Japan maintains a robust immigration control system, and unauthorized entry into or landing on its territory carries significant legal consequences, including criminal penalties. The Immigration Control and Refugee Recognition Act (ICRRA) clearly defines what constitutes illegal entry and illegal landing and stipulates the punishments for such violations. Furthermore, while the law is strict, it also contains provisions for potential leniency under specific circumstances for recognized refugees. This article delves into Article 70, Paragraph 1, Items 1 and 2 of the ICRRA, which address these offenses, and Article 70-2, which provides for exemptions for refugees.

Defining Illegal Entry and Illegal Landing

Understanding the distinction between "illegal entry" and "illegal landing" is crucial, as they are separate, though often related, offenses.

• Illegal Entry (不法入国 - fuhō nyūkoku): This primarily refers to a violation of Article 3 of the ICRRA. Article 3 generally prohibits a foreign national from entering Japan (meaning entering its territorial land, sea, or airspace) unless they possess a valid passport (and a visa issued by a Japanese consular officer, if required, subject to visa exemptions and re-entry permits). Thus, illegal entry occurs when a foreign national penetrates Japan's borders without the requisite valid travel documents.
• Illegal Landing (不法上陸 - fuhō jōriku): This refers to the act of a foreign national physically disembarking onto Japanese soil without having received landing permission from an Immigration Inspector. This includes not only standard landing permission but also various special landing permissions (e.g., port-of-call landing, transit landing, crew landing). Even if a foreign national somehow enters Japanese territorial waters or airspace, the act of setting foot on Japanese land without authorization constitutes illegal landing.

Often, an act of illegal entry will be followed by an act of illegal landing, but they are distinct concepts in law.

Penalties for Illegal Entry and Illegal Landing (Article 70, Paragraph 1, Items 1 & 2)

Article 70, Paragraph 1 of the ICRRA specifies the criminal penalties for these offenses:

• Item 1 (Illegal Entry): "A person who has entered Japan in violation of the provisions of Article 3..."
• Item 2 (Illegal Landing): "A person who has landed in Japan without receiving landing permission, etc. from an Immigration Inspector..."

For both of these offenses, the prescribed penalty is:
Imprisonment with or without work for not more than 3 years OR a fine not exceeding 3 million yen.

Furthermore, the ICRRA explicitly states that both imprisonment and a fine can be imposed concurrently (併科 - heika). This means an individual convicted of illegal entry or landing could face both a prison sentence and a significant monetary penalty.

Administrative Consequences: Deportation

In addition to these criminal penalties, engaging in illegal entry or illegal landing also constitutes grounds for deportation under Article 24 of the ICRRA:

• Illegal entry (violating Article 3) is a ground for deportation under Article 24, Item 1.
• Illegal landing (without permission) is a ground for deportation under Article 24, Item 2.

Thus, a foreign national convicted of these offenses will typically face deportation procedures after serving any criminal sentence or paying any fine.

Historical Trend of Penalties

The penalties for these offenses have been strengthened over time, reflecting Japan's commitment to border security. For instance, amendments in 1997 significantly raised the maximum fine. The 1999 amendments changed the wording from allowing either imprisonment or a fine to imprisonment or/and a fine, explicitly permitting the concurrent imposition of both penalties, thereby underscoring the seriousness with which these violations are viewed.

Related Offenses: Attempt, Preparation, Incitement, and Aiding/Abetting (Article 70, Paragraphs 2-6)

The ICRRA extends criminal liability beyond the completed acts of illegal entry or landing. Article 70 also penalizes:

• Attempt (Paragraph 2): Attempting to commit the offenses listed in Paragraph 1 (including illegal entry and landing) is punishable.
• Preparation or Conspiracy (Paragraph 3): Preparing or conspiring with the intent to commit the offenses in Paragraph 1, Item 1 (illegal entry), Item 3 (illegal stay by group stowaways), or Item 4 (engaging exclusively in unauthorized activities after illegal entry/landing by those under Item 1 or 2) is punishable.
• Incitement (Paragraph 5): Inciting another person to commit the offenses in Paragraph 1 (excluding Items 5, 7, and 8 related to overstaying or specific permit violations) or Paragraph 3 (preparation/conspiracy for certain offenses) is punishable.
• Aiding and Abetting (Paragraph 6): Knowingly aiding another person to commit the offenses in Paragraph 1 (excluding Items 5, 7, and 8) or Paragraph 3 is punishable. This includes acts such as providing transportation, funds, or information to facilitate illegal entry or related preparatory acts.

