By Joy Kwak
In an increasingly globalized world with rising protectionist and nationalist attitudes, many countries are confronting migrant workers, immigrants and refugees with restrictive and illiberal policies in order to limit immigration. These measures, however, are also combined with detentainment policies. A highly contested topic, detention is meant to be “an administrative measure to ensure that migrants cannot abscond while preparation for deportation are being made” (Leekers and Kox 2017: 895), yet it often presents a dangerous threat and surveillance by the state to migrant workers, immigrants, refugees and other disempowered peoples. What does detention look like in a democratic country with a stable political and judicial system? What is the impact of detainment on migrant workers and immigrants who have failed to comply with the immigration laws of the country? How does detention affect labour flows, migrant work and the perception of “disposable” temporary workers?
In this interview, I take you to Japan: an economic powerhouse, stable democracy, and a country known for its increasing reliance on migrant workers. Meanwhile, the Japanese government’s immigration laws and detainment practices also oppress and deprive the rights of many migrant workers, immigrants, illegal migrants and refugees – topics which are not commonly discussed in Japanese society for fear of governmental retaliation. The following interview features Professor Kazue Takamura, a professor in the Institute of Studies in International Development (ISID) at McGill University and an expert in Japanese migration and detainment policies, who shared her thoughts on the illiberalism of Japan’s detention policies with Catalyst.
Please note that some phrases have been paraphrased by Catalyst in order to fit the format and length of this interview. All emphases are original.
Catalyst: What is the purpose of immigration detention?
Professor Takamura: “Immigration detention is a highly contested yet universally applied administrative tool that allows the state to coercively control the mobility of non-citizens. [It] increasingly serves as an imperative technology of power of the state to control, deter, and punish migrant mobility from the Global South. Based on the legal definition, it is perceived as a technical, non-punitive, temporary, therefore rational measurement to remove ‘an individual who violated immigration law’ from the territory.
The legal definition thus does not suggest the tangible human rights violations that are produced by the purposeful act of depriving someone’s freedom. Universally speaking, detained migrants experience a myriad of rights deprivations. These include the deprivation of the right to: (a) mobility, (b) challenge the legality of detention (Habeas Corpus), (c) challenge the duration of detention, (d) remain healthy during long-term detention, (e) adequate medical treatment, (f) communication and unification with family members and the outside world, and (g) necessary legal information and documents.”
Catalyst: How does the immigration detention system in Japan demonstrate an illiberal understanding of immigration and law?
Takamura: “According to Japan’s Immigration Control and Refugee Recognition Act, the Immigration Bureau can detain a foreign national when ‘there are reasonable grounds to believe that the individual violated the immigration law.’ Japan’s Immigration Bureau establishes its exclusive legal authority based on a detention order (maximum 60 days) or a deportation order (no maximum limit of detention duration). Japan’s lack of a fair and accountable immigration detention system is especially evident in the overwhelming presence of: a mandatory detention policy (especially mandatory detainment of refugees/asylum-seekers upon their arrivals); indefinite detention; repeated denials of provisional release; repeated detention; and abusive usage of “provisional release.
For example, two Iranian detained migrants who were on hunger strikes between May and June 2019 were provisionally released in July 2019. However, they were immediately re-detained after two weeks. [T]he Immigration Bureau uses this legal remedy to control and punish migrants without status. Migrants under provisional release constantly face the fear of re-detention, ban on employment, and travel restrictions.”
Catalyst: How do detention policies and strict immigration laws affect the wellbeing of detainees?
Takamura: “The explicit concerns for the well-being of detainees are profoundly missing in the global immigration detention regimes. Detainees overwhelmingly experience (a) excessively prolonged waiting times (more than 2 weeks to a month) to see a health professional, (b) denied access to adequate clinical treatment outside the detention facility, (c) abusive usage of sleeping pills, pain killers, and depression pills by immigration guards, (d) excessive force and surveillance tools that are used during detainees’ hospital visits (outside the detention facility), and (e) restricted access to emergency medicines that are essential to prevent a life-threatening situation.
