Foreign nationals who have applied for refugee status in Japan often find themselves in a legally precarious situation, particularly if they do not hold a valid status of residence while their claim is being processed. To address this instability and ensure the proper and smooth conduct of the refugee status determination procedure, Japan's Immigration Control and Refugee Recognition Act (ICRRA) provides for a system called "Permission for Provisional Stay" (仮滞在許可 - kari taizai kyoka). This permission, detailed in Article 61-2-4 of the ICRRA, allows certain asylum seekers to reside legally in Japan on a temporary basis. This article explores the purpose of this permission, who is eligible, the conditions for granting and denying it, and other key aspects of the system.

Purpose and Legislative Background

The Permission for Provisional Stay system was introduced by amendments to the ICRRA in 2004 (Act No. 73 of 2004). Prior to its establishment, asylum seekers in Japan without a valid status of residence (e.g., those who entered irregularly or overstayed their visa before applying for refugee status) were often subject to deportation proceedings concurrently with their refugee claim. Their only recourse to avoid detention during this period was often to seek provisional release (仮放免 - karihōmen) from detention, which is a separate and discretionary measure.

The primary objectives of the Permission for Provisional Stay system are:

1. To Stabilize the Legal Status of Asylum Seekers: By granting a temporary legal basis for stay, it prevents eligible asylum seekers from being treated as illegal residents solely due to the lack of a formal status of residence while their refugee claim is under examination.
2. To Facilitate the Refugee Status Determination (RSD) Process: A stable legal status allows applicants to participate more effectively in the RSD process, such as attending interviews and submitting information, without the constant fear of imminent deportation or detention for reasons unrelated to their refugee claim itself.
3. To Move Away from a Detention-Oriented Approach for Asylum Seekers (conditionally): The system aims, in principle, to avoid detaining asylum seekers who meet certain criteria while their claims are pending, recognizing the humanitarian nature of asylum applications.

This permission is closely linked with Article 61-2-6 of the ICRRA, which generally provides for the suspension of deportation proceedings for individuals who have applied for refugee status (with certain exceptions). Permission for Provisional Stay provides a positive legal status during such suspension for those who would otherwise lack one.

Eligibility for Permission for Provisional Stay (Article 61-2-4, Paragraph 1)

The permission can be granted by the Minister of Justice to a foreign national who has applied for refugee status and who is an "alien without status of residence" (在留資格未取得外国人 - zairyū shikaku mishutoku gaikokujin).

An "alien without status of residence" refers to a foreign national who is not covered by Article 2-2, Paragraph 1 of the ICRRA (which stipulates that foreign nationals residing in Japan do so under a status of residence). This typically includes:

• Individuals who entered Japan without receiving landing permission (e.g., stowaways).
• Individuals who are overstaying their previously granted period of stay.
• Individuals whose status of residence has been revoked and are pending deportation.

However, the permission is not intended for, and generally not granted to, individuals who are already lawfully residing in Japan under another provision of the ICRRA when they apply for refugee status. This includes those who:

• Hold a valid status of residence (e.g., student, worker, spouse).
• Have been granted provisional landing permission (Article 13), special landing permission (e.g., port-of-call landing, landing permission for temporary refuge), or are permitted to stay pending acquisition of a status of residence (Article 22-2).
• Have been designated a period for departure after revocation of status of residence (Article 22-4, Paragraph 7).

These individuals already have a legal basis for their stay, so provisional stay permission under Article 61-2-4 is generally not applicable.

Conditions for Granting and Grounds for Non-Permission (Article 61-2-4, Paragraph 1)

While the system aims to grant provisional stay to eligible asylum seekers without a status of residence, it is not automatic. The Minister of Justice may choose not to grant permission if the applicant falls under any of the following categories (these are discretionary grounds for refusal):

1. The applicant has been granted provisional landing permission (Item 1): As noted above, this is more of an exclusion criterion, but it's also listed as a ground for non-permission.
2. The applicant falls under certain grounds for denial of landing (Item 2): Specifically, if they are inadmissible under Article 5, Paragraph 1, Items 4 through 14. These grounds include:
   • Item 4: Conviction for certain crimes (imprisonment of 1 year or more, excluding political offenses).
   • Item 5: Conviction for drug-related offenses.
   • Item 6: Engagement in prostitution-related business.
   • Item 7: Inciting or aiding illegal entry/landing of others.
   • Item 8: Risk of committing acts detrimental to Japan's interests or public safety.
   • Item 9: Previous deportation from Japan (with varying re-entry ban periods).
   • Item 9-2: Departure from Japan under a departure order (with a 1-year re-entry ban).
   • Items 10-14: Other specific grounds related to national security, incitement of violence, etc.
3. The applicant is highly likely to fall under certain serious grounds for deportation, and it is deemed inappropriate to grant provisional stay (Item 3): The specified deportation grounds are Article 24, Items 3 to 3-5 (e.g., document fraud for others, terrorism, promoting illegal employment, forgery of Residence Cards) or Item 4, sub-items (c) to (m) (e.g., human trafficking, serious criminal convictions, prostitution, acts detrimental to public order). Even if these grounds are not yet definitively established, a high probability and a finding of inappropriateness can lead to denial of provisional stay.
4. There are reasonable grounds to suspect that the applicant is likely to flee (Item 4): This is similar to the "likelihood of flight" assessment for detention under Article 39. Factors such as lack of fixed address, past absconding attempts, or insufficient ties to prevent flight would be considered.
5. There are other reasonable grounds for the Minister of Justice to find it inappropriate to permit the foreign national to stay provisionally in Japan (Item 5): This is a broad discretionary clause allowing denial based on other unlisted factors deemed relevant by the Minister.

