Detention involves restricting a foreign national’s physical freedom. Foreign nationals suspected of being subject to deportation may be detained when there are reasonable grounds for such suspicion. In simple terms, because it is not yet certain whether the individual must be deported, they are taken into custody as a precautionary measure until the final decision is made. The command for this is the “Detention Order,” and the actual document is the “Written Order of Detention.”
The Flow of Detention: Before and After
The sequence of events surrounding detention follows a straight line along the deportation process, from the initial trigger to the final outcome.
- A specific action or event involving a foreign national occurs.
- If the action appears to fall under grounds for deportation, an immigration control officer investigates and determines whether detention is necessary.
- The Supervising Examiner (the officer’s superior) issues a Written Order of Detention if they agree with the decision.
- The foreign national is taken into custody based on the Written Order of Detention.
- During detention, a hearing (inquiry) is held to determine if the individual truly meets the grounds for deportation (the individual also participates in this process).
- If the result leads to release, the process ends successfully. If deportation is decided, a “Written Order of Deportation” is issued, and the execution of the removal process begins.
- The individual is then detained under the Written Order of Deportation.
- The individual is removed from the country while remaining in custody.
Relief Measures Prior to the Deportation Hearing
If you are suspected of meeting the grounds for deportation, there are various systems and methods available to clear those suspicions during the subsequent hearing process.
While awaiting the hearing, even if you are about to be detained under a Written Order of Detention, it is sometimes possible to avoid physical custody while still participating in the proceedings. The two primary methods for this are “Provisional Release” and “Monitoring Measures.”
Monitoring Measures (Kanri-Sochi)
A system where the individual is allowed to live in the community under the supervision of a monitor (such as a relative or acquaintance) instead of being held in a detention facility.
Provisional Release (Kari-Homen)
A system where physical custody is lifted due to health, humanitarian, or other similar compelling reasons.
Purpose of Detention under a Written Order of Detention
The purpose of detention is to achieve the following objectives through physical custody:
- Prevention of flight.
- Prevention of destruction of evidence.
- Prevention of the continuation or commencement of illegal activities.
Different from Imprisonment or Incarceration
Since the objectives are as stated above, the purpose is not the rehabilitation or correction of the individual. Unlike imprisonment, there are no penal provisions or obligations to perform labor (such as in a prison sentence). Restrictions are kept to the minimum necessary to achieve the stated purposes.
Protection of Human Rights
Whether in incarceration or immigration detention, and whether the person is a Japanese citizen or a foreign national, human rights are protected from arbitrary government treatment.
Content of Detention and Treatment
Treatment during detention is strictly regulated by rules because it involves the deprivation of liberty. This follows the concept of the “Principle of Legality” (the idea that punishment rules must be decided in advance to prevent irrational and arbitrary decisions), which is borrowed from the Rule of Law.
Legal Basis for Treatment
Rules for treatment are established at the governmental level, the ministerial level, and the specific detention