I INTRODUCTION TO THE IMMIGRATION FRAMEWORK
i Legislation and policy
Tokyo's long-established basic policy on the granting of work authorisation only to highly skilled workers was changed explicitly with the introduction on 1 April 2019 of the new Specified Skilled Worker (SSW) labour visa status. Medium-skilled workers with SSW status are expected to fill Japan's labour shortage areas.
As well as working and activity-based status categories, Japan has resident status categories based on the applicant's relationship with Japanese nationals and permanent residents of Japan. A spouse, child or grandchild of a Japanese national is generally permitted to stay in Japan with resident status. The following resident status categories are available in Japan: permanent resident, long-term resident, spouse or child of Japanese national and spouse or child of permanent resident. These status categories have no restrictions on the range of activities that the foreign national may engage in. In contrast, the activity-based category includes work visas with restrictions on the range of activities that the foreign national may engage in. These working status categories are discussed in detail in Sections IV and V. Permanent residence in Japan can be sought only after having lived in the country for a certain period – 10 years or more in general. A person is not able to apply for a Japanese permanent residence visa when living outside Japan. Japan, unlike other countries, such as the United States, has no concept of 'immigrants' in its immigration policy. Therefore, immigration intent at the port of entry is not questioned and has no effect on a person's visa application. In other words, most workers may change their status to permanent resident status after a certain number of years' lawful stay.
The Immigration Control and Refugee Recognition Act, Cabinet Order No. 319 of 1951 (the Immigration Act),2 the Ordinance for Enforcement of the Immigration Control and Refugee Recognition Act, Ordinance of the Ministry of Justice No. 54 of 1981 and other relevant ministerial ordinances are the main sources of immigration law in Japan. In addition, the Act on Proper Technical Intern Training and Protection of Technical Intern Trainees governs technical interns and relevant organisations and the Nationality Law controls the acquisition and the loss of Japanese nationality.
Recent trends in Japanese immigration policy can be observed in the Basic Plan for Immigration Control and Residency Management published in April 20193 and the 2019 Immigration Control and Residency Management Report.4 Topics discussed in the report include 'Introduction of the statuses of residence for the acceptance of new foreign human resources', 'Establishment of the Immigration Services Agency', 'Comprehensive measures for acceptance and coexistence of foreign nationals', 'Promotion of the appropriate acceptance of foreign students', 'Status of operation of the technical intern training programme', 'Measures against illegal and imposter foreign residents in Japan, etc.', 'Promotion of appropriate and prompt refugee protection' and 'Responses to international society and international situations'.
ii The immigration authorities
Ministry of Justice, Ministry of Foreign Affairs and others
Two branches of the government of Japan deal with immigration matters on a day-to-day basis: the Ministry of Justice (MOJ), operating through the Immigration Services Agency and its eight regional immigration bureaus; and the Ministry of Foreign Affairs (MOFA), which has responsibility for overseas embassies and Japanese consulates.
If a person requires an employment-based status, his or her employer in Japan must first file an application for a certificate of eligibility at the local immigration office in Japan, which falls within the purview of the MOJ. The person is then required to present the certificate to an overseas Japanese consulate office, which is controlled by the MOFA. Upon the issuance of a working visa by the consul, the person must apply for a landing permission at the port of entry where he or she will also be subject to examination by an immigration official.
During the person's stay in Japan, his or her working status will be exclusively controlled by the local immigration office.
Some low- or medium-skilled foreign workers are first screened by another ministry before their applications are considered by the MOJ immigration authorities. For instance, under the new Technical Intern Law, which entered into effect on 1 November 2017, the MOJ and the Ministry of Health, Labour and Welfare approved the establishment of the Organisation for Technical Intern Training (OTIT).5 The OTIT examines applications for the technical intern programme before the Immigration Services Agency conducts its assessment for the issuance of visas. Similarly, before their applications are dealt with by the MOJ, SSWs are allocated only to companies belonging to associations supervised by the Ministry of Land, Infrastructure, Transport and Tourism; the Ministry of Agriculture, Forestry and Fisheries; the Ministry of Economy, Trade and Industry; and the Ministry of Health, Labour and Welfare.