Method of Permission, Period, and Conditions (Article 61-2-4, Paragraphs 2 & 3)

• Issuance of a Certificate of Provisional Stay: If permission is granted, the foreign national is issued a Certificate of Provisional Stay (仮滞在許可書 - kari taizai kyokasho). This document serves as proof of their temporary legal status.
• Period of Provisional Stay: The Minister of Justice determines the period of provisional stay, which shall not exceed six months. In practice, it is often granted for shorter periods (e.g., three months) and can be renewed if the refugee status determination process is ongoing and the conditions for permission continue to be met.
• Conditions Attached to Stay: The Minister may impose conditions on the provisional stay, including:
  • Restrictions on Residence and Scope of Movement: The individual may be required to live at a specific address or within a certain area.
  • Restrictions on Activities (including prohibition of remunerative activities): Crucially, individuals granted permission for provisional stay are generally prohibited from engaging in work or other remunerative activities. This is a significant condition that often leads to financial hardship for asylum seekers, who may have to rely on limited public assistance or support from NGOs.
  • Obligation to Appear When Summoned: They must appear at an immigration office when requested.
  • Other necessary conditions.

Revocation of Permission for Provisional Stay (Article 61-2-4, Paragraph 4)

The Permission for Provisional Stay can be revoked by the Minister of Justice under several circumstances:

1. If it becomes clear that the foreign national falls under any of the grounds for non-permission listed in Paragraph 1, Items 2 through 5 (i.e., grounds for denial of landing, likelihood of serious deportation grounds, flight risk, or other reasons making provisional stay inappropriate).
2. If the foreign national has violated any of the conditions attached to their provisional stay without a justifiable reason.
3. If it is found that the foreign national obtained the permission by deceit or other fraudulent means.
4. If the foreign national withdraws their application for refugee status.
5. If a decision is made to either grant refugee status or to deny refugee status (and, if an objection is filed, a final decision is made on that objection). Once the RSD process concludes, the basis for provisional stay ceases, and the person's status will be determined by the outcome of their refugee claim (e.g., grant of "Long-Term Resident" status if recognized as a refugee, or potential resumption of deportation proceedings if not recognized and no other grounds for stay exist).

If the permission is revoked, and the individual has no other legal basis for remaining in Japan, they may become subject to detention and deportation. There are no specific penal provisions directly attached to the revocation itself, but remaining in Japan unlawfully after revocation would trigger standard penalties for illegal stay.

Living Conditions and Support During Provisional Stay

While provisional stay regularizes an asylum seeker's presence, their living conditions can be challenging. The general prohibition on work means many struggle financially. Access to public welfare, such as national health insurance or livelihood assistance, can be limited or difficult to obtain for those on provisional stay, although some emergency medical care or minimal support may be available through municipalities or NGOs depending on the specific circumstances and local policies. This aspect of the system has drawn criticism for potentially leaving asylum seekers in a vulnerable state for extended periods while their claims are processed.

Relationship with Suspension of Deportation Proceedings (Article 61-2-6)

As mentioned, Article 61-2-6 generally requires the suspension of deportation proceedings for a foreign national who has applied for refugee status (with exceptions, e.g., if they are clearly not a refugee or if they pose a security risk). Permission for Provisional Stay under Article 61-2-4 provides the legal ground for the applicant to remain in Japan during this period of suspension if they do not otherwise have a status of residence. If an asylum seeker does have a valid status of residence when they apply, that status generally continues, and they would not typically be granted provisional stay permission unless their original status expires and is not renewed during the RSD process.

Conclusion

The Permission for Provisional Stay is an important, albeit conditional, mechanism within Japan's refugee status determination system. It aims to provide a temporary legal footing for asylum seekers who lack a formal status of residence while their claims are under review, thereby facilitating their participation in the RSD process and avoiding unnecessary detention for eligible individuals. However, the permission is subject to strict eligibility criteria, numerous grounds for non-permission and revocation, and often comes with significant restrictions, most notably a general prohibition on work. While it addresses the immediate legal uncertainty faced by some asylum seekers, the conditions attached and the duration of the RSD process can still present considerable challenges for those awaiting a final decision on their claim for protection.