Detention is one of the most significant measures that can be taken against a foreign national under Japan's Immigration Control and Refugee Recognition Act (ICRRA). It involves depriving an individual of their liberty and is typically employed as part of the deportation process. Understanding the circumstances under which detention can be initiated, the legal instruments required, and the rules governing the period and place of detention is crucial for comprehending the scope of authority vested in Japanese immigration officials. This article examines Articles 39, 40, and 41 of the ICRRA, which lay the groundwork for detention in the context of violation investigations and deportation proceedings.

The Principle of Detention (Article 39, Paragraph 1)

The primary legal basis for detaining a foreign national suspected of being deportable is found in Article 39, Paragraph 1 of the ICRRA. This provision states:
"An Immigration Control Officer may, when a suspect falls under any of the grounds for deportation set forth in Article 24 and there are reasonable grounds to suspect that the suspect is likely to flee, detain said suspect pursuant to a written detention order (hereinafter referred to as "Detention Order") issued by a Supervising Immigration Inspector."

This sets out two key conjunctive requirements for detention based on a Detention Order:

1. Reasonable Grounds to Suspect Deportability: The Immigration Control Officer must have reasonable grounds to suspect that the foreign national (the "suspect") falls under one or more of the grounds for deportation listed in Article 24 of the ICRRA. These grounds are extensive and cover various violations, from illegal entry and overstaying to criminal convictions and engaging in unauthorized activities.
2. Reasonable Grounds to Suspect Likelihood of Flight (逃亡すると疑うに足りる相当な理由 - tōbō suru to utagau ni tariru sōtō na riyū): In addition to suspected deportability, there must also be reasonable grounds to believe that the suspect is likely to abscond or flee if not detained. This assessment considers factors such as the suspect's ties to Japan (or lack thereof), their past conduct, whether they have a fixed address, their cooperation with authorities, and the nature of the suspected immigration violation.

It is important to note that this provision does not establish a system of "automatic" or "all-cases" detention for everyone suspected of being deportable. The requirement for "likelihood of flight" implies a degree of individualized assessment. The purpose of detention at this stage is primarily to ensure the smooth and certain execution of deportation procedures if the individual is indeed found deportable and to prevent them from absconding.

An exception to this detention principle exists for individuals who are deemed eligible for a "Departure Order" under Article 24-3 (a system for certain overstayers who voluntarily report to immigration authorities and wish to depart promptly). Such individuals are generally not detained (Article 55-2, Paragraph 1).

The Detention Order (Article 40)

Detention under Article 39 must be authorized by a Detention Order (収容令書 - shūyō reisho) issued by a Supervising Immigration Inspector (主任審査官 - shunin shinsakan). A Supervising Immigration Inspector is a senior immigration official with specific delegated authority.

Article 40 details the required contents of a Detention Order:

1. Name, nationality, place of residence, and age of the suspect.
2. A summary of the suspected offense (i.e., the grounds for deportation under Article 24 that the suspect is believed to fall under).
3. Place where the suspect is to be detained (収容場所 - shūyō basho).
4. Valid period of the Detention Order.
5. Date of issuance.
6. Official title and name of the issuing Supervising Immigration Inspector, along with their official seal.

The Detention Order serves as the legal warrant for the initial detention. Its valid period is seven days from the date of issuance (Article 40, Paragraph 2). This means the detention must commence within this seven-day window.

Period and Place of Detention; Entrustment of Custody (Article 41)

Once a foreign national is detained under a Detention Order, Article 41 governs the duration and location of that detention.

1. Period of Detention (Article 41, Paragraph 1)

"The period of detention pursuant to a Detention Order shall be 30 days or less. However, a Supervising Immigration Inspector may, when he/she finds that there are unavoidable circumstances, extend said period for a period not exceeding 30 days only once."

This establishes a clear timeline for detention based on the initial Detention Order:

• Initial Period: Up to 30 days.
• Possible Extension: One extension of up to 30 days is permissible if "unavoidable circumstances" (やむを得ない事由 - yamu o enai jiyū) exist. Such circumstances might include the complexity of the investigation, difficulty in arranging deportation, or pending appeals.
• Maximum Total Period under Detention Order: Therefore, detention based solely on a Detention Order (and its extension) issued under Article 39 cannot exceed 60 days.

