Dual nationality and Zainichi Koreans

Via the Marmot’s Hole, it appears that South Korea is currently drafting a law that would finally allow for dual citizenship of adults. The dual citizenship law in Korea is currently more or less the same as Japan, i.e. that it is only permitted for minors who are theoretically forced to choose upon reaching the age of majority. In Japan that age is 20 and in Korea is 22, but the principal is the same.

Those who obtain foreign citizenship by birth will be allowed to maintain it if they submit a written oath by the age of 22 not to exercise the rights and privileges of foreigners in Korea by using their second passport.

After the age of 22, men will be allowed to maintain multiple citizenship only if they complete their military service here. Under the current law, dual citizenship holders must choose one nationality by the age of 22 and submit a written pledge to give up their foreign citizenship if they choose their Korean nationality. The revision is aimed at blocking a drain on military manpower.

Those caught using their foreign passports to enter international schools or invest in Korea as foreigners will be ordered to choose a single nationality and automatically lose their Korean nationality if they fail to give up their foreign citizenship within a specified period.

The regulations also apply for other groups such as foreigners who have immigrated through marriage with Koreans; highly skilled foreigners; senior citizens living overseas; those who have regained Korean citizenship after being adopted by foreign families; and Chinese nationals who were born and have lived here for more than 20 years.

Under the current law, foreigners have to give up their foreign citizenship within six months after they obtain Korean nationality.

There are a couple of complications that I’m curious about, however. First, I assume that military service has a maximum age as well, and if so, are older men allowed to acquire dual-citizenship without doing it? The second case is more complicated though-the so-called Zainichi Koreans. Republic of Korea citizens who are permanent residents of Japan, particularly those who came during the pre-WW2 colonial period and their descendants. Will they also allowed to become dual nationals? And if so, what about military service?

Well, as it currently stands Zainichi Koreans, as well as Korean permanent residents in other countries, are exempt from the draft. However, should they “return” to Korea with the intention of becoming a permanent resident there, they lose this exemption.

大韓民国 兵役法
第2項 ・・・・・・・・・・・国外で家族と共に永住権を得た者(条件付き永住権を得た者を除く。以下同じ)又は永住権制度がない国で無期限滞留資格を得た者の場合には、兵役免除の処分をすることができる。
第4項 ・・・・・・・・・・・兵役の免除を受けた者が国内で永住する目的で帰国するなど大統領令が定める事由に該当するときは、その処分を取り消して兵役義務を賦課することができる。

But will overseas Koreans, such as the Zainichi, even be allowed to acquire dual citizenship? There would probably be no significant issues in a country like the United States, which tolerated dual citizenship-even with countries that require military service, as long as they are a military ally like Israel. But what about Japan? I really can’t say. Although later-arriving Korean immigrants are also technically lumped in with Zainichi, the term is mainly concerned with those who, as I mentioned above, came over as colonial subjects, and their descendants, who were granted an unusual “Special Permanent Residents” status as a diplomatic compromise between Japan and Korea. (Note that the population of Zainichi who “came over during the colonial period and their descendants” is actually larger than the number of Special Permanent Residents, as some thousands returned or moved to Korea when it became independent, but later decided return to Japan, where they had spent most or all of their lives. Those who left Japan and returned were legally counted as new immigrants, and did not qualify for Special Permanent Residency.)

Many have wondered why neither country has ever allowed dual citizenship in the past, particularly for this minority. In fact, when Japan and South Korea were originally discussing the legal status of the Zainichi Koreans, the idea of allowing dual citizenship was floated, but was allegedly vetoed by the US government. As domestic politics in both countries, as well as their relations, have changed a lot over the decades, (and the US probably doesn’t care, or have the power to set policy anymore) a similar conclusion would not necessarily be foregone today, but I still can’t see Japan tolerating South Korea to unilaterally change their citizenship policy in a way that potentially hundreds of thousands of Japan residents. Zainichi Koreans (a group which actually consists of both South Korean citizens and quasi-stateless/quasi-North Korean citizens) have no problem naturalizing as Japanese citizens (they used to), but (at least anecdotally) are also forced to give up their Korean citizenship more strictly than westerners. I can’t see this changing until Japan also changes their own law to allow for adult dual citizenship, and I have yet to see any sign that they plan to do so.

What’s right and wrong with divorce in Japan

Note: I started drafting this post about a week ago. Many of these points have since been raised in our educated readers’ comments to Curzon’s earlier post on the Savoie case. I’m going to re-raise them anyway, since I believe the broader discussion of international divorce should continue.

