For more than four decades, the courts have often denied human rights for foreigners without status of residence based on a precedent set by the Supreme Court. But rights advocates hope that a recent landmark ruling is a signal that may be about to change.

In September, the Tokyo High Court recognized the right of access to the courts to two Sri Lankan men, who were deported before they could file suit against a government decision to reject their applications for refugee status.

The decision has been finalized as the government decided not to appeal.

The ruling marked a stark departure from the top court’s 1978 decision on what is known as the McLean case, which said human rights are not guaranteed for foreigners without status of residence.

Lawyers for the Sri Lankans have expressed hopes that it will prompt change in Japan’s judicial decisions and administrative practices.

“I hope that judicial decisions will be freed from the framework set by the McLean precedent and give more consideration to individual circumstances so that families will not end up dispersed when foreign nationals seek a revocation of deportation, for example,” said Wataru Takahashi, a member of the defense counsel.

Takahashi also said he hopes immigration officials will stop ignoring the human rights of foreigners when they are placed under their custody.

In December 2014, one of the Sri Lankans involved in the case said he would go to court to seek refugee status when immigration officials told him that his application had been denied.

“My life would be at risk if I were to return (to my home country),” he told officials of the Tokyo Regional Immigration Services Bureau. “I will take the matter to court.”

Before he could contact a lawyer, however, he was told that he would be deported and his cellphone was taken away. He was sent back to Sri Lanka the following morning.

The man, who is in his 50s, frequently moves and changes his job because he is politically persecuted.

“If only I had been able to get in touch with a lawyer, I would have filed a lawsuit,” he told The Asahi Shimbun.

In its Sept. 22 decision, the Tokyo High Court criticized the Immigration Services Agency of Japan for deporting the two Sri Lankans without giving them time to consider taking the matter to court.

“(The men) should not have been substantially deprived of their opportunities for seeking a judicial review,” the ruling said.

The court said immigration officials had violated the plaintiffs’ right of access to the courts, which is guaranteed under Article 32 of the Constitution.

The officials also went against Article 13, which says all people should be respected as individuals, and Article 31, which says due process should be guaranteed, according to the ruling.

The immigration agency argued the Sri Lankans improperly applied for refugee status so they could work in Japan, but the court dismissed the argument and stressed the importance of the foreigners’ rights.

“Whether they improperly applied for refugee status should have also been put to a judicial review,” the ruling said.

PRECEDENT OF VIETNAM WAR PROTESTER

In its decision on the McLean case, the Supreme Court ruled the basic human rights spelled out in the Constitution are only guaranteed for foreigners within the framework of Japan’s residence status system.

Ronald McLean, who took part in protests against the Vietnam War while he was in Japan, argued for his right to engage in political activities. But the top court denied the U.S. national an extension of his period of stay.

Takahashi said most of the requests for residence permits, made in court under Article 13 of the Constitution, which provides for the dignity of individuals, and other provisions have been rejected on the grounds of the McLean precedent.

In 2019, there were about 150 trials over deportations, according to the immigration agency.

Still, Japan ratified the International Covenants on Human Rights, which provides that human rights should be guaranteed for all people in a signatory nation, in 1979. The country also became party to the Convention Relating to the Status of Refugees in 1981.

Eriko Suzuki, a professor of sociology with Kokushikan University who is well-versed in policy dealing with foreigners, said the notion that rights can be recognized for foreign nationals only within the framework of the residence status system runs counter to those international conventions.

“The McLean precedent has given a seal of approval for the practices of immigration officials who do not treat foreigners as decent human beings,” Suzuki said. “The high court ruling can be seen as having applied the brakes on the (status quo) mindset of immigration officials by sending a message that the justice system stands by foreigners.”

While many foreigners have been deported before they were allowed to go to court to contest a government decision to deny them refugee status, the high court stated they are “institutionally” qualified to file suit without referring to the McLean precedent.

CALLS FOR INVESTIGATION

The defense counsel for the Sri Lankans called on the Justice Ministry on Dec. 14 to investigate similar cases that took place during the past decade and release the findings within a month.

“Detention, deportation and other problems are not likely to improve unless the way immigration officials have treated those without status of residence is brought to light,” Takahashi said.

The defense counsel said they know of at least 46 other foreign nationals who, like the plaintiffs, were deported immediately after they were told their complaints against being denied refugee status had been dismissed.

The defense counsel also called on the ministry to allow the two men to re-enter Japan.