I INTRODUCTION TO THE IMMIGRATION FRAMEWORK
i Legislation and policy
Tokyo's long-time basic policy on the granting of work authorisation has been to accept only highly skilled workers who may not have a detrimental effect on the Japanese workforce. However, as a result of recently introduced special programmes and a technical intern visa to fill the labour shortage in the low and mid-skilled worker market, the number of foreign residents increased to 2,561,848 at the end of 2017, which was an increase of 7.5 per cent from the end of the previous year. It still was only about 2.02 per cent of the total population of Japan (126.6 million people) – one of the lowest ratios among Organisation for Economic Co-operation and Development countries.
Besides the working and activity-based status categories, there are resident status categories that are 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. On the other hand, 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.
Residence status-related Japanese immigration policies are contained within 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.
Recent trends in Japanese immigration policy can be observed in the Basic Plan for Immigration Control published in September 20153 and the 2017 Immigration Control Report.4 Topics discussed in the report include 'Call for a national debate on the acceptance of foreign nationals in light of the declining birthrate and ageing population' and 'Effort to realise a tourism-oriented country other than the smooth acceptance of foreign nationals vitalising the Japanese economy and society'. With regard to strategies to provide strong incentives for foreign nationals able to revitalise Japanese society, a special programme for highly educated and highly skilled foreign nationals that would enable them to obtain permanent residence within a shorter residence requirement period is included in the report. The need to attract and accept foreign workers in the medical field, particularly to care for Japan's growing elderly population, is also discussed. These topics will surely affect foreign nationals who are interested in migrating to Japan.
ii The immigration authorities
Ministry of Justice and Ministry of Foreign Affairs
Two branches of the government of Japan deal with immigration matters on a day-to-day basis: the Ministry of Justice (MOJ), to which the regional immigration bureaus belong; and the Ministry of Foreign Affairs (MOFA), to which overseas embassies and consulates of Japan belong.
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 mid-skilled workers are first screened by another ministry before their applications are considered by the immigration authorities of the MOJ. 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 bureau conducts its assessment for the issuance of visas. Similarly, temporary construction and shipbuilding workers are supervised by the Ministry of Land, Infrastructure, Transport and Tourism; apprentices undertaking on-the job training in authentic Japanese kitchens fall within the purview of the Ministry of Agriculture, Forestry and Fisheries; and temporary transferees between factories overseas and Japan are assessed by the Ministry of Economy, Trade and Industry before their applications are dealt with by the MOJ.
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 certain industries welcoming foreign workers more than other industries. Currently, Japan appears to need more highly educated and highly skilled workers to survive aggressive competition in the global market. In addition, being the most rapidly ageing country among advanced nations, nurses and care workers for the elderly are also required now more than ever. Judging from recent changes to ministerial ordinances, the medical services industry is one area that is about to welcome more foreign workers, although there are many practical difficulties, such as the language barrier. This development is discussed below.
The recent programmes that allow foreign nationals to work on construction sites and in factories – under certain conditions and within a prescribed framework on the premise of the involvement, to a certain extent, of the ministries and agencies with jurisdiction over the work – favour the construction industry and manufacturers.
II INTERNATIONAL TREATY OBLIGATIONS
In relation to Japanese work visas, three programmes favour certain nationalities 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 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 exemption. This language barrier has effectively hampered many from benefiting from the merits of 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 Minister of Foreign Affair web site at www.mofa.go.jp/j_info/visit/visa/short/novisa.html.
III THE YEAR IN REVIEW
The country seems to have become a popular destination for tourists from around the world, especially from China, South Korea, Taiwan and other Asian countries. Japan received over 25 million new arrivals in 2017.
The number of foreign residents with working status has seen a steady increase in recent years, as shown in the table below.
|Foreign resident work status||2013||2015||2017|
|Engineers; specialists in humanities; international services||115,357||137,706||189,273|
|Highly skilled professionals||n/a||1,508||7,668|
|Total foreign residents with work status registered at end of year||2,066,445||2,232,189||2,561848|
i New programmes and regulations implemented in 2017
The relaxation of visa requirements for short-term stay for nationals of the Russian Federation started on 1 January 2017. The scope of applicants eligible for multiple-entry visas for a short-term stay for business purposes, and for cultural and intellectual figures, will be expanded. In addition, the validity period of the visas was extended to a maximum of five years. The multiple-entry visas (terms of validity: three years, period of stay: 30 days maximum) for a short-term stay were newly introduced. The letter of reference from a guarantor was abolished for applicants of visas for short-term stays if they travel to Japan self-financed.