My first trip to court was as a student in an undergraduate law class. I was assigned to sit in a session of the local courthouse and take notes on what happened. This was also where I saw a divorce for the first time. A middle-aged, heavyset black couple with soft Southern drawls came in. The entirety of the divorce went like this:

JUDGE: I understand you two want to get divorced.
WIFE: That’s right, Your Honor.
JUDGE: What is the reason for this?
WIFE: He cheated on me, and lied to me. And we don’t wanna be married no more.
JUDGE: Is this true, sir?
HUSBAND: Yes, it is.
JUDGE: Do you have any children?
WIFE: No, sir.
JUDGE: Property?
HUSBAND: It’s taken care of.
JUDGE: Fine. I declare you lawfully divorced. Take this form to the clerk.
WIFE: Thank you.

I left the courthouse shortly after that, and saw them getting into the same car together to drive home. It was a surprisingly cute divorce.

Since becoming a lawyer and moving to Tokyo, I have gotten an inside seat in some much nastier divorces. Although the law firm I used to work at was primarily dealing with corporate clients, we would regularly get a personal inquiry from, say, a client’s secretary, telling us her brother’s children were stolen by his crazy Japanese wife, and we would invariably try to respond with something productive even though there was nothing particularly productive to do at that point. The problems in resolving cross-border family disputes involving Japan are legion, and have inspired a voluminous website written by an anonymous estranged gaijin dad.

First, some facts

The statistics in this section all come from the Japanese government. You can see the original stats (in Japanese CSV format) here.

One important but rarely-cited fact about Japanese divorce law is that most divorces are consensual and involve little legal process at all. These so-called “kyogi rikon” have consistently accounted for 90 to 95 percent of all divorces during the postwar era.

A lot of this has to do with the ease of the consensual divorce. The two parties simply sign and seal a one-page form (here’s a sample in Japanese) and file it with city hall. It’s possible to get a consensual divorce without ever setting foot in court. But there has to be consensus on what to do with property and children. In this respect, the system makes it comparatively very easy to end a marriage so long as there are no particular disputes to resolve.

If the parties can’t agree to the terms of their divorce, they must go to family court. The first phase is “chotei rikon,” essentially a mediated divorce under the auspices of the family court system. It is supervised by a judge but the mediation is conducted by laypeople. If mediation fails, the family court judge can step in with a “shimpan rikon,” a sort of preliminary judgment, but this can be defeated by either party’s objection within two weeks, and so it does not form a statistically significant number of divorces. The last resort is a “hanketsu rikon,” which is also finalized by the family court judge, but can only be concluded upon a showing of particular legal facts such as infidelity, cruelty or unwarranted denial of sexual intercourse. The parties can reach a settlement during the final court process, in which case their agreement is called a “wakai rikon”; this system was introduced in the past decade and has become a not-uncommon way to resolve marital disputes.

It’s a common misconception that mothers always get custody after a Japanese divorce. In reality, fathers end up with custody in a significant percentage of cases. In fact, until the 60’s, they were more likely to get custody than mothers. Check out this graph.

The thing is that (as stated above) most divorces are reached by voluntary agreement of some kind. Once the case gets into family court, the more-or-less official presumption is that the mother is a more suitable custodian unless the father can prove otherwise. The pre-eminent English academic commentator on Japanese child abduction, Doshisha law professor and periodic Japan Times contributor Colin P.A. Jones (who incidentally lost his own kid in a Japanese divorce proceeding) translated the family court’s mediation manual as follows:

When a child is small, it is thought that the mother should generally be designated custodian. For a young child, the mother’s existence is irreplaceable, and in mediation, custody designations should usually proceed from this basis. [. . .]

When a father is demanding to be designated custodian, it is not uncommon for him to base his arguments on the fact that because he has to work outside the home, his own parents can look after the child. However, it can be said that it is better for the child to live with his mother than with his grandparents. Unless the conditions in which a mother lives are judged unsuitable for the child, as a general rule I cannot approve of awarding sole custody to fathers. Even if grandparents do look after the child, it is likely that matters will arise daily in which they will not pay the same level of attention as a parent.

This manual does not have the force of law; it is merely an official reference for the judges. The practical effect of it is that fathers can only win custody by an overwhelming display of evidence that the mother is unfit to be a parent.

(Aside: Our favorite Japanese prime minister, Junichiro Koizumi, kept his first two children in a consensual divorce in 1982. His wife was six months pregnant at the time the papers were finalized and gave birth after the divorce. Koizumi tried to claim this third child as well, but the matter ended up in family court mediation and Koizumi’s ex-wife retained custody. Japanese Wikipedia interestingly doesn’t even name the third child of Koizumi, apparently because he is no longer legally Koizumi’s.)