In general, immigration authorities have 'broad discretion' when they make a decision on immigration matters. However, their discretion is not limitless, since it is subject to judicial review (as are administrative decisions), but only in cases where excess or abuse of discretion is found. Examples include mistakes in the recognition of material facts or extremely unjust judgments contrary to common sense, such as a clearly unreasonable interpretation of facts.
iii Exemptions and favoured industries
The difficulties that Japan faces as a society often result in foreign workers being welcome in certain industries more than other industries. The SSW status is designed to fill labour shortages in the following 14 industry fields only; care industry; building cleaning management; machine parts and tooling industry; industrial machinery manufacturing industry; electric, electronics and information-related industry; construction industry; shipbuilding and ship-related industry; automobile repair and maintenance; aviation industry; accommodation industry; agriculture; fisheries and aquaculture; food and beverages manufacturing industry; and the food service industry
II INTERNATIONAL TREATY OBLIGATIONS
In relation to Japanese work visas, three programmes favour certain nationality groups pursuant to bilateral agreements and for historical reasons: special permanent residents (those who lost Japanese nationality pursuant to the peace treaty in 1952 after the Second World War); nurses and care workers from Indonesia, the Philippines and Vietnam, pursuant to bilateral agreements; and young foreign nationals on the Working Holiday Programme.
i Special permanent residents
Special permanent residents are 'those who lost Japanese nationality pursuant to the Treaty of Peace with Japan', namely the Koreans and the Taiwanese who lived in Japan as Japanese citizens, and their descendants who were born and have lived in Japan continuously. Later generations from Korea and Taiwan or China do not qualify for this status of residence. Under the Special Act on the Immigration Control of, Inter Alia, Those Who Have Lost Japanese Nationality Pursuant to the Treaty of Peace with Japan, Act No. 71 of 1991, they are treated differently from ordinary permanent residents, since special permanent residents could be technically considered former Japanese nationals. For example, unlike ordinary permanent residents, special permanent residents are not required to state the reasons for their application during the process of naturalisation.
ii Nurses and care workers from Indonesia, the Philippines and Vietnam
Nurses and care workers are among the most needed categories of workers in Japan, which currently faces the problem of an ageing society exacerbated by a low birth rate. For nurses and care workers from Indonesia and the Philippines, both of which have signed economic partnership agreements with Japan, a special programme is available that allows them to study in Japanese schools and practise in Japan after passing the national examination for obtaining a licence (since 2008 for Indonesians and since 2009 for Filipinos). Vietnamese people were added to this programme in 2012 under the bilateral agreement between Japan and Vietnam. Because of the nature of medical services, however, professional communication skills in the Japanese language are a prerequisite, with no exemptions. This language barrier has effectively hampered many from benefiting from this programme.
iii Working Holiday Programme
The Working Holiday Programme, which enables young foreign nationals to spend a year or more in Japan while taking up part-time employment, is available for eligible foreign nationals whose home countries have reciprocal agreements with Japan. Chile joined the programme in 2018 and Argentina, Hungary and Spain joined the year before, so Japan now has agreements with 20 countries and regions. There is no limit on numbers from Australia, New Zealand, Denmark, Germany, Norway and Portugal, while a maximum number that can be issued per year is fixed with Canada, France, Austria, Poland, Slovakia, Ireland, the United Kingdom, Hong Kong, South Korea, Taiwan, Argentina, Hungary, Spain and Chile.6
iv Visa exemption agreement
Japan has taken measures concerning the visa exemption arrangements with 67 countries and regions, which are indicated in the Ministry of Foreign Affairs website at www.mofa.go.jp/j_info/visit/visa/short/novisa.html. As of 1 April 2020, visa exemption measures for over 40 countries and regions were temporarily suspended in border measures in the fight against the spread of the novel coronavirus responsible for the disease covid-19.
III THE YEAR IN REVIEW
The country became a popular destination not only for tourists from Asian countries, but also tourists from Europe and other countries around the world. The number of tourists entering Japan had been showing a steady and significant increase until the end of 2019; however, these numbers decreased unprecedentedly at the end of the 2019 fiscal year because of the global covid-19 pandemic, which originated in Wuhan in China in December 2019.
