Deportation, or "forced departure" (退去強制 - taikyo kyōsei), is one of the most significant administrative actions under Japanese immigration law, leading to a foreign national's compulsory removal from Japan. This process is governed by a detailed set of procedures outlined primarily in Chapter V of Japan's Immigration Control and Refugee Recognition Act (hereinafter "Immigration Control Act"). Understanding these steps, from the initial investigation of an alleged immigration violation to the final act of repatriation, as well as the rights afforded to foreign nationals during this process, is crucial.

Initiation of Deportation Procedures: Investigation and Detention

Deportation proceedings typically commence when Japanese immigration authorities suspect that a foreign national falls under one of the grounds for deportation stipulated in Article 24 of the Immigration Control Act (e.g., overstaying, illegal entry, engaging in unauthorized activities, criminal convictions).

1. Investigation of Violations (違反調査 - Ihan Chōsa)

The process usually begins with an investigation by an Immigration Control Guard (入国警備官 - nyūkoku keibikan). This can be triggered by various means, such as apprehension during a raid, information received from third parties, or discrepancies found during other immigration procedures.

• Questioning and Evidence Gathering: Immigration Control Guards are empowered to question suspects, request the presentation of documents, and conduct searches of premises (often with a warrant, though exceptions exist). The legality of investigative methods, such as the use of restraints (戒具 - kaigu) during questioning, has been subject to judicial scrutiny. For instance, the Tokyo District Court on September 10, 2012 (Heisei 22 (Gyo-U) No. 660), found that the use of restraints on an individual during questioning in a vehicle and subsequently at an immigration office, where the individual later signed a statement, did not render the procedure improper under the circumstances. Late-night or early-morning investigations, particularly following raids on establishments suspected of employing unauthorized workers, have also been reviewed by courts, with the Tokyo District Court on July 24, 2007 (Heisei 18 (Gyo-U) No. 281), finding such procedures not socially unacceptable if no undue suppression of will or excessive force was used.
• The legality of entry and search operations is paramount. The Tokyo District Court, in a decision on February 25, 2010 (Heisei 22 (Mu) No. 374), deemed an unannounced entry into a building by police and immigration officials using a key obtained from the landlord illegal because a warrant could and should have been obtained. A subsequent arrest based on this illegal entry was also found to be unlawful.

2. Detention (収容 - Shūyō)

If, as a result of the investigation, the Immigration Control Guard has sufficient reason to suspect that the foreign national is deportable and that there is a risk of flight, an Immigration Control Officer (入国審査官 - nyūkoku shinsakan) may issue a Detention Order (収容令書 - shūyō reisho) to detain the individual (Article 39).

• Grounds for Detention: The primary grounds are suspected deportability and risk of escape. The detention is intended to ensure the foreign national's presence throughout the deportation proceedings and for eventual repatriation if ordered.
• Maximum Period of Detention: Initially, detention can be for up to 30 days, extendable once for another 30 days by the Minister of Justice if deemed unavoidable (Article 41). In practice, detention can become prolonged if repatriation is difficult or if legal challenges are ongoing.
• Conditions of Detention: While not a criminal punishment, detention involves a significant deprivation of liberty. The treatment of detainees, including access to medical care and exercise, has been a subject of legal challenges (e.g., Tokyo District Court, December 20, 2002 (Heisei 10 (Wa) No. 3147), which found a prolonged denial of outdoor exercise to be illegal).
• Provisional Release (仮放免 - Karihōmen): A detained foreign national, or their representative, can apply for Provisional Release under Article 54. This is a discretionary measure granted by an immigration official (Director of an Immigration Detention Center or Supervising Immigration Inspector) based on factors such as the detainee's circumstances, evidence submitted, character, assets, and the payment of a deposit (not exceeding three million yen). Conditions, such as reporting requirements and restrictions on movement or employment, are usually attached.