What about joint custody? There is generally no such thing as joint custody among Japanese nationals. Visitation rights (面接交渉権 mensetsu kosho ken) may be granted by the court, but are often very limited (sometimes to a few hours once per year), are very difficult to legally enforce, and one parent must still be designated as the custodian whether or not the divorce is consensual. The only way a Japanese child can be registered as being in joint custody is if the child has another citizenship and their parents’ divorce was finalized in another country which allows joint custody. (This is not a “legal” provision per se; it was allowed by a Ministry of Justice circular and could theoretically be changed overnight if the Justice Minister changed their mind about the issue.)

Even outside Japan, joint custody is a sticky subject among parents, academics and jurists. Terrie Lloyd made the following statement in his email newsletter earlier this week:

The view of most [Japanese] judges (based on interviews with judges that we have done in the past) is that kids need to be insulated from the hurt between divorcing parents by giving them just one care-giver. But this is a traditional view and has no basis in fact. Child psychologists outside Japan generally agree that kids need the love and attention of both parents, even if they are divorced. Splitting the kids from one parent naturally causes them to side with the other (Parental Alienation Syndrome: PAS), which causes them to have complexes about the missing parent later in life.

Actually, as a glance at Wikipedia would show (and as Professor Jones acknowledges in the article linked above), PAS has not nearly reached general acceptance in the psychological community or the legal community, even in the supposedly more liberal United States.

(Another aside, at the risk of pissing off all the divorced men in the room: I find the use of PAS theory in custody disputes difficult to swallow. Sure, in theory it’s better for kids to have contact with both parents and view both parents as respectable people. In practice, if the parents can’t hold their marriage together, they probably can’t refrain from filling their kids’ heads with crazy talk about each other. So how is bouncing the kids back and forth between homes, and introducing two conflicting stories between the parents in the process, less traumatic for the kids than having one consistent story?

That said, there is a risk of conflating issues here. It’s one thing to park the children in one parent’s household when there is abuse or domestic violence going on. It may also be a good idea when the two parents absolutely can’t get along and their own discord is harming their children. But there are also many cases where children have no idea what is going on between their parents–only that one parent is going away forever–and this boggles my mind. In those sorts of cases, it makes sense to allow ongoing shared custody as an option, so long as the parents can work out logistics between them and agree to keep their disputes between themselves.)

This brings us to the international aspect of Japanese divorce law. International divorces are common in Japan, but not exactly in the form familiar to readers of Debito.org or crnjapan.com. 7.1% of divorces in Japan in 2007 involved a non-Japanese party. The most common combinations were:

* Japanese husband, Chinese wife (1.97%)
* Japanese husband, Filipina wife (1.82%)
* Japanese husband, Korean wife (1.11%)
* Japanese wife, Korean husband (0.35%)
* Japanese husband, Thai wife (0.33%)
* Japanese wife, Chinese husband (0.22%)
* Japanese wife, American husband (0.14%)

Chinese and Korean family law bear a striking resemblance to Japanese family law. The Chinese and Korean systems emerged from the civil law tradition, and like Japan’s, revolve around the concept of a central family registration system where every citizen is tracked. So that means only 2.74% of Japanese divorces involve a country with a “truly foreign” family law apparatus, and it’s probably safe to say that of the total number of divorces in Japan, much less than one percent involve a non-Asian party. These facts are understandable given that Japanese-Asian marriages form the vast majority of international marriages in Japan.

Let’s ask the question on everyone’s mind, though:

Is the system biased against foreigners?

Yes, it is.

But to some extent, the bias is unavoidable.

Unfortunately, there are no statistics to show how foreign parents generally fare in court-administered divorces here. My conclusion, based on many stories floating around the internet and by word of mouth, is that foreign parents are highly unlikely to win custody of Japanese kids from a Japanese court, whether or not the foreign parent is male or female. And given the fact that moms are more likely than dads to keep the kids, foreign dads should not expect much if their marriage falls apart.

A lot of this boils down to cultural differences. A Japanese judge likely has no idea of how a non-Japanese family operates, and is going to have suspicion regarding what might happen in a non-Japanese household. Suspicions aside, a not-so-worldly Japanese person would probably be unpleasantly surprised by many family quirks that are taken for granted outside Japan.

The same is true for courts in other countries. Chris Savoie, for instance, attacked Noriko Savoie in Tennessee divorce court because she had their 6- and 8-year-old kids sleep with her in her bed. This practice is uncommon in the US and would probably seem strange to an American lawyer or judge, but wouldn’t raise an eyebrow in Japan, where it’s often used simply to save space.

Cultural issues aside, there are also some procedural stumbling blocks for non-Japanese in the Japanese divorce system. These are issues which warrant legal revision, both from an international human rights perspective and from a perspective of citizens’ best interests.