New programmes and regulations implemented in 2019
After a year-long discussion, Tokyo finally decided to admit low- to medium-skilled foreign workers to 14 labour shortage industries from 1 April 2019. The SSW system was designed to admit work-ready foreign nationals who have a certain degree of expertise and skills in industrial fields where it is still difficult to secure human resources, despite efforts having been made to improve productivity and secure domestic human resources to cope with the worsening labour shortages being experienced by small to medium-sized business enterprises. Although the government is expecting to accept more than 300,000 foreign workers over five years, as at the end of December 2019, there were only 1,621 foreigners with this new SSW status staying in Japan.
In April 2019, the Immigration Bureau, which was formerly an internal department of the Ministry of Justice, was reorganised and expanded into an external Ministry bureau, the Immigration Services Agency, to respond to the increasing number of foreign residents in Japan following the creation of the SSW visa status. The Agency will promote the new policy of 'general coordination of the development of an environment of acceptance of foreign nationals' rather than the former Bureau's original remit of 'equitable control of immigration and the residence of foreign nationals'.
IV EMPLOYER SPONSORSHIP
i Work permits
The specific work visa categories and brief descriptions of their respective permitted activities are as follows:
- professor: research, or guidance of research or education, at a university, an equivalent educational institution or a college of technology;
- artist: engaging in artistic activities that produce income, including music, the fine arts and literature;
- religious activities: missionary and other religious activities dispatched by a foreign religious organisation;
- journalist: journalistic activities based on a contract with a foreign press;
- business management: engaging in the operation or management of international trade or other businesses;
- legal and accounting services: engaging in a legal or accounting business that may lawfully only be carried out by registered foreign lawyers, certified public accountants or those with other legal qualifications;
- medical services: engaging in medical treatment services that may lawfully only be undertaken by physicians, dentists or those with other legal qualifications;
- researcher: engaging in research based on a contract with a public or private organisation in Japan;
- instructor: language instruction or other education at an elementary school, junior high school, senior high school, secondary school, school for special needs education, vocational school, miscellaneous educational institution or other educational institutions equivalent to a miscellaneous educational institution in facilities and curriculum;
- engineer, specialist in humanities, or international services: engaging in services that require technology or knowledge pertinent to physical science, engineering or other natural scientific fields, and jurisprudence, economics, sociology or other human sciences fields; engaging in services that require specific ways of thinking or sensitivity acquired through experience of foreign cultures, on the basis of a contract with a public or private organisation in Japan;
- intra-company transferee: personnel who are transferred to a business office in Japan for a limited period from a business office established in a foreign country by a public or private organisation that has a head office, branch office or other business office in Japan, and who engages in any of the activities listed within the engineer, specialist in humanities, or international services categories at the business office;
- caregiver: engaging in caregiving activities only to be undertaken by holders of licences for certified care workers after graduation from designated schools in Japan;
- entertainer: engaging in theatrical performances, musical performances, sports or any other form of show business;
- skilled labour: engaging in services that require industrial techniques or skills belonging to special fields, on the basis of a contract with a public or private organisation in Japan;
- SSWs (i) and (ii): engaging in (i) work requiring skills that need a considerable degree of knowledge or experience particular to the specified industrial field and (ii) requiring expert skills in specified industrial fields;
- technical intern: acquiring skills on the basis of an employment contract with an organisation in Japan; and
- highly skilled professionals (i) and (ii).
Only workers from eight of the above categories (instructor, researcher, engineer, specialist in humanities, international services, caregiver, skilled labour, SSW, technical intern and highly skilled professional) are required to provide evidence of a contract with an organisation in Japan, which can be an employment contract or another type of contract, at the time of application. Of these, only the technical intern category is designed for engagement of workers in low-skilled jobs for a limited period (i.e., a maximum of three years) for the purposes of acquiring skills, technology and knowledge. Family members of the technical intern and the SSW status holders are not allowed to stay with dependant visa status unlike other work visa types.
The status itself allows a non-Japanese citizen to carry out the relevant authorised activities without having to acquire a work permit.
Timeline of employment visa status
The employer in Japan and the foreign prospective employee first conclude an employment agreement, which will be in effect when the employee acquires the required work status.
