J on how Japan’s Immigration Bureau uses unlegislated bureaucratic guidelines to trump the letter of the law, in this case re obtaining Permanent Residency
Posted by debito on December 18th, 2011
Hi Blog. Second in this series of arbitrary bureaucratic rule in Japan: Debito.org Reader J sends me this post about the tribulations he’s had getting his Permanent Residency, and how Immigration Bureau bureaucrats feel they are within their mandate to ignore the letter of the law. According to J, even when you show them their guidelines are unlawful under the law, they have replied, “That’s just a law.” Which of course calls into question the rule of law in Japan, and bureaucrats’ attitudes towards being constrained by legislation meant to preserve the consent of the governed in a democracy. Arudou Debito
November 8, 2011
Hi Debito, how’s it going? Who do you think is a good lawyer that has appealed a PR declination successfully before?
I think I have an undeniable open-and-shut appeal case in which the courts will most likely overturn an immigration officer’s illegal decline of Permanent Residency.
(Perhaps you remember, I had a car accident once 5 years ago in which I committed a crime – I received probation, since thankfully no people were hurt, only cars damaged.)
What makes [my] PR decline obviously “illegal” is that the following Law was ignored:
#1 reason for declination is: having committed a crime.
#2 reason for declination is: being financially too poor.
#3 reason for declination is: not being a profit to Japan.
The Law then nicely goes on to state that reason #1 and reason #2 can NOT be used to decline spouses of Japanese citizens.
So, this means that if an immigration officer wants to legally decline Permanent Residency to a spouse of a Japanese citizen, he is REQUIRED to claim reason #3.
My case is: I’m married to a Japanese citizen (7 years) and yet the immigration officer declined my Permanent Residence using reason #1, “previous conviction”.
So again, who do you think is a good lawyer? I’m willing to pay his standard price, plus, a 500,000 yen bonus upon successfully overturning this illegal refusal of PR.
Please let me know if you have any good ideas of who I should call. Sincerely, J
November 8, 2011
Hi Debito. Turns out I don’t need a lawyer after all.
Whoever wrote the original Law saying that reason #1 and reason #2 can NOT be used to decline spouses of Japanese citizens, their goal was clear: to let foreigners married to Japanese citizens become Permanent Residents, regardless of whether they were convicted criminals, or poor, or both.
But then, some bureaucrats within immigration with the opposite goal (limiting PRs) decided to write some new “Guidelines” which say the exact opposite.
These new “Guidelines” (which the Unelected bureaucrats proclaim “trumps” the Laws written by Elected Lawmakers) say that reason #3 includes convictions.
Any rational person looking at the original Law would say that reason #1 refers to crime (素行が善良であること = 法律を遵守) and reason #3 refers to profit:
But now, check out this crafty Heisei 15/16 “update” to the immigration Guidelines (added by unelected immigration bureaucrats) look at the ア、イ、ウ、オ additions:
Cute. So since the door was opened “too wide” by the original Law, just type up some “Guidelines” that moves the “crime disqualification” from reason #1 into reason #3, et voila!
Now, if I go to court, the court can simply say, “Well, according to this Heisei 15/16 update/addition to the immigration Guidelines (penned by Unelected bureaucrats) you lose. Boom.”
But, your honor, “reason #1″ means “didn’t follow the law” (and “reason #1″ doesn’t apply to spouses of Japanese citizens) so how can “didn’t follow the law” be added to “reason #3″?
Guidelines written by Unelected bureaucrats are REVERSING and TRUMPING the Laws written by Elected Lawmakers, plus let’s remember that these Guidelines are usually secret.
For example: the LAW says that Passports only have to be shown to immigration officers, but new GUIDELINES say that every Gaikokujin (for example: your single foreigner cousin, living in your house, with a valid visa, NOT RECEIVING KODOMO TEATE [child allowance]) must come allow the Kodomo Teate Section to copy his Passport, or else the couple with kids are penalized.
Perhaps your single foreigner cousin, living in your house, with a valid visa, NOT RECEIVING KODOMO TEATE, refuses to let some “Kodomo Teate city worker” to copy his Passport?
According to the new Kodomo Teate Guidelines, if ANY Gaikokujin living in the house refuses to hand over his Passport, the Kodomo Teate will be taken away from the couple with kids.
So now the couple with children must force any Gaikokujin roommates they are living with to submit to this unlawful new guideline, or else the couple with children will be penalized.
The couple with children do NOT have to ask their Japanese roommates to submit anything, this unlawful new guideline doesn’t dare ask JAPANESE citizens to show their passport.
The reasoning for this guideline is “foreigners spend Kodomo Teate money vacationing in Thailand, but Japanese citizens would never do that, so we don’t check Japanese passports.”
Try asking the Kodomo Teate section for a copy of this new Guideline, they won’t give a copy of it, they won’t even show it to you, because, “Our Guidelines are secret.” Seriously. (!)
Laws made by the Kokkaigin say that we DON’T have to show our Passport except to immigration officers and when getting our ARC, but: new Guidelines say Kodomo Teate as well.
If you are a Japanese person receiving Kodomo Teate, with a non-Japanese living in your house, the new Guidelines say ALL Gaikokujin MUST come show their Passport – or else.
Do the Elected Lawmakers know that their will has been reversed and trumped? Do the Elected Lawmakers know that these new guidelines are in direct conflict with national Laws?
My conversation recently with an immigration official summed it up perfectly, when I read him the Law stating that reason #1 can’t be used against me, he said, “That’s just a law!”
I couldn’t believe it, this officer actually said, in front of his co-workers, “それはただの法律だけ！” His tone was perfectly clear, “WE make the decisions around here, not laws.”
So, nevermind my request for a lawyer, I can see that since the bureaucrats within immigration have craftily moved crime from reason #1 down to reason #3, I can’t get PR, oh well.
Currently in Japan (in my opinion the best country relative to others) a sad state admittedly exists where Guidelines trump Laws: Unelected bureaucrats trump elected lawmakers.
Thanks anyway for the good work you do. Sincerely, J
PS – I wonder how the majority of Japanese citizens would feel about a Law that says,
“From now, only Elected Lawmakers (and publicly-voted initiatives) can create Laws.
And any Guidelines written by unelected bureaucrats CANNOT conflict with those Laws.
Plus all Guidelines written by unelected bureaucrats must be Public: no Secret Guidelines.”