Q: How is a "Foreign National" Defined Under Japanese Immigration Law, and What Are the Practical Implications?

The term "foreign national" (外国人 - gaikokujin) is a fundamental concept within Japan's Immigration Control and Refugee Recognition Act (ICRRA). Its definition directly impacts who is subject to the Act's myriad provisions concerning entry, residence, and deportation. Understanding this definition and its practical ramifications is essential for navigating Japan's complex immigration landscape. This article explores the legal definition of a foreign national under the ICRRA, its relationship with Japan's Nationality Act, the treatment of specific categories such as dual nationals and stateless persons, and the practical implications in immigration procedures.

The Legal Definition of a "Foreign National"

Article 2, Item 2 of the ICRRA provides a concise definition: "A foreign national means a person who does not have Japanese nationality". This exclusionary definition is straightforward—if an individual does not possess Japanese nationality, they are considered a foreign national for the purposes of Japanese immigration law and are, therefore, generally subject to its controls.

This definition was solidified in its current form by Act No. 126 of 1952. Prior to this, during the post-war occupation, the legal status of various groups, including former colonial subjects, was complex. The establishment of this clear, nationality-based definition was a crucial step in structuring modern Japanese immigration control.

Interplay with the Nationality Act

The determination of who holds Japanese nationality is governed by Japan's Nationality Act. Understanding the core principles of the Nationality Act is, therefore, indispensable for grasping the scope of who is considered a "foreign national" under the ICRRA.

Japan's Nationality Act, in principle, adopts jus sanguinis (right of blood) as the basis for acquiring Japanese nationality at birth. Article 2 of the Nationality Act stipulates that a child shall be a Japanese national if, at the time of birth:

1. The father or mother is a Japanese national.
2. The father who died prior to the child's birth was a Japanese national at the time of his death.
3. The child was born in Japan and both parents are unknown or have no nationality.

This contrasts with countries that primarily adopt jus soli (right of soil), where nationality is determined by the place of birth. Consequently, a child born in Japan to parents who are both foreign nationals does not automatically acquire Japanese nationality, unless the conditions of item 3 above are met (e.g., parents are unknown or stateless).

Foreign nationals can acquire Japanese nationality through naturalization (帰化 - kika), a process also governed by the Nationality Act (Articles 4 to 10). The Minister of Justice has the discretion to grant naturalization if certain conditions are met, including continuous residence in Japan, capacity to act, good conduct, ability to secure a livelihood, and willingness to renounce any other nationalities (as Japan generally does not permit dual nationality for adults who acquire Japanese nationality through naturalization, with some exceptions).

Once an individual acquires Japanese nationality through birth or naturalization, they cease to be a "foreign national" under the ICRRA and are no longer subject to immigration controls applicable to foreign nationals. Conversely, a Japanese national who loses their Japanese nationality (e.g., by acquiring a foreign nationality voluntarily and failing to declare their intention to retain Japanese nationality, or by renunciation) becomes a foreign national and subject to the ICRRA if they wish to enter or reside in Japan.

Treatment of Specific Categories

The simple definition of a "foreign national" encounters more complex scenarios when considering individuals with dual nationality, stateless persons, or those with historical ties to Japan.

Dual Nationals

Individuals who hold both Japanese nationality and one or more foreign nationalities are, as long as their Japanese nationality is valid, treated as Japanese nationals under Japanese law, including the ICRRA. This means that a dual national entering or departing Japan must do so as a Japanese national, typically using their Japanese passport. They are not subject to visa requirements or limitations on activities applicable to foreign nationals. However, Japan's Nationality Act generally requires Japanese nationals who acquire a foreign nationality voluntarily after the age of 20 (or before 20, then by the age of 22) to choose one nationality. Failure to do so may lead to loss of Japanese nationality under certain circumstances. If Japanese nationality is lost, the individual would then be treated as a foreign national.

Stateless Persons

Individuals who do not have the nationality of any country (stateless persons - 無国籍者 mukokusekisha) are, by definition, "persons who do not have Japanese nationality" and are therefore considered foreign nationals under the ICRRA. Their entry and residence in Japan are subject to the Act's provisions. A significant practical challenge for stateless persons can be the procurement of valid travel documents. While the ICRRA defines "passport" broadly to include refugee travel documents and other certificates in lieu of passports (Article 2, Item 5), stateless individuals may face difficulties in obtaining documentation recognized by Japanese authorities for entry. Their situation often requires careful individual assessment by immigration authorities.