The employer in Japan then applies to the relevant regional immigration bureau for a certificate of eligibility. This process typically takes two to eight weeks, excluding time spent gathering documents. Appeals to the Minister of Justice are not available, although reapplication is technically possible.
Upon receipt of the certificate, the employer forwards it to the foreign prospective employee overseas for the visa application.
The employee applies to the embassy or Japanese consulate in his or her jurisdiction for the visa based on the issued certificate of eligibility. The Japanese embassy or consulate then reviews the application documents, including the certificate, and decides whether to endorse the visa. Obtaining the certificate does not guarantee the issuance of the desired visa by the embassy or consulate. This is because the Immigration Services Agency and its regional bureaus answer to the Ministry of Justice, while embassies and consulates are the responsibility of the Ministry of Foreign Affairs, with both ministries making their decisions on the basis of their respective viewpoints. Rejection of a visa application may occur, therefore, despite the issuance of a certificate.
When the foreign prospective employee arrives at the port of entry in Japan, the immigration officer will conduct a landing examination. If the foreign national is found to be suspicious, a special inquiry officer will hold a hearing. After successful completion of the examination, a residence card will be issued along with landing permission at the airport.
Once the foreign national enters the country and commences his or her job, the foreign national's employer is required to notify the Ministry of Health, Labour and Welfare via the local public employment security office of the subsequent discharge of the foreign worker. In addition, the foreign national must register his or her residence at a municipal office.
Once the certificate of eligibility has been issued, some regional immigration offices exceptionally may allow the applicant to change his or her status while he or she is staying in Japan with temporary visitor status. In such cases, he or she does not need to appear in person at a Japanese overseas mission. It takes around a week to obtain permission for a change of status and obtain the proper working status with a certificate. The residence card is issued when permission is granted for the change of status.
ii Labour market regulation
In consideration of the influence of foreign workers on the Japanese labour market, the Japanese Ministry of Justice has laid out specific conditions for each work visa category (except those of professor, artist, religious activist and journalist) in its ministerial ordinance.
Nearly all the conditions for work visas have the requirement that the foreign worker receive a salary of no less than what a Japanese national would receive for comparable work. This is to prevent the employment of cheap foreign workers affecting the Japanese labour market and work conditions. Other conditions typically include requiring degrees or a certain amount of work experience, or both, in addition to other qualifications. This is to prevent employment of underskilled foreign workers.
One especially notable point is that many documents among the required documentation concern the employer itself. The Immigration Services Agency generally checks two things: whether the foreign national in question fits the specific criteria and whether the employer is truly financially capable of hiring the foreign national on a long-term basis, while providing adequate support. This is to prevent foreign workers being discharged for financial reasons soon after arrival.
The newly introduced SSW visa enables low- and medium-skilled foreign workers to engage in jobs only in 14 industries recognised by the government as serious labour-shortage areas.
Foreigners with a technical intern visa seeking to engage in jobs not requiring high-level skills are allowed to stay in Japan for one year only. While those with job types in certain categories stipulated by the labour ministry can extend their stay for another two years after examination, they are not allowed to bring their family members.
iii Rights and duties of sponsored employees
A sponsored employee is to engage in the activities permitted within the scope of his or her visa category. He or she may not, therefore, engage in other money-earning activities enumerated in different visa categories, unless he or she obtains either a special permit to engage in those other activities on a part-time basis, or permission to change his or her residence status to another category.
Insurance and pensions
With regards to insurance and pensions, foreign workers enjoy the same protection as their Japanese counterparts. Sponsored employees are covered by the Workers' Accident Compensation Insurance scheme, health insurance and either national pension insurance or welfare pension insurance.
Foreign workers who work in Japan for one year or more are entitled to Japanese pension benefits and must therefore pay pension premiums. When a foreign worker leaves Japan, he or she can receive a lump-sum withdrawal payment of his or her paid premiums, provided that he or she is not a Japanese national and has paid welfare pension or national pension premiums for six months or more, does not have a place of residence in Japan and has never had the right to receive any kind of pension benefits, including disability allowances.
