The Constitution of Japan, enacted in 1947, guarantees a range of fundamental human rights. A key question that arises is the extent to which these constitutional protections apply to foreign nationals, particularly in the context of immigration control, which involves matters of entry, residence, and deportation. While Japanese law generally extends constitutional human rights to foreign nationals, landmark judicial decisions have established that these rights are primarily enjoyed within the framework of Japan's immigration control system. This article explores this nuanced relationship, examining key constitutional principles and how they have been interpreted by Japanese courts in immigration-related cases.

The General Principle: Human Rights Protection for Foreign Nationals

Chapter III of the Japanese Constitution (Articles 10 to 40) enumerates fundamental human rights, including equality under the law, freedoms of thought, conscience, religion, assembly, association, speech, and academic freedom, as well as rights to due process, access to courts, and basic social rights.

It is widely accepted in Japanese legal doctrine and affirmed by court precedents that these fundamental human rights are, in principle, guaranteed to foreign nationals residing in Japan, except for those rights that, by their very nature, are applicable only to Japanese citizens. Examples of rights typically limited to citizens include the right to vote in national elections, the right to hold public office, and certain social security benefits directly tied to nationality. For most other fundamental freedoms and procedural rights, foreign nationals are considered to possess them.

The McLean Doctrine: Rights "Within the Framework of the Immigration Control System"

Despite the general applicability of constitutional rights, their scope and exercise by foreign nationals in immigration matters are significantly conditioned by a landmark decision of the Supreme Court of Japan, Grand Bench, on October 4, 1978 (Showa 50 (Gyo-Tsu) No. 120), commonly known as the McLean case. This case involved a U.S. citizen whose application for an extension of his period of stay was denied, partly due to his political activities in Japan.

The Supreme Court held that:

1. The Constitution's guarantee of fundamental human rights to foreign nationals is provided within the framework of the immigration control system (外国人在留制度の枠内で与えられているにすぎない - gaikokujin zairyū seido no waku nai de ataerarete iru ni suginai).
2. Foreign nationals are not constitutionally guaranteed the right to enter Japan, the right to reside, or the right to demand continued residence. Their permission to reside in Japan is granted at the discretion of the state, based on the Immigration Control Act.
3. Consequently, even activities that fall under constitutionally protected freedoms (such as political expression) undertaken by a foreign national can be considered as negative factors by immigration authorities when making discretionary decisions, such as granting an extension of stay. The guarantee of a right does not extend to an assurance that exercising it will have no adverse immigration consequences.

This doctrine establishes that the state's sovereign power to control the entry and residence of foreign nationals is a primary consideration, and constitutional rights for foreigners are enjoyed subject to this power.

Specific Constitutional Rights in Immigration Contexts

Several constitutional articles have been invoked in immigration-related litigation, with courts often balancing the asserted right against the state's broad discretion in immigration matters.

1. Equality Under the Law (Article 14)

Article 14, Paragraph 1 of the Constitution states: "All of the people are equal under the law and there shall be no discrimination in political, economic or social relations because of race, creed, sex, social status or family origin."

While this applies to foreign nationals, distinctions based on nationality or status of residence in immigration matters are generally considered permissible if they are deemed reasonable and serve legitimate immigration control purposes.

• The Tokyo District Court, on September 29, 2009 (Heisei 20 (Gyo-U) Nos. 586, 674), found that differing treatment in applications for a "Long-Term Resident" status by a widowed foreign spouse, based on whether there were Japanese children from the marriage to the deceased Japanese spouse, did not violate Article 14. The court viewed the presence of Japanese children as just one of many factors in a comprehensive discretionary assessment.
• Similarly, the Tokyo District Court, on May 28, 2009 (Heisei 19 (Gyo-U) No. 549), held that adding a "good conduct" requirement to a Ministry of Justice public notice defining eligibility for "Long-Term Resident" status for persons of Japanese descent did not violate Article 14 or international conventions against racial discrimination.
• However, the Tokyo High Court, on July 17, 2007 (Heisei 19 (Gyo-Ko) No. 25), overturned a denial of permanent residence where it found that the authorities had made factual errors and had treated the applicant unequally compared to her sisters in similar circumstances, suggesting that arbitrary or factually incorrect distinctions even among foreign nationals can be challenged.

2. Due Process and Protections Against Arbitrary Detention (Articles 31 & 34)

• Article 31 (Due Process): "No person shall be deprived of life or liberty, nor shall any other criminal penalty be imposed, except according to procedure established by law." This article is understood to require procedural fairness in administrative actions that significantly impact individual rights, including immigration detention and deportation. The various stages of hearings and notifications in deportation procedures aim to satisfy this.
• Article 34 (Protection Against Unlawful Arrest/Detention): This article provides protections such as the right to be informed of charges, the right to counsel, and the requirement of a warrant for arrest, primarily in the context of criminal procedure. Japanese courts have generally held that the strict protections of Article 34 do not fully apply to administrative detention under the Immigration Control Act because it is not considered a criminal penalty but rather a measure to ensure the execution of deportation.
  • The Tokyo High Court, on April 15, 1972 (Showa 46 (U) No. 3326), ruled that detention under the then-Immigration Control Order was an administrative disposition, and the deprivation of liberty itself was not an immediate violation of Article 31.
  • The Tokyo High Court, on November 26, 1975 (Showa 49 (Ko) No. 1778), stated that the right to counsel as envisaged in Article 34 was primarily for criminal proceedings and not directly applicable to administrative detention for deportation.
  • The Supreme Court (First Petty Bench decision) on January 25, 1971 (Showa 45 (Ku) No. 441), held that confining a foreign national to an airport hotel area before landing permission is granted does not constitute "detention" (kōkin) in the constitutional sense of Article 34, as there is no inherent right for a foreign national to enter Japan without permission.

