Q: Can a Foreign National Be Denied Entry to Japan Based on Past Criminal Records? What Types of Offenses Are Considered?

Japanese Attorney at Law - Bengoshi L.L.

• 6 min read

A foreign national's past criminal record can be a significant factor in determining their admissibility to Japan. The Immigration Control and Refugee Recognition Act (ICRRA) contains specific provisions that deny landing to individuals with certain types of convictions, reflecting Japan's stance on public safety and order. This article examines Article 5, Paragraph 1, Item 4 (related to general criminal records) and Item 5 (specifically concerning drug-related offenses) of the ICRRA, detailing the conditions under which a criminal record can lead to denial of entry and the types of offenses that are scrutinized.

Denial of Landing for General Criminal Records (Article 5, Paragraph 1, Item 4)

Article 5, Paragraph 1, Item 4 of the ICRRA stipulates that a foreign national shall be denied landing if they are a person:
"who has been sentenced to imprisonment with or without work for one year or more, or to an equivalent punishment, for violation of a law or regulation of Japan or of any country other than Japan. However, this shall not apply to those sentenced for a political offense."

This provision establishes a general bar for individuals with relatively serious criminal convictions. Let's break down the key components:

1. Nature of the Conviction and Punishment

  • Violation of Law: The conviction must stem from a violation of Japanese law or the laws of any foreign country. This means that offenses committed and adjudicated outside Japan are also considered.
  • Sentence of One Year or More: The critical threshold is a sentence of "imprisonment with or without work for one year or more." "Imprisonment with work" (懲役 - chōeki) involves penal servitude, while "imprisonment without work" (禁錮 - kinko) typically does not. The item also includes "an equivalent punishment," which allows for consideration of foreign penal systems that may not have the exact same terminology but impose penalties of comparable severity and duration.
  • "Having Been Sentenced" (刑に処せられた - kei ni shoserareta): This phrase is interpreted to mean that the judgment of conviction has become final and binding. It is not limited to cases where the individual has actually served the sentence. Importantly, this includes cases where:
    • The execution of the sentence was suspended (i.e., a suspended sentence). Even if the suspension period expires without revocation and the original sentence loses its effect under Japanese criminal law (Criminal Code, Article 27), the fact of "having been sentenced" remains for immigration purposes.
    • The criminal sentence has become extinct due to prescription (e.g., Criminal Code, Article 34-2).
    • A pardon (e.g., general amnesty or special pardon under the Pardon Act) has been granted, leading to the conviction losing its effect.
      Despite these subsequent events that might nullify the practical effects of the sentence under criminal law, the historical fact of "having been sentenced" can still trigger this denial ground.

2. The "Political Offense" Exception

A significant exception is made for individuals "sentenced for a political offense" (政治犯罪により刑に処せられた者 - seiji hanzai ni yori kei ni shoserareta mono). Such individuals are not denied landing under this specific item, even if they meet the other criteria.
The term "political offense" is not explicitly defined in the ICRRA. Its interpretation generally aligns with international legal principles, often referring to offenses committed with a predominantly political motive aimed at changing the government or political system, provided they are not disproportionately heinous or contrary to fundamental humanitarian principles (e.g., acts of terrorism are typically excluded). The determination of whether an offense qualifies as "political" is made by the Japanese immigration authorities on a case-by-case basis, considering the nature of the act, the intent of the perpetrator, and the legal and political context of the country where the offense occurred.

Legislative Intent

The primary purpose of this provision is to safeguard public safety and order in Japan by preventing the entry of individuals who have demonstrated a propensity for serious criminal behavior.

Stricter Rules for Drug-Related Offenses (Article 5, Paragraph 1, Item 5)

The ICRRA takes a notably stricter stance on foreign nationals with drug-related criminal records. Article 5, Paragraph 1, Item 5 denies landing to a person:
"who has been sentenced for a violation of a law or regulation of Japan or of any country other than Japan relating to the control of narcotics, marijuana, opium, stimulant drugs, or psychotropic substances."