For example, I met a Filipino national with heart disease who has been detained for more than 3 years and 10 months since March 2016 in the East Japan Immigration Detention Facility. He was denied his right to seek adequate medical treatments as well as the right to access emergency medicine when he had heart attacks in 2017. He was told to take a cold shower by an immigration guard while suffering from heart pains. He eventually passed out and was sent to a hospital. While his current health condition may induce severe heart attacks at any time, his access to the essential medication (to stop heart attacks) is severely restricted. He lives with the fear of death and deportation. Although he has a Japan-born daughter (15 years old) in Nagoya and he lived in Japan for more than 25 years, he is not considered a rights-holder. His rights are diminished as a ‘deportable alien’ due to his violation of the immigration law ([because he] overstayed his trainee visa).”
Catalyst: How are labour migration and immigration detention connected in Japan?
Takamura: “Japan’s aging, and thus less-productive population, a consequence of extremely low fertility rates, has pushed the government to adopt flexible labor import policies to fulfill the country’s severe labor shortages. The number of officially employed foreigners increased nearly twofold from 686,000 in 2011 to 1.27 million in 2018 […] and 75% of the employed foreigners were temporary residents (The Cabinet Office 2018). Japan’s exclusive nature of immigration policies is especially evident in the country’s overdependence on foreign trainees and international students. The foreign trainee program (officially called “Technical Intern Trainee Program (TITP)) serves as the key ‘side-door’ program to obtain […] cheap and disposable laborers from low-income Asian neighbors. TITP is heavily criticized as being “synonymous with a gamut of human rights violations including overwork, underpayment, sexual harassment, and passport confiscation.
In 2019, the government further expanded its temporary foreign worker programs by introducing two new residency categories called tokutei ginou (‘special skills’) including high-skilled and low-skilled categories. The primary goal here is to attract low-skilled temporary foreign laborers who are equipped with special work ‘skills’ as well as ‘the ability’ to communicate in Japanese. Despite this, the Japanese government continues to deny any prospect of Japan becoming an immigrant nation. The solidification of the immigration detention system is not surprising as it is considered as an imperative solution to the expansion of temporary foreign workers, especially to ensure the temporary presence of these foreign workers. As scholars suggest, the neoliberal expansion of low-skilled labor mobility is inherently associated with the intensification of migrant labor discipline and surveillance.”
Catalyst: You mentioned that one of the main reasons why immigration detention systems can be so illiberal and oppressive is because of a lack of fair monitoring and regulations set by an established judicial system. How does this same problem appear in Japan and other well-established democratic nations?
Takamura: “The presence of a fair detention assessment system significantly varies across countries. Canada’s Immigration and Refugee Board (IRB), for example, serves as a third and independent public body that has the authority to review the legal necessity of detention or removal of the non-citizen. Canada thus establishes an institutional mechanism to constrain Canada Border Services Agency’s power to detain and deport migrants (at least, on paper). [Meanwhile], Japan’s immigration detention system significantly lacks procedural guarantees because the government does not establish a third independent and autonomous body to review the legal necessity of detention or removal of the non-citizen. Due to the exclusive legal authority of the Ministry of Justice as well as the limited availability of fair legal remedies, migrant detainees experience significant barriers and disadvantages in terms of challenging the legality of one’s detainment. Although Japan has established a detention monitory body called ‘the Immigration Detention Facilities Visiting Committees,’ [it] lacks the actual capacity to examine the human rights violations in Japan’s immigration detention facilities. The members are appointed and paid by the Ministry of Justice. In short, Japan’s immigration detention system perpetuates injustice towards detained migrants supported by the country’s judicial system.
The UN Human Rights Committee stipulates ‘every decision to keep a person in detention should be open to review periodically so that the grounds justifying the detention can be assessed.’ International human rights laws, including UDHR, the Refugee Convention and the Convention against Torture, promote the standard norms of human rights protection towards migrants and refugees. However, as scholars highlight, these are not seriously implemented by the state, [as they] do not have institutional mechanisms to reinforce these norms and punish those countries that violate laws.”
Detention centres are crucial for enforcing immigration laws and discouraging or encouraging migrant workers, refugees, and immigrants to react in a certain way according to the state’s agenda. However, as Professor Takamura argues, they can present a great threat to the detainees’ health and well-being, as well as a clear obstruction of their human rights. Through this thought-provoking interview, Professor Takamura helped us understand the illiberalism behind Japan’s detainment policies, and how similar policies are being uncontested and echoed in countries around the world.
Edited by Shannon Benson