The penalties for these ancillary offenses are typically imprisonment for varying terms (e.g., up to 2 years for preparation/conspiracy, up to 1 year for incitement or aiding/abetting) or fines (e.g., up to 2 million yen or 1 million yen respectively), with the possibility of concurrent imposition. These provisions aim to deter and punish not only those who directly commit illegal entry/landing but also those who are involved in planning or facilitating such acts.

Special Exemption from Punishment for Refugees (Article 70-2)

While the penalties for illegal entry and landing are severe, Article 70-2 of the ICRRA provides a crucial exception, allowing for the potential exemption from punishment for individuals who are recognized as refugees. This provision is intended to implement the spirit of Article 31, Paragraph 2 of the 1951 Refugee Convention, which states that Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

Article 70-2, Paragraph 1 of the ICRRA stipulates that a person who has committed an offense under Article 70, Paragraph 1, Item 1 (illegal entry), Item 2 (illegal landing), or Item 5 (illegal stay/overstay), and who falls under all of the following conditions, may be exempted from punishment:

1. Direct Arrival from a Territory of Threat: The person must have entered Japan directly from a territory where their life, body, or physical liberty was threatened for reasons prescribed in Article 1, A (2) of the Refugee Convention (i.e., race, religion, nationality, membership of a particular social group, or political opinion).
   • The term "directly" (直接 - chokusetsu) is a key element and is generally interpreted to mean that the person did not find effective protection or settle in a third country before arriving in Japan. Brief transit through other countries may not necessarily disqualify them if they did not have an opportunity to seek or obtain protection there.
2. Prompt Presentation to Authorities and Explanation: The person must have presented themselves without delay (遅滞なく - chitai naku) to an Immigration Inspector, Immigration Control Officer, police official, public prosecutor, or other national or local public official after entering Japan (or after becoming aware of their illegal stay), and must have explained the reasons for their illegal entry, etc.
   • "Without delay" is assessed on a case-by-case basis, considering the circumstances of their arrival and their ability to contact authorities.
3. Application for Refugee Status: The person must have applied for recognition of refugee status.

Discretionary Nature of Exemption

It is important to note that the exemption under Article 70-2 is discretionary ("may be exempted" - 免除することができる menjo suru koto ga dekiru). This means that even if all the conditions are met, the authorities (typically the public prosecutor when deciding whether to indict, or the court when rendering a judgment) retain the discretion to decide whether or not to grant the exemption from punishment. This decision will likely take into account all circumstances of the case, including the credibility of the refugee claim and the manner of entry.

This provision is a critical safeguard intended to ensure that genuine refugees seeking protection are not unduly penalized for the irregular manner in which they may have been forced to enter the country. However, the strict conditions and the discretionary nature of the exemption mean that its application requires careful consideration of each individual case.

Legal and Practical Implications

Engaging in illegal entry or landing in Japan carries severe legal ramifications:

• Criminal Prosecution: As detailed, individuals face the risk of imprisonment and/or substantial fines.
• Deportation: Conviction for these offenses invariably leads to deportation from Japan.
• Re-entry Ban: Following deportation, individuals are typically barred from re-entering Japan for a significant period (usually 5 or 10 years, or even indefinitely in some cases).
• Difficulties in Future Immigration Applications: A record of illegal entry or landing will severely prejudice any future attempts to legally enter or reside in Japan or other countries that share immigration information.

These consequences underscore the importance of adhering to Japan's established immigration procedures. For those genuinely fleeing persecution, the provisions of Article 70-2 offer a potential, though not guaranteed, avenue for exemption from penalties related to their mode of entry, provided they meet the stringent criteria for invoking this refugee-specific protection.

Conclusion

Japan's Immigration Control and Refugee Recognition Act imposes strict criminal penalties, including imprisonment and substantial fines, for foreign nationals who engage in illegal entry or illegal landing. These measures are complemented by administrative sanctions such as deportation. The law also extends criminal liability to those who attempt, prepare, incite, or aid such illegal acts. However, in recognition of its obligations under the Refugee Convention, the ICRRA includes a special provision (Article 70-2) that allows for a discretionary exemption from punishment for certain offenses if the individual is a refugee who arrived directly from a territory of threat and promptly presented themselves to the authorities. This framework reflects Japan's dual commitment to maintaining robust border controls and, in specific circumstances, offering protection to those fleeing persecution.