Problem 1: There is no contempt of court

This is really an endemic problem throughout the Japanese legal system, not just in the sphere of family court. Even if you can get a judge to order some action or inaction (like “stay away from X’s kids” or “let X see the kids on these days”), they have no way to enforce that order if the counterparty says “no.” All they can do is levy fines, but even if they do that, the counterparty can simply refuse to pay.

Then your only option is “self-enforcement” — withholding payments and finding ways to exert social pressure. Self-enforcement might work to some extent if the enforcing party is savvy about the local system, but it puts outsiders, particularly outsiders in different countries, at a great disadvantage. Courts need teeth if they are to effectively administer any sort of custody-related arrangements.

Problem 2: The arbitrariness of Japanese nationality and conflict-of-law rules

The biggest legal problem in the Savoie case is that Dr. Savoie is a Japanese citizen and apparently hasn’t taken that fact into account in his legal strategy. The following statutory passages explain what I mean:

General Act Regarding the Application of Laws

第三十八条  当事者が二以上の国籍を有する場合には、その国籍を有する国のうちに当事者が常居所を有する国があるときはその国の法を、その国籍を有する国のうちに当事者が常居所を有する国がないときは当事者に最も密接な関係がある国の法を当事者の本国法とする。ただし、その国籍のうちのいずれかが日本の国籍であるときは、日本法を当事者の本国法とする。

(Home Country Law)
Article 38. If a party has two or more nationalities, then the home country of the party shall be the law of the country in which such party has a habitual residence if such a country exists, and should no such country exist, the law of the country having the closest relationship to that party. However, if any such nationality is the nationality of Japan, the home country law of the party shall be the law of Japan.

According to the International Wedding Association, a Japanese NPO, a citizen would have “habitual residence” by virtue of being recorded in the resident registration (juminhyo) system, unless they have actually lived overseas for five continuous years prior to the date of determination.

第二十五条  婚姻の効力は、夫婦の本国法が同一であるときはその法により、その法がない場合において夫婦の常居所地法が同一であるときはその法により、そのいずれの法もないときは夫婦に最も密接な関係がある地の法による。

(Validity of Marriage)
Article 25. The validity of a marriage shall be determined by the home country law of the husband and wife if such law is the same; or if such law does not exist, by the law of the habitual residence of the husband and wife if such law is the same; or if such law does not exist, by the law of the place having the closest relationship to the husband and wife.

第二十七条  第二十五条の規定は、離婚について準用する。ただし、夫婦の一方が日本に常居所を有する日本人であるときは、離婚は、日本法による。

Article 27. The provisions of Article 25 shall apply to divorces. However, if either husband or wife is a Japanese person with a habitual residence in Japan, [their] divorce shall be based on Japanese law.

So let’s run down the facts.

  • First, Christopher and Noriko were married in Japan.
  • Then Christopher became a Japanese citizen. So far, so good.
  • Then Christopher took his wife to the US and divorced her there. But their mutual home country law was Japanese law, so their divorce would have been invalid under Japanese law.
  • Having been improperly divorced for Japanese purposes, Christopher then married Amy.

Whether or not we agree with the propriety of a U.S. divorce for the Savoies, turning Chris into a bigamist is a pretty illogical outcome. I think he could get around prosecution given that he had no apparent intent to be legally married to two people at the same time.

That said, I think Christopher may intend to rescind, or deny the validity of, his own naturalization. The US Consulate says they want to help him out, which should not be the case if he really is Japanese (you can’t get consular protection in a country where you are a citizen). It’s a bizarre argument, and I believe it would fall flat on its face in court as an “abuse of rights” or something similar.

The solution to this problem, inasmuch as there is one, is to revise these conflict-of-law provisions so that Japanese citizens have the clear ability to divorce in a foreign forum under foreign law if they have some requisite connections to that forum. (Formally allowing dual citizenship, and getting rid of the odd ability to rescind one’s own citizenship following naturalization, wouldn’t hurt, either.) But both of these ideas are in conflict with another feature of the Japanese family law system.

Problem 3: The koseki is a moronic concept

If you don’t know what the “koseki” is, read this. The entire family law system in Japan is based on the premise of a giant hierarchical registry limited to citizens.

The koseki-worship in the civil law system here is responsible for a lot of the family law rules. Children legally exist as an entry in their parents’ koseki page. Parents have a koseki page by virtue of being married. When they divorce, they revert to separate koseki pages, and their children must go one way or the other. Thus, in a sense, they legally lose title to their children. And, as many of our readers undoubtedly know, foreigners do not appear on the koseki at all, except as “notes” on their spouse’s page.

Why is this entire system necessary? Familial relations are a personal matter, and are often quite abstract in nature. Is a parent less of a parent because they remarried or because they don’t have a Japanese passport?