It is crucial to distinguish this initial 60-day maximum detention period from detention that may occur after a formal Deportation Order (退去強制令書 - taikyō kyōsei reisho) has been issued under Article 51 (following the full examination and hearing process). If a foreign national cannot be promptly deported after a Deportation Order is issued, they may be detained until deportation becomes possible (Article 52, Paragraph 5). This "detention for deportation" does not have a statutory maximum limit in the same way as the initial 60-day period under a Detention Order, a point which has led to significant legal debate and concerns about prolonged detention in Japan. The detention under Article 41 is for the purpose of investigation and examination leading up to a deportation decision, while detention under Article 52, Paragraph 5 is for the purpose of executing an already issued Deportation Order.

2. Place of Detention (Article 41, Paragraph 2)

"The place where a suspect is to be detained pursuant to a Detention Order shall be an Immigration Detention Center (入国者収容所 - nyūkoku-sha shūyōjo), an Immigration Detention Facility (入国者収容施設 - nyūkoku-sha shūyō shisetsu), or any other place designated by the Minister of Justice or by a Supervising Immigration Inspector commissioned by the Minister of Justice."

• Immigration Detention Centers: These are dedicated facilities specifically designed for holding individuals subject to immigration procedures. Examples include the East Japan Immigration Center, West Japan Immigration Center, and Omura Immigration Center.
• Other Designated Places: This provision allows for flexibility. In practice, it might include holding cells at regional immigration bureaus or, in some circumstances, police detention facilities if specifically designated, though the primary locations are the immigration-specific centers.

3. Entrustment of Custody (Article 41, Paragraph 2, latter part)

"A Supervising Immigration Inspector may, when he/she finds it necessary, entrust the custody of a suspect to a police official if said suspect is detained in a place other than an Immigration Detention Center or Immigration Detention Facility."

This allows for practical arrangements where immigration detention facilities are not immediately available or appropriate, by temporarily entrusting the physical custody to police authorities, although the legal basis for detention remains the immigration-issued Detention Order.

4. Escort (Article 41, Paragraph 3)

"An Immigration Control Officer may, when he/she finds it necessary for detention, escort a suspect to the designated place of detention."

This provides the legal authority for Immigration Control Officers to physically transport the suspect to the detention facility once a Detention Order has been issued and executed.

Safeguards and Further Procedures

While the ICRRA grants the power to detain, it also provides (or implies) certain safeguards and subsequent procedures:

• Judicial Review (Limited): While the issuance of a Detention Order itself is an administrative act, its lawfulness can be challenged in court through administrative litigation. Furthermore, individuals detained can potentially seek release through a writ of habeas corpus (人身保護請求 - jinshin hogo seikyū) if they believe their detention is unlawful, although the scope of review in such cases can be limited when there is a formal detention order.
• Provisional Release (仮放免 - karihōmen): Article 54 of the ICRRA allows a detained foreign national (or their representative) to apply for "provisional release" from detention under certain conditions, often involving the payment of a bond and restrictions on residence and activities. This is a key mechanism for seeking release from prolonged detention.
• Subsequent Examination and Hearing: Detention under Article 39 is usually followed by an examination by an Immigration Inspector (Article 45), and if an adverse finding is made, an oral hearing before a Special Inquiry Officer (Article 48), during which the detainee can present their case.
• Treatment of Detainees: Article 61-7 outlines general principles for the treatment of detainees, stating they should be afforded as much liberty as is consistent with the security of the facility and that necessary provisions for accommodation, meals, medical care, etc., should be made.

Conclusion

Detention under Japan's Immigration Control Act is a significant power exercised by immigration authorities to ensure the presence of foreign nationals suspected of being deportable and considered a flight risk during violation investigations and deportation proceedings. It is initiated by a Detention Order issued by a Supervising Immigration Inspector, based on reasonable grounds of both deportability and likelihood of flight. The initial detention period under such an order is capped at 30 days, extendable once for another 30 days, for a maximum of 60 days. Detention typically takes place in specialized Immigration Detention Centers. While this power is essential for effective immigration control, its exercise involves the deprivation of liberty and is therefore subject to specific legal requirements and, to some extent, avenues for review and release such as the provisional release system. Understanding these rules is fundamental for assessing the rights and obligations of foreign nationals who come into contact with Japan's deportation system.