Japan has procured social security agreements with several countries to prevent the double payment of pension premiums. The arrangements based on these agreements vary from country to country. So far, the countries that have made social security agreements with Japan are Australia, Belgium, Brazil, Canada, China, the Czech Republic, France, Germany, Hungary, India, Ireland, Korea, Luxembourg, the Netherlands, the Philippines, Spain, Switzerland, the United Kingdom and the United States. Additionally, France, Italy and Sweden have signed agreements with Japan that will become effective soon.
Sponsored employees are free to resign from their jobs, and for the rest of its term the visa basically remains valid, until its expiration date (that is, if the resigning worker finds a new position within the permitted scope of the visa category for the previous job).
If the resigning worker is uncertain about whether his or her new position is within the scope of his or her visa category, he or she may wish to consider applying for a certificate of authorised employment. On the basis of the description on the application form, the immigration control authorities check whether the foreign worker's new job is within the scope of his or her visa category; if it is, they will issue the certificate of authorised employment specifically indicating the foreign worker's authorised activities.
Foreign workers are required to report the fact that they have resigned from their job to the immigration authorities.
Furthermore, when foreign workers have failed to continue to engage in the activities permitted by their status for three months or more while residing in Japan, their status may be revoked by the Minister of Justice.
V INVESTORS, SKILLED MIGRANTS AND ENTREPRENEURS
i Investor visa status
The Japanese work status aimed at entrepreneurs is the 'business manager' visa category. The Japanese concept, however, is significantly different from its counterparts in other countries. In short, Japan does not have a programme that allows a foreign national to 'buy' a visa to live in Japan; preference is given to foreign nationals who have real businesses that are up and running, rather than those with money alone.
The particular advantage of the business manager status is that the minimum amount of money that has to be put into the business to obtain this visa is relatively small: approximately ¥5 million. This offers an opportunity to foreign entrepreneurs with only a relatively small amount of capital.
Like other working status visas, the business manager visa is activity-based. The only permitted activities are those within the scope of the status: the foreign national in possession of that status cannot engage in other money-earning activities enumerated within other visa categories. This is quite different from a status-based visa, such as that granted to the spouse of a Japanese national, and with which the foreign national can engage in any kind of activity. If the foreign national stays in Japan with a business manager visa and would like to engage in activities other than running a business, such as working for another company as an employee, he or she either has to obtain special permission to engage in those other activities on a part-time basis or change his or her residence status.
ii Self-sponsorship status
Some entrepreneurs work for their own small business without any staff members and, rather than applying for investor or business manager status, they may be able to stay under the engineer or specialist in humanities or international services. Those categories need a contract with an organisation in Japan but do not necessarily require the entrepreneur to be employed by that organisation. To be eligible for self-sponsorship status, applicants need to submit two or more contracts with organisations to the immigration authorities.
iii Skilled migrants
Permanent residence or immigrant status has never been conferred on foreigners for the purposes of work under the long-established Japanese immigration policy. However, since April 2017, this regime has been amended to permit the granting of permanent residency after one year's work in Japan to highly skilled foreigners with a score of 80 points or more in the points-based calculation table.
VI OUTLOOK AND CONCLUSIONS
The year 2019 will be known as the year that Japan made the decision to open its doors to low- and medium-skilled foreign workers and to implement measures to promote a new approach to social coexistence with foreign residents. These significant changes in government policy are expected to resolve many challenging issues, such as an ageing society, a shrinking workforce and very high sovereign debt. In fact, up until the end of 2019, the number of foreign students, workers and residents in Japan had been increasing steadily year by year; however, in facing the difficult challenges presented by the new communicable disease covid-19 in early 2020, Japan has had to tighten its borders temporarily as part of the isolation measures necessary to tackle this global pandemic. It is anticipated therefore that after overcoming the pandemic the beneficial effects of the implementation of the generous new policies for foreign citizens will revitalise both the country's economy and society in general, as will hosting the Tokyo 2020 Olympic and Paralympic Games, which have been rescheduled for the summer of 2021.
1 Masahito Nakai is the founder of Nakai Immigration Services LPC.
3 Sixth edition, available at http://www.immi-moj.go.jp/seisaku/pdf/2019_kihonkeikaku_english.pdf.