Special Permanent Residents

A distinct category of residents in Japan are "Special Permanent Residents" (特別永住者 - tokubetsu eijūsha). These are individuals, primarily of Korean or Taiwanese descent, who lost their Japanese nationality following the Treaty of Peace with Japan in 1952, and their descendants who have continued to reside in Japan. Their status is not governed directly by the ICRRA but by a separate law, 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), often referred to as the Immigration Special Act (入管特例法 - Nyūkan Tokureihō).

While Special Permanent Residents are not Japanese nationals and thus technically fall under the broad definition of "foreign national," their legal status is unique and significantly different from that of other foreign nationals under the ICRRA. They have highly stable residency rights, are not subject to the same activity restrictions or period of stay limitations, and have a separate registration system (Special Permanent Resident Certificate instead of a Residence Card). The ICRRA itself acknowledges their distinct status in various provisions.

Practical Implications and Burden of Proof

The definition of "foreign national" has profound practical implications, as it determines the applicability of the entire immigration control regime. This includes:

• Entry requirements: Foreign nationals generally require a valid passport and, in many cases, a visa to enter Japan (Article 3, Article 6). Japanese nationals do not.
• Landing procedures and statuses of residence: Foreign nationals must undergo landing examinations and, if permitted to land for a period other than temporary, are granted a specific status of residence that dictates their permissible activities and period of stay (Article 2-2, Chapter III).
• Residence management: Medium to long-term foreign residents are issued a Residence Card and are subject to various notification duties (Chapter IV, Section 1, Subsection 2).
• Deportation: Foreign nationals can be subject to deportation if they fall under any of the grounds stipulated in Article 24.

A key practical issue arising from the definition relates to the burden of proof when an individual's nationality status is unclear or disputed, particularly in deportation proceedings.

The Osaka High Court judgment of December 8, 2011 (Shōmu Geppō Vol. 59, No. 10, p. 2731) provides important clarification on this point. The court held that an individual who entered Japan as a foreign national and seeks to avoid deportation proceedings by claiming Japanese nationality bears the burden of proving that claim. This can be done either by:

1. Possessing indirect documentary evidence of Japanese nationality, such as a valid Japanese passport or other official documents evidencing Japanese nationality ("occupation of status as a Japanese national").
2. Proving the substantive acquisition of Japanese nationality under the Nationality Act (e.g., through birth to a Japanese parent).

In the specific case, the appellant claimed Japanese nationality through their mother, arguing she had acquired it by descent. However, the court found that the appellant failed to provide sufficient evidence to prove the mother's acquisition of Japanese nationality under the jus sanguinis principle. Consequently, the court could not recognize the appellant as a Japanese national and upheld the application of deportation procedures applicable to foreign nationals.

This judgment underscores that merely asserting Japanese nationality is insufficient; it must be substantiated with credible evidence. In the absence of such proof, immigration authorities are entitled to treat the individual as a foreign national based on their initial entry records or other available information. This principle is vital for maintaining the integrity of the immigration control system, ensuring that individuals cannot easily evade immigration controls by making unsubstantiated claims to Japanese nationality.

The implications are significant for individuals whose nationality may be complex due to historical reasons, mixed parentage, or issues with official records. They must be prepared to affirmatively demonstrate their Japanese nationality if they wish to be treated as such and avoid the application of the ICRRA as a foreign national. For immigration authorities, this means that while they must respect claims of Japanese nationality, they are also empowered to require robust proof, particularly when an individual has previously presented themselves as a foreign national or lacks standard documentation.

Conclusion

The definition of a "foreign national" in Article 2, Item 2 of Japan's Immigration Control and Refugee Recognition Act as "a person who does not have Japanese nationality" is deceptively simple. Its application is deeply intertwined with the Nationality Act and gives rise to specific considerations for various categories of individuals, including dual nationals, stateless persons, and Special Permanent Residents.

The practical implications of this definition are extensive, dictating an individual's rights and obligations concerning entry, stay, and potential removal from Japan. As highlighted by case law, the burden of proving Japanese nationality, especially when seeking to avoid treatment as a foreign national in immigration proceedings, rests firmly on the individual making the claim. A thorough understanding of this definition and its interplay with nationality law is therefore fundamental for anyone dealing with the Japanese immigration system, ensuring clarity on who is subject to its comprehensive framework of controls and procedures.