Submitted by crinadmin on
JAPAN
Title:
Demand for rescission of a deportation order
Court:
Tokyo District Court
Date:
March 23, 2007
CRC Provisions:
Article 3: Best interest of the child
Article 9: Separation from parents
Other International Provisions:
International Convention on the Status of Refugees
Case Summary:
Background:
A Turkish national and a Philippine national separately entered Japan and overstayed their respective visas, remaining in Japan illegally for over ten years. During this time, a daughter, a Philippine national, was born in Japan and the two subsequently decided to get married. A deportation order was been issued against all three individuals, including the child, and their application for refugee status was denied. The family requested that the Court void the deportation orders as well as the order denying their application for refugee status, asserting, among other things, that the measures the authorities took in the proceedings regarding their illegal presence in Japan breached Japan’s obligations under the CRC.
Issue and resolution:
Immigration; separation from parents. The Court found that it would not cause extraordinary hardship for a young child to start a new life in one of the parent’s native countries and also that children can be separated from their parents in connection with a deportation proceeding if need be. The Court therefore denied the request to void the deportation order and the order denying the application for refugee status.
Court reasoning:
Article 9 of the Convention on the Rights of the Child provides that where a separation results from any action initiated by a State party to the Convention, such as the deportation of one or both parents or of the child, upon request, the State party must provide the parents or the child with the essential information concerning the whereabouts of the absent member(s) of the family. This provision cannot be read as a prohibition against the separation of parents from their children in connection with a deportation proceeding.
As a general matter, the right of families to stay together, the right of children to be protected by their parents and ensuring the best interests of the child must be respected as universal values, and may be considered as a factor in determining whether the Minister of Justice issues special permissions to remain in Japan. However, international conventions, including the Convention on the Rights of the Child, do not directly govern the decisions of the Ministry of Justice. Accordingly, violations of the rights and interests or families, children and/or parents resulting from immigration decisions do not amount to a breach or abuse of authority under Japanese law.
Excerpts citing CRC and other relevant human rights instruments
as translated by CRIN:
3-2(4)
“…. Furthermore, the plaintiffs assert that the deportation order and denial of application for refugee status breach Article 3-1 of the CRC, which requires that the best interest of the child be considered in taking any measures regarding the child and Article 9-1 of the CRC, which requires that a child not be separated from his or her parents against their will.
However, Article 9-4 of the CRC provides that where a separation results from any action initiated by a State party, such as deportation of one or both parents or of the child, upon request, the state party must provide the parents or the child with the essential information concerning the whereabouts of the absent member(s) of the family. This provision cannot be construed as a prohibition against separation of parents from their children in connection with a deportation proceeding and should be regarded to be in line with international customary law mentioned above in 1.
As a general matter, the right of families to stay together, the right of children to be protected by their parents and ensuring the best interests of the child must be respected as universal values, and may be considered as a factor in determining whether or not the Minister of Justice issues special permissions to remain in Japan, however, it cannot be said that the provisions in international conventions to which Japan is a party directly regulate the decisions of the Ministry of Justice. Accordingly, if certain rights and interests mentioned above are violated as a result of non-issuance of a special permit to stay in Japan, the reasonable interpretation would be that such non-issuance alone would not constitute a breach or abuse of authority.”
CRIN Comments:
CRIN believes this decision is inconsistent with the CRC. The Court recognised that children's rights and best interests are at stake in immigration proceedings, but failed to hold the Japanese government to its obligations under the CRC to respect these rights and interests in reaching its decisions. In addition, although the separation of families is not prohibited in all circumstances under the Convention, states should seek to keep children and their parents together wherever possible.
Citation:
2004 (Gyo- U) 111
Link to Full Judgment:
http://www.courts.go.jp/hanrei/pdf/20070330115208.pdf (Japanese)
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.
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