permission to reside in Austria (basing on the alien law) and the permission to pursue occupational activities.
[530] Orig.: Niederlassungsverordnung based on Art. 18 AA.
[531] Orig.: Gesundheitszeugnisverordnung based on Art. 8 (7) AA.
[532] Orig.: Integrationsvereinbarungsverordnung based on Art. 50d (4) AA.
[533] Raschauer, Allgemeines Verwaltungsrecht, 2003, p. 66.
[534] Another exceptional consequence is that e.g. state agendas become federal agendas when brought before a certain federal agency (Wechsel des Verbandsbereichs).
[535] Raschauer in idem, 2003, p. 68.
- Quote paper
- Arnold Ackerer (Author), 2006, The termination of stay of aliens, Munich, GRIN Verlag, https://www.grin.com/document/78677
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