Key Differences from General Criminal Records

This provision differs from Item 4 in several crucial aspects, highlighting Japan's zero-tolerance policy towards drug offenses:

  1. No Minimum Sentence Requirement: Unlike the one-year imprisonment rule in Item 4, Item 5 applies regardless of the length of the sentence. Even a short term of imprisonment or a monetary fine for a qualifying drug offense can render a foreign national inadmissible.
  2. No Exception for Political Offenses: The political offense exception present in Item 4 does not apply to drug-related convictions under Item 5. This means that even if a drug offense was allegedly committed for political reasons, it would still be a ground for denial of landing.
  3. Specific Categories of Drugs: The provision lists specific categories of controlled substances: narcotics (麻薬 - mayaku), marijuana (大麻 - taima), opium (あへん - ahen), stimulant drugs (覚醒剤 - kakuseizai, e.g., amphetamines, methamphetamines), and psychotropic substances (向精神薬 - kōseishinyaku). Violations of laws controlling any of these substances, whether in Japan or abroad, fall under this item.

Legislative History and Rationale

The scope of Item 5 has expanded over time through amendments to include a wider range of controlled substances, reflecting evolving domestic drug control laws and international efforts to combat drug trafficking and abuse. For example, opium control laws were added following the enactment of the Opium Act (1954), stimulant drug control laws were added in 1981, and psychotropic substance control laws were incorporated in 1990.

The rationale for this stringent approach is multifaceted:

  • Public Health: To prevent the influx of illicit drugs and protect the health of the population.
  • Public Safety: Drug-related crime is often linked to other forms of criminality and social disruption.
  • International Cooperation: To align with international conventions and efforts aimed at combating global drug trafficking.

The interpretation of "having been sentenced" under this item is consistent with that under Item 4, meaning a final and binding judgment is required.

Common Considerations for Criminal Record-Based Denials

Several points apply to both Item 4 and Item 5:

  • Jurisdiction of Conviction: Convictions from courts in Japan or any other country are relevant.
  • Finality of Judgment: The sentence must be based on a final and binding judgment.
  • Impact on Future Entry: A denial of landing based on these grounds can have long-lasting implications. Depending on the specific offense and other circumstances, an individual may be subject to a period of denial of landing (e.g., 5 years, 10 years, or indefinitely under Article 5, Paragraph 1, Item 9, which deals with those previously deported for certain reasons). Drug offenses, in particular, often lead to a de facto lifetime ban.
  • Disclosure and Verification: Foreign nationals applying for visas or landing permission are typically required to declare any criminal history. Misrepresentation can lead to severe consequences, including denial of entry, revocation of status of residence if discovered later, and potential criminal penalties for making false statements. Immigration authorities have various means to verify information, including access to international databases and cooperation with foreign law enforcement agencies.

Potential for Special Permission to Land

While these provisions are strict, Article 12 of the ICRRA grants the Minister of Justice the discretion to issue a Special Permission for Landing (上陸特別許可 - jōriku tokubetsu kyoka) in exceptional circumstances. This allows entry even if a foreign national is inadmissible due to a criminal record or other grounds, provided there are compelling humanitarian or other reasons deemed sufficient by the Minister. However, such permission is granted sparingly, particularly for serious offenses or drug-related convictions. The existence of a criminal record falling under Article 5, Paragraph 1, Item 4 or 5 would be a significant negative factor in the discretionary decision-making process for special landing permission.

Furthermore, Article 5-2 of the ICRRA, introduced by an amendment in 2009, provides a special exemption. It allows the Minister of Justice, in certain cases where a foreign national has specific grounds for inadmissibility under Article 5, Paragraph 1, Items 4, 5, 7, 9, or 9-2, not to deny landing based solely on those specific grounds if it is deemed appropriate (e.g., if a re-entry permit was granted despite the known inadmissibility). This is a limited exception intended to address situations where a strict application of the denial grounds would be unreasonable, for instance, if the authorities had previously acknowledged the criminal record but still permitted re-entry.

Conclusion

Japan's Immigration Control and Refugee Recognition Act takes a firm stance on foreign nationals with past criminal records, particularly those involving serious offenses or any drug-related convictions. The law denies landing to individuals sentenced to a year or more of imprisonment (with an exception for political offenses) and, more stringently, to anyone sentenced for violating drug control laws, regardless of the penalty's severity or nature. The interpretation of "having been sentenced" includes cases with suspended sentences or where the conviction's legal effect has otherwise diminished. While discretionary exceptions like Special Permission to Land exist, they are not easily obtained when these grounds for denial are present. This underscores Japan's commitment to maintaining public safety and order and its zero-tolerance approach to drug-related crimes within its immigration framework.