Relaxation of visa requirements for Indian students came into effect on 1 February 2017. Specifically, students, graduate students and alumni (within three years of graduation) of most universities in India will be allowed to submit a certificate of student status or graduation instead of documents confirming financial capability in the application for a single-entry visa for a short-term stay with the purpose of tourism.
The Cabinet decision on the extension of period of stay for candidates for nurses and certified careworkers from Indonesia, the Philippines and Vietnam based on economic partnership agreements (EPAs) was made on 3 February 2017. The decision will allow those candidates who entered Japan in the fiscal year of 2014 and 2015 but did not pass the final Japanese national examinations to extend their period of stay for an additional period of one year when certain conditions are met.
On 8 May 2017, the additional conditions relaxing the visa requirements for Chinese citizens included the following. Chinese citizens with sufficient financial capability and their families may be issued multiple-entry visas valid for three years and with a period of stay of up to 30 days for each visit (the initial visit is limited to sightseeing only). Chinese individuals with substantially high incomes and their families (valid for five years, with a period of stay of up to 90 days allowed for each visit) are not limited to first visits to Japan for sightseeing and may also come for business affairs and visits to relatives or acquaintances. Additionally, the use of this visa applies to individuals who are able to arrange their plane tickets and accommodation themselves without having to use a travel agency. Documentation for single-entry visa applications for individual tourists will be simplified for individuals with (gold) credit cards.
The relaxation of the visa requirements for short-term stay for nationals (ordinary passport holders) of five Central Asian countries (Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan and Uzbekistan) and Georgia came into effect for applications submitted on or after 5 June 2017. The scope of applicants eligible for multiple-entry visas for short-term stays with business purposes, and for cultural and intellectual figures, was expanded and, in addition, the validity period of the visas will be extended from three years to five years maximum. The letter of reference from a guarantor is not required for short-term-stay visa applicants if they are self-financing their travels to Japan.
A new status of resident caregiver was added in November 2017.
Under the Technical Intern Law, which became effective on 1 November 2017, the initial supervising authority is transferred to the organisation approved by the MOJ and the Ministry of Health, Labour and Welfare to ensure fairer treatment for foreign interns and workers.
Permanent residency is now available after only a one-year stay for those with highly skilled professional (HSP) status with 80 points or more in the points-based evaluation system, for applications made after April 2017.
On 1 January 2017, a new sanction was added. A person who has been granted permission for landing, extension, change of status, permanent residency or other permissions by deceit or other wrongful means or a person who has made the above acts easier to commit for the purpose of profits shall be punished with imprisonment with work for not more than three years or a fine not exceeding ¥3 million, or shall be subject to the cumulative imposition of imprisonment and a fine.
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;
- technical intern: acquiring skills, etc., on the basis of an employment contract with an organisation in Japan; and
- highly skilled professionals I and II.
Only workers from seven of the above categories (instructor, researcher, engineer, specialist in humanities, international services, caregiver, skilled labour, 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 status holder 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 Bureau belongs to the Ministry of Justice, while embassies and consulates belong to the Ministry of Foreign Affairs, with both ministries making their own decisions from the deference viewpoints. Rejection of a visa application, despite the issuance of a certificate, may occur.
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.
After the foreign national's landing and the commencing of his or her job, the employer must notify the employment and discharge of each foreign worker to the Ministry of Health, Labour and Welfare via the local public employment security office. 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 from 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, among the required documentation, many documents concern the employer itself. The Japanese Immigration Bureau 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.
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, the Czech Republic, France, Germany, Hungary, India, Ireland, Korea, the Netherlands, Spain, Switzerland, the United Kingdom and the United States. Additionally, Italy, Luxembourg, the Philippines and Slovakia 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 but only to highly skilled professional visa holders with a score of 80 points or more.
VI OUTLOOK AND CONCLUSIONS
Japan has been facing many challenges, such as an ageing society, shrinking workforce and very high sovereign debt. Looking at recent changes and developments in the law and policies on Japanese immigration, it appears that the basic attitude of the Japanese government is gradually changing from a passive acceptance of skilled foreign nationals to a more active encouragement of the migration of highly skilled foreign workers to Japan by facilitating their entry. At the same time, the government is also showing signs of accepting low-skilled workers to fill labour shortage areas despite the long-established principle of only accepting highly skilled foreigners.
1Masahito Nakai is the founder of Nakai Immigration Services LPC. The information in this chapter was accurate as at May 2018.
3Fifth edition, available at www.immi-moj.go.jp/seisaku/2015_kihonkeikaku_honbun_pamphlet_english.pdf.