The notion of organizing society around households is unnecessarily feudalistic for the modern age, and something more flexible would be better for citizens and non-citizens alike — particularly those for whom familial roots have historically been a source of discrimination (the burakumin, naturalized Koreans and others).

Personal footnote

I don’t have a wife or kids yet. Debito, who has written extensively about his own divorce and loss of children (a dreadfully sad story, but an excellent overview of how the system works here), chided me in a Facebook comment thread for daring to state my opinions while I lack skin in the game. Lest anyone get the wrong idea, I respect Debito, who gave me, Roy and Curzon the privilege of hearing his story in person a good year before he made it public. But where I come from, having no skin in the game is called “objectivity,” and does not by any means disqualify an opinion.

For what it’s worth, I do have some skin in the game, as I am engaged to get married early next year. While I have given up on my farcical plans to transfer my kids to an offshore investment vehicle, I am still very cognizant that the law (even as I think its mechanics should work) may bite me in the rear someday if my marriage ever breaks down.

Sadly, a lot of the discussion surrounding these issues, whether regarding particular cases or the system in general, devolves into parental narcissism, envy and finger-pointing. The whole framework of marriage, divorce and custody is ultimately not about what Mom or Dad wants: it’s about protecting children and giving them a chance to inherit the world as capable individuals. So, as I see it, we have to approach it from that perspective regardless of which side we occupy on the wedding cake.

Sympathizing with Noriko Savoie

The US and Japanese media are focusing much attention on the arrest of Christopher Savoie in Fukuoka. The English language press deems this as yet another case of a victim of Japan’s pre-modern family law. Undeniably, there is a history of Japanese mothers suddenly fleeing to Japan where they are beyond the reach of the law, resulting in more than a hundred abduction cases involving Japan and the US alone, and this needs revision. But sympathetic press articles notwithstanding, Christopher is the wrong martyr to rally behind in this fight — an objective view of the facts makes Christopher’s ex-wife Noriko the figure of sympathy in this story.

Christopher and Noriko met and married in Japan. Christopher had a PhD and was a successful entrepreneur who founded a pharmaceutical business that he took public on the Tokyo stock exchange. He is also a naturalized Japanese citizen. They were married for thirteen years and have two children, currently ages 8 and 6.

While living in Japan, the marriage was breaking down and Noriko asked Christopher for a divorce, which he refused. Instead he convinced Noriko to move with him to the US and they did so in June 2008. No sooner had they moved than Christopher took up with another woman and served Noriko with divorce papers. Noriko was dependent on her husband and had no income for herself and had just been relocated to his home town in a country that she did not know, although she may have been relieved that she was getting the divorce she wanted a year earlier and probably also happy to receive custody of the kids and a generous financial settlement and monthly support. But the arrangements required that she stay in Tennessee and not even visit Japan without court permission. Although we cannot be sure, all the facts make it likely that Christopher was motivated to relocate to his home town to get divorced in a US court.

Thus Noriko was stuck in a country where she was culturally and personally isolated, abandoned by her husband but still expected to raise kids in a new country so her husband could get visitation. So in August, Noriko absconded to Japan with the two kids. Christopher then petitioned the court and was granted custodial rights. He then went to Japan and physically snatched his kids from his wife as they walked to school by force in a car — the very definition of “abduction.” He then raced to the US Consulate in Fukuoka, where the guards refused him entry and he was arrested outside by police. He is being held by police for 10 days and has not yet been charged.

What a US-Japanese citizen hoped to gain in a US consulate is questionable. And the action was clearly pre-meditated. But much of this narrative is lost in the US media reports, which are overwhelmingly sympathetic to Christopher and speak in implied terms of a vast, cultural conspiracy in Japan to favor mothers. The Huffington Post says “Divorced fathers in Japan typically don’t get much access to their children because of widespread cultural beliefs that small children should be with their mothers,” and Forbes writes that the case “underscores long-standing disputes over Japan’s traditional favoritism toward mothers in custody battles.” That’s utter nonsense. The statistics imply that mothers win custody in Japan at approximately the same proportion as the US — and as for Japanese “culture,” fathers were more likely to receive custody until the 1960s. On the contrary, the bias towards mothers is far more ingrained in US culture — for more than a century US courts followed the Tender Years doctrine, under which mothers get prima facie rights to child custody disputes. (Although many state courts have abandoned this on the basis of the 14th amendment equal protection clause, it still exists in many US states.)

There are also lots of factual mistakes in the reporting, such as reporting by CNN that “Japanese law… recognizes Noriko Savoie as the primary custodian.” Actually, Japanese law says that two Japanese citizens are still married, as they are both Japanese nationals and bust be divorced in Japan for the divorce to be valid, in which case there is no way that Noriko is the primary custodian. And while Japan does not have joint custody of children, there are visitation rights. (It is also reported that Noriko has dual US and Japanese citizenship, although the how and why of that is unclear.)