It's important to note that the constitutional rights afforded in criminal proceedings, such as the right to counsel during police interrogation (Article 34 of the Constitution), have been interpreted by courts, like the Tokyo High Court on November 26, 1975 (Showa 49 (Ko) No. 1778), as not directly or fully applicable to administrative detention for deportation purposes, as it's not considered a criminal procedure.

The Adjudicative Process: From Examination to Ministerial Decision

Once a suspect is detained or otherwise brought into the formal deportation process, a series of adjudicative steps follow:

1. Examination by an Immigration Control Officer (審査 - Shinsa)

The Immigration Control Officer (入国審査官 - nyūkoku shinsakan) examines the case based on the investigation by the Immigration Control Guard (Article 45).

• If the officer finds that the foreign national is not deportable, they must be released immediately.
• If the officer finds that the foreign national is deportable (but not subject to a simpler Departure Order under Article 24-3), they must promptly notify the foreign national of this finding (認定 - nintei) and the facts constituting the grounds for deportation. Crucially, the foreign national must also be informed of their right to request an oral hearing to contest this finding (Article 47). The Tokyo District Court on December 11, 2014 (Heisei 25 (Gyo-U) No. 780), clarified that this notification doesn't necessarily require a face-to-face interview if an oral hearing process is available.

2. Oral Hearing by a Special Inquiry Officer (口頭審理 - Kōtō Shinri)

If the foreign national requests an oral hearing within three days of receiving the notification from the Immigration Control Officer, the case is referred to a Special Inquiry Officer (特別審理官 - tokubetsu shinrikan) (Article 48). This is a key quasi-judicial stage.

• Rights at the Hearing: The foreign national (the "suspect") has the right to:
  • State their case and present evidence.
  • Call witnesses (with the Special Inquiry Officer's approval).
  • Inspect evidence submitted by the Immigration Control Officer.
  • Be assisted by counsel (attorney) or another trusted person (at their own expense).
  • Have an interpreter if they do not understand Japanese. The necessity and adequacy of interpretation have been subjects of litigation. For example, the Osaka District Court on December 3, 2010 (Heisei 19 (Gyo-U) No. 203), found that using a flowchart and simple Japanese could be sufficient if the individual understands basic Japanese and doesn't contest the facts, while the Osaka High Court on October 28, 2011 (Heisei 23 (Gyo-Ko) No. 7), noted that while legal terms are difficult, if basic communication is possible and an interpreter isn't requested, the absence of one isn't necessarily a procedural violation.
• The Special Inquiry Officer conducts the hearing, examines evidence, and then makes a finding (判定 - hantei) as to whether the Immigration Control Officer's initial finding of deportability was correct or incorrect. The suspect is notified of this finding.

3. Waiver of Oral Hearing (口頭審理の放棄 - Kōtō Shinri Hōki)

A foreign national may choose to waive their right to an oral hearing. This means they accept the Immigration Control Officer's initial finding of deportability. The validity of such waivers, particularly if there are claims of misunderstanding or coercion, has been examined by courts.

4. Objection to the Minister of Justice (異議の申出 - Igi no Mōshide)

If the Special Inquiry Officer finds that the initial determination of deportability was correct, the foreign national can, within three days of notification, file an objection with the Minister of Justice (Article 49).

• The Minister reviews the case file, including the records of the investigation, examination, and oral hearing.
• The Minister then makes a decision on whether the objection is well-grounded or not.

5. Minister's Decision and Special Permission to Stay (在留特別許可 - Zairyū Tokubetsu Kyoka)

If the Minister of Justice determines that the objection is without reason, the deportation order will typically be upheld. However, even at this stage, Article 50 of the Immigration Control Act grants the Minister the discretion to grant Special Permission to Stay if they find that particular circumstances exist (e.g., the person is a permanent resident, was formerly a Japanese national, is a victim of human trafficking, or "there are other special circumstances based on which the person should be granted special permission to stay").