Despite these interpretations, administrative detention must still be carried out lawfully according to the procedures in the Immigration Control Act, and excessively prolonged or arbitrary detention can be challenged.

3. Right of Access to Courts (Article 32)

Article 32 states: "No person shall be denied the right of access to the courts." Foreign nationals generally have this right and can file lawsuits challenging immigration decisions (e.g., denial of visa, deportation order).
However, this right is contingent upon having a "legal interest to sue" (訴えの利益 - uttae no rieki). The Tokyo District Court, on July 24, 2009 (Heisei 21 (Gyo-U) No. 123), noted that if a foreign national departs Japan while their immigration-related lawsuit is pending, they may lose their legal interest in the outcome of the case (as the original administrative disposition may no longer directly affect them in the same way). In such instances, the case might be dismissed without a judgment on the merits, and this would not be considered a violation of Article 32.

4. Right to Education (Article 26)

Article 26 guarantees the right to receive an education. Foreign children lawfully residing in Japan can attend Japanese public schools. However, as seen in the Osaka District Court decision on September 26, 2008 (Heisei 18 (Wa) No. 1883), the obligation placed on parents by Paragraph 2 of Article 26 to ensure their children receive compulsory education is primarily interpreted as applying to parents of Japanese nationals. While this doesn't deny foreign children the right to access education, it means that the right to education for a foreign child does not automatically translate into an undeniable right for the child or their family to remain in Japan if they otherwise become deportable.

5. Freedom of Residence and Movement (Article 22)

Article 22, Paragraph 1 guarantees freedom of residence and movement "to the extent that it does not interfere with the public welfare." This freedom is generally understood to apply to individuals lawfully residing in Japan. It does not confer upon foreign nationals a right to enter Japan, choose their initial place of residence without regard to their visa status, or to remain in Japan if the conditions of their authorized stay are violated or their period of stay expires.

The Role of International Human Rights Treaties

Japan is a party to major international human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child (CRC). These treaties form part of Japan's domestic law. Foreign nationals can and do invoke these treaties in immigration litigation.

However, Japanese courts have often interpreted these treaty obligations in a manner consistent with the McLean doctrine—that is, as generally not overriding the state's broad discretion in immigration control unless there is a very direct and specific prohibition (such as the principle of non-refoulement under the Refugee Convention and ICCPR Article 7).

• The Fukuoka High Court, on March 7, 2005 (Heisei 15 (Gyo-Ko) No. 13), observed that the ICCPR (specifically Article 13, which allows for the expulsion of lawfully resident aliens in accordance with law, implying the deportability of unlawfully resident ones) and the CRC (specifically Article 9, Paragraph 4, which acknowledges family separation resulting from measures like deportation) are predicated on the state's sovereign right to control the entry and residence of aliens. They are not considered "special treaties" that would fundamentally restrict this customary international law principle.
• The Tokyo District Court, on June 3, 2016 (Heisei 27 (Gyo-U) No. 422), in a case where an applicant argued that a denial of Special Permission to Stay violated ICCPR Article 17 (protection from arbitrary interference with family) and Article 23 (protection of the family), reiterated that such treaty provisions are factors to be considered within the discretionary framework of Japan's immigration system, rather than creating an independent right to residence.

The Proportionality Principle (比例原則 - Hirei Gensoku)

The principle of proportionality—that an administrative measure should not be excessively harsh or burdensome in relation to the public interest it seeks to achieve—is sometimes argued in immigration cases, particularly in challenging deportation orders. While not explicitly enshrined in the Constitution as a general limitation for all administrative acts, it is a recognized principle in administrative law. However, in immigration matters, courts tend to grant significant deference to the judgment of immigration authorities regarding what is proportionate, intervening only if a decision is found to be manifestly unreasonable or a clear abuse of discretion.

Conclusion

The Constitution of Japan extends its guarantees of fundamental human rights to foreign nationals. However, particularly in matters concerning entry, residence, and deportation, these rights are significantly conditioned by the state's sovereign authority to control its borders and manage immigration, a principle firmly established by the Supreme Court in the McLean case. While foreign nationals are entitled to procedural fairness, protection against arbitrary administrative actions, and access to courts, the ultimate right to be in Japan remains a matter of legislative and administrative discretion under the Immigration Control Act. International human rights treaties, while part of domestic law, are generally interpreted in a way that respects this broad state discretion, acting more as guiding principles for consideration rather than absolute entitlements to entry or continued residence. Understanding this balance is key to comprehending the legal landscape for foreign nationals in Japan.