Demand for rescission of a deportation and other order
Nagoya District Court
December 9, 2010
Article 3: Best interests of the child
Immigration Control and Refugee Recognition Act
In 1994, a father, mother and their three sons, all Peruvian nationals, entered Japan using fake passports under false names and lived in Japan illegally for over 14 years. In 1998, all five members of the family applied for a visa extension to stay in Japan, but all of their applications were denied. The family continued to live in Japan and in 2000, they had a daughter who under Japanese law was considered a Peruvian citizen. In 2001, a legal proceeding against the members of the family was suspended because the individuals failed to report to the immigration control office. In 2006, the family reported to the immigration control office seeking permission to remain in Japan. In 2008, the immigration police turned the father, mother and daughter over to the immigration control office for alleged violation of the Immigration Act. On January 6, 2009, the three sons were granted permission to stay in Japan for one year as residents. On the same day, a deportation order was issued against the father, mother and daughter. The father, mother and daughter applied to the Court seeking a rescission of the deportation order.
Issue and resolution:
Immigration. The court noted that Article 3 of the CRC requires the best interests of the child to be taken into account when making any decision regarding that child. The Court found that it would clearly be very difficult for the daughter, who does not speak any Spanish, to live in and study in Peru. The Court also noted that it would also not be in the daughter's best interests to be separated from her parents, and accordingly, any determination regarding the father, mother and daughter should be made as one. As such, the deportation order should be rescinded in its entirety.
In addition to Article 3 of the CRC, the Court noted that one of the factors in favour of granting special permission to reside in Japan is if the individual lives with and cares for a biological child who has resided in Japan for a considerable number of years and attends a Japanese elementary or middle school. This factor is relevant in light of the daughter's circumstances. The three sons have been permitted to stay in Japan, but it would not be in the best interest of the daughter to be permitted to remain in Japan only without her parents.
The Court further noted that even though the family members all lived in Japan illegally using false names, the authorities had tacitly approved their presence by failing to take action against them for over 8 years when they had opportunities to do so, and it was during these 8 years that the daughter was born. Accordingly, it is not reasonable to over-emphasise their illegal actions and immediately deny the father, mother and daughter the opportunity to remain in Japan based on these actions.
Moreover, if the father, mother and daughter are not granted special permission to remain in Japan, they would be separated from their three sons who are studying in Japan. Apart from immigration and employment, the father and mother have not engaged in any criminal or otherwise problematic acts; rather, they worked very hard to raise their sons and get them through school despite the difficulties of their illegal immigration status. Taking all these factors into account, the decision to issue a deportation order against the father, mother and daughter was unreasonable and unwise. It must therefore be said that the authorities abused their discretion in issuing the deportation order.
Excerpts citing CRC and other relevant human rights instruments
as translated by CRIN:
...[T]he Convention on the Rights of the Child provides that the best interests of the child must be considered when taking any actions concerning children; further, the new guidelines provide that 'if the foreign national resides with and cares for a biological child who has resided in Japan for a considerable number of years and attends a Japanese elementary or middle school (excluding an educational institution instructing in such foreign national's native language), this factor would weigh very heavily in favour of such foreign national in a determination on the issuance of a special permission to reside in Japan.' Accordingly, in determining whether or not to issue the plaintiffs special permission to reside in Japan, the facts pertaining to the daughter must be considered in their favour."
CRIN believes this decision is consistent with the CRC. As recognised by the Court, the best interests of the child must be considered in any proceedings that concern children, whether or not they are the direct subject of these proceedings. Children also generally have the right to be raised by their parents, and Governments should make efforts to keep families together wherever possible.
2009 (Gyo- U) No. 19
Link to Full Judgment:
This case summary is provided by the Child Rights International Network for educational and informational purposes only and should not be construed as legal advice.