Terrie’s Take of Japan Inc. fame was cited by Debito as being “the best, most thorough, most balanced opinion yet on the case.” (Actually, like much of what Terrie writes, it’s a sloppy newsletter with numerous factual errors.) But beyond that, the most amusing part of that article is that it states,

What is surprising is that [Christopher] chose to get his kids back in a way that exposed him to many untested theories. One of these theories has been that it is OK to abduct your kids back. Indeed the police often do turn a blind eye to home disputes and will allow “mini-abductions” to happen.

Kidnapping as an untested theories? Yes, the cops and courts do try to keep out of family disputes whenever possible — but what Christopher did was kidnapping pure and simple, and even his lawyer has basically already admitted that he was wrong to use force. We can’t guess how this is going to be sorted out, but my guess is that Noriko is about to get some justice in court, and Christopher’s nutty stunts will prejudice him in getting visitation rights. That’s a good thing — and you can think that and still want Japan to modernize its family law to meet international standards.

Ayase crime update: Possible foreigner robs sushi restaurant… across the street from my apartment

While making breakfast this morning, I noticed a couple of news trucks around the sushi restaurant across the street, which is the first thing I see when leaving my apartment in the morning. I figured that Gal Sone was probably eating a metric ton of kohada or something, but the truth was far darker. Kyodo reports:

Robbery at Choshimaru kaitenzushi: 720,000 yen seized

Around 6:30 AM on the 13th, a man entered from the back door of the Ayase Sushi Choshimaru kaitenzushi restaurant in Yanaka 1-chome, Adachi-ku, Tokyo, held a knife to the clerk (26) opening the restaurant, said “Give me your money,” seized 720,000 yen in sale receipts from the safe and fled. The clerk was unharmed.

The Metropolitan Police Ayase Station are searching for the man as a robbery suspect.

According to the Ayase Station, the man is around 30 and about 160-170 cm tall. He was wearing sunglasses, a black short-sleeved shirt and jeans. The clerk claims that “he threatened me in broken Japanese.” (Kyodo)

The Jiji report uses a fascinating phrase to describe the perp: “アジア系外国人風,” which means something like “looks Asian, seems foreign.” Fortunately, I only fit half of those criteria.

Petition to end HIV ban

I’ve mentioned the US’s HIV travel/immigration ban before, and Andrew Sullivan reminds me that there are still two weeks left to sign the public comment petition, in advance of what will hopefully be the final stage of the repeal of this severely out-dated regulation. Surprisingly, I don’t see any wording that the petition is limited to US citizens as I would expect, so feel free to jump in and add your comments. I had to submit to an HIV text when applying for my Taiwan visa back in 2005 (I think they’ve eliminated it since then) and found it pretty invasive (obviously I was negative since I got the visa) and look forward to this restriction being lifted on would-be US residents.

The zairyu card law takes shape

Japan Times reporter Minoru Matsutani has been engaging in some unusually hard-hitting journalism in his recent series on the new immigration bill making its way through the Diet. In three articles, he went through the LDP’s perspective, the DPJ’s perspective, and the Immigration Bureau’s plans.

The third piece is the most interesting, as it takes on some of the strongest arguments against the new law: that it would be unduly harsh on overstayers and that it would inconvenience foreign residents.

Here’s the counter-argument on the first point:

If illegal foreigners turn themselves in, they may, under certain circumstances, be granted special permission to stay by the justice minister, or placed in custody in preparation for deportation.

The bills stipulate the justice minister must clarify the standard to grant special permission to stay to motivate overstaying foreigners to turn themselves in.


The bureau currently has no concrete criteria for granting the permit. Instead, it shows on its Web site examples of cases it granted and those it didn’t, but the information provided may not give illegal foreigners a clear clue as to what their fate may be, [Immigration Bureau General Affairs Division official Kazuyuki] Motohari said.

In one case on the Web site, a 27-year-old Southeast Asian woman was granted permission in 2007. She entered Japan with a six-month student visa in October 2004, dropped out of school and continued to stay in Japan.

She was arrested for overstaying in 2007, sent to the bureau without criminal charges and married a South American man, a legal resident, she had begun living with before the arrest. The bureau concluded their marriage was credible and she otherwise had a clean criminal record, it said on the Web site.

And on the inconvenience factor–the issue of certain changes having to be made at the immigration office rather than at city hall:

The Immigration Bureau is considering enabling foreign residents to report changes in workplace and apply for renewal of residence cards via mail or the Internet instead of requiring them to go to local immigration offices, he said.