• The scope of information that immigration officials must provide about Special Permission to Stay during earlier stages is limited. The Tokyo District Court on December 13, 2013 (Heisei 24 (Gyo-U) No. 71), held there's no legal duty to inform about this special permission when notifying about the right to an oral hearing. However, the Osaka District Court on December 3, 2010, suggested that if a deportee expresses a strong desire to remain in Japan, a duty to explain subsequent procedures, potentially including this, may arise.

Issuance and Execution of the Deportation Order (退去強制令書 - Taikyo Kyōsei Reisho)

If no oral hearing is requested, if the Special Inquiry Officer's finding of deportability is not objected to, or if the Minister of Justice dismisses the objection and does not grant Special Permission to Stay, a Supervising Immigration Inspector (主任審査官 - shunin shinsakan) issues a written Deportation Order (Article 51).

• Content of the Order: The order must state the full name, age, nationality, place of residence of the deportee, the grounds for deportation, the destination for repatriation, and the date of issuance. The designation of the destination country has been a point of contention, with courts like the Nagoya High Court on June 21, 2006 (Heisei 16 (Gyo-Ko) No. 32), emphasizing that the Supervising Immigration Inspector must make a substantive judgment, including on potential refugee claims, when designating the destination.
• Execution of the Order: The Deportation Order is executed by an Immigration Control Guard (Article 52). This involves repatriating the foreign national to the country designated in the order. Issues surrounding the execution have included claims of excessive force during repatriation (as in the Tokyo District Court case of March 19, 2014 (Heisei 23 (Wa) No. 25874), though this was reversed on appeal) and same-day deportations that limit access to legal recourse (e.g., Tokyo District Court, September 3, 2007 (Heisei 18 (Wa) No. 3979)).

Key Rights of Foreign Nationals Throughout the Process

While the deportation process is administrative rather than criminal, foreign nationals do have certain procedural rights:

1. Right to Notification: To be informed of the grounds for suspected deportation, the findings of the Immigration Control Officer and Special Inquiry Officer, and the rights to request hearings and file objections at relevant stages.
2. Right to an Interpreter: If they cannot understand Japanese, an interpreter should be provided during official proceedings like the oral hearing. However, courts have sometimes found this unnecessary if the individual demonstrates a certain level of Japanese proficiency and doesn't request one.
3. Right to Assistance/Counsel: The right to be assisted by legal counsel or another trusted person (at one's own expense) is explicitly recognized for the oral hearing (Article 48, Paragraph 4) and implicitly for the objection to the Minister. Access to counsel during the initial detention and investigation phase by Immigration Control Guards is more restricted.
4. Right to Present Evidence and Make Statements: This is a core component of the oral hearing and the objection process.
5. Right to Apply for Provisional Release: If detained, the individual can apply for provisional release, though it is a discretionary measure.
6. Right to Judicial Review (Limited): While the merits of the Minister's discretionary decisions (like granting Special Permission to Stay) are hard to challenge, the legality of the deportation order itself, or specific procedural flaws, or the lawfulness of detention can be contested in Japanese courts through administrative litigation. An individual can also seek a stay of execution of the deportation order pending judicial review.

Conclusion

The deportation procedure in Japan is a multi-layered administrative process designed to address violations of immigration law. It begins with an investigation and potential detention, proceeds through an examination by an Immigration Control Officer, offers an opportunity for an oral hearing before a Special Inquiry Officer, and allows for an objection to the Minister of Justice, who also holds the discretionary power to grant Special Permission to Stay. While immigration authorities are vested with significant powers, the process incorporates avenues for review and the assertion of certain rights by the foreign national. However, these rights have their limitations, particularly concerning access to counsel in the initial stages and the broad discretion afforded to the Minister in final decisions. For foreign nationals facing these proceedings, understanding each step and seeking qualified legal counsel at the earliest possible opportunity is paramount.