Currently, renewing alien registration cards, which are to be replaced by zairyu cards, and reporting changes in personal information can be done at municipal offices, more of which exist than immigration offices.

For address changes, residents can go to municipal offices even under the new system. For changes in name, gender and nationality, they will have to go to immigration offices instead of municipal offices, but such changes rarely occur.

Together with the fact that this new system will give foreigners the same residence records as Japanese, as well as other benefits like free re-entry permits, it sounds as if the change is still, all in all, good for foreign residents.

Important Japan visa rule update

According to the Ministry of Justice website, starting April 1, 2010, anyone extending their Japanese visa or changing their residency status will be required to show a valid health insurance card/booklet. The relevant portions are below.


8. 社会保険に加入していること

While technically the rules have already required registration in the national health system (technically it is a duty of almost all residents, citizens included) there has not previously been any penalty for non-registration, although I hear a history of insurance non-registration it may cause problems when applying for permanent residency or citizenship. Note that although in principle residents are supposed to be registered in both the national health insurance and the pension scheme, these regulations refer only to the health system, and it does not seem that non-registration in the pension scheme will have any effect on visa renewals.

I have met an awful lot of foreign residents of Japan over the years who have never bothered to register for either public social insurance program and have never had any trouble over it, but this will not be the case in the future. Any Japan resident foreigners not registered in the national health insurance who are thinking of extending their stay past their current visa term had better look into registration ASAP.

Asahi op-ed: Indonesian nurse program a cruel joke

There is an interesting opinion piece on the Asahi English site (thanks JapanProbe) on the Japan’s program to train Indonesian nurses started last year, under a bilateral economic treaty:

POINT OF VIEW/ Atsushi Takahara: Foreign nursing trainees face unfair hurdles

… Having finished a six-month Japanese-language study program, they started working in January and February. All of them are qualified to work as nurses in their home country and many of them have a lot of nursing experience. But most of those I met expressed anxiety and frustration.

This is because of the system that requires them to pass Japanese state exams within specified periods. If they fail, they must return to their home country. Would-be nurses have three chances to sit for the exams in three years of their stay. Conditions are tougher for aspiring care workers. Since foreign trainees are required to have actual working experience in Japan for at least three years before they can take the exam, they only have a single chance to pass in four years.

The language barrier weighs heavily on them. In particular, learning kanji characters is very difficult. For example, they must struggle with such technical terms as jokuso (bedsores) and senkotsubu (sacral region) that are difficult to read and understand, even for the average Japanese. Holding a Japanese-Indonesian dictionary, one trainee lamented: “I feel as though my head is about to burst.”

Under the comprehensive EPA, Japan accepts the trainees from Indonesia in exchange for the economic benefits, including abolition or reduction of tariffs on its exports of cars and electronic equipment. The government stands by the traditional policy of refusing to accept unskilled foreign laborers. Therefore, the government’s stance is that the acceptance of nursing trainees this time is a form of personnel exchange and is not meant as a measure to address a labor shortage. The government’s cold attitude seems to be a reflection of such a position.

After the government-sponsored six-month language training in Japan, the nurses must either study on their own or receive assistance from their workplaces to get their Japanese levels up to that of a practicing nurse’s. All for an all-or-nothing attempt at Japanese nursing qualification after four years! Sure, that’s what the program has been from the beginning, but I think what Takahara is trying to say is that what started as unfair remains unfair and should be changed.

So let me get this straight –  in order to fulfill the letter of a treaty requirement that benefits Japanese companies with tariff relaxation, the Japanese government has decided to use these already-qualified nurses as pawns and in the process waste years of their lives. A similar fate no doubt awaits the Filipina nurses slated for acceptance under a similar bilateral arrangement with Japan.

According to an overview of potential benefits of the Japan-Indonesia “economic partnership agreement” (EPA) (PDF) released at the time of signing in August 2007, Japan is the largest single export destination for Indonesian products. Japan, for its part, chiefly benefits from Indonesia’s abundant natural resources (a key factor in their decision to invade during WW2). The country is Japan’s second most important supplier of liquid natural gas after Australia. LNG provides 35% of the household gas supply in Japan, according to Wikipedia. As with most trade agreements, the sheer number of line items and flood of statistics makes it tough to get through in a matter of hours let alone minutes, but suffice to say this agreement provides considerable tariff reduction, promises of market access, and non-tariff regulatory reforms that all serve to lower the cost and hurdles to doing business in either country. Also like other bilateral trade agreements, Japan is likely getting the better deal thanks to Japanese companies already superior competitive position.

Though I loved studying kanji and pursued it with a passion, I am a spoiled American and that was when I was in my prime learning years in my late teens and early 20s. These experienced nurses, who are in this country to make a living and previously had little inclination to study a foreign language, must find the task quite daunting (and distracting from the actual practice of care-giving). If my experience with a much simpler examination is any indicator, Japan’s exam culture will be no joke for a tightly regulated profession like nursing.

Could no compromise be found to help actually make this program work? Of course, that would assume that the Japanese government wants the program to work. As the op-ed notes, the acceptance of these nurses was essentially a token gesture to the Indonesian government, not a good faith effort to do right by anyone, either the nurses who want to work in Japan or the hospitals, patients, and other stakeholders in Japan. While I cannot know the intentions of the crafters of this program (it appears to have been hammered out through bilateral negotiations led by the foreign ministry), it’s entirely possible that they’d prefer to see these programs fail so other countries won’t demand their inclusion or expansion in future economic negotiations.

This points to a possible problem with making these decisions within the framework of comprehensive trade agreements rather than Japan unilaterally deliberating on its own future. While I understand the rationale of international “free trade” agreements as a way to circumvent narrow national interests for the greater good of efficient economies, the tight restrictions on these nurses constitute anything but free trade. And as part of a treaty covering billions of dollars in trade and the entire economies of two countries, how can 208 nurses hope to be anything but a footnote?

But once negotiated, this program has in fact benefitted from a relatively high level of scrutiny, since it is a pilot program, the foreign, Muslim nurses stand out, and ironically because they are negotiating tools in high-level bilateral trade ties. As Takahara notes, “If the trainees go home feeling angry with Japan’s ‘cold policy’ and such a reputation spreads, it could cause a deterioration in Indonesian public sentiment toward Japan. ” For that reason and the real need to find solutions to Japan’s aging society, the government and the public have an interest in seeing programs like this succeed, though whether that interest will translate into a fair shake for these nurses or better results down the line is another issue entirely.  

Takahara and I may be proven wrong to conclude that the nursing exam is just too hard for most of these nurses, but I doubt it. As unjust as the Indonesian nurses’ situation sounds, perhaps the experience of these programs can open the issue to more public criticism and maybe some solutions (Takahara seems to be in favor of giving the nurses more time to pass the test and more flexibility and support in general). That way, what began as a farce can be turned into a workable program.

HIV testing for visas

In a blog post earlier Andrew Sullivan wrote that:

the US is the only developed country – and one of only a handful of undeveloped countries – that still tells the world that people with HIV are dangerous pariahs, who need policing at borders and deporting if discovered.

When I went to study abroad in Taiwan 2005-2006 they actually did require an HIV test to get a visa, as did China, who abandoned the policy with much fanfare a year or two ago. However, I never saw an announcement that Taiwan did so, but I also could not find any mention of it in the current visa application procedures. Does anyone know if Taiwan has abandoned the HIV test policy, and if so, when? I suspect that they ditched the policy around the same time China did, but did so quietly to avoid drawing any attention to the fact that they continued a system criticized as backwards and uncivilized when the PRC was doing it.

Japan, Czech Republic, and Spain: Foreigners, we’ll PAY you to leave

Japan made world headlines in the last few weeks as it began a program to pay second generation Latin American immigrants to go home. It may have been the first domino in a chain of rich countries — now the Czech Republic and Spain are offering immigrants a similar “buyout” if they’ll leave and promise not to come back:

During its manufacturing boom earlier this decade, the Czech Republic wooed immigrants with plentiful jobs and comparatively higher wages. Now the Czech government is paying them to go back home…

Other countries in Europe have reacted similarly, amid rising unemployment. Last November, Spain’s Socialist Party government launched a program to send 100,000 immigrants home. Those who promise not to return to Spain for three years get six months of unemployment benefits — an average payout of €14,000 ($18,500). Some 4,000 immigrants have taken the cash.

The catch, of course, is that once the immigrant leaves, they promise not to come back. But from a practical standpoint, it’s not quite that simple, especially in the EU, where a migrant can take the cash and mozy into another part of the EU.

Europe has a history of offering immigrants cash to go. After World War II, countries including Germany and France recruited thousands of guest workers to help rebuild shattered economies. France launched the first of these programs in 1977, and thousands of immigrants went home.

But there were drawbacks. Many immigrants who took the cash later broke the ban and returned to France. And apart from making them feel unwelcome, the payments often weren’t enough to entice workers who felt job prospects back home remained bleak. Such complications also bedevil the Czech Republic’s program.

You’ve at least got to hand it to the Europeans for being sensitive about the topic. Czech NGOs and government officials stress that, in distributing information on the buyout, they’re only informing immigrants of their options. Japan is being borderline dishonest. When the plan was announced, some thought that the package was almost a paid family leave scheme, and the promise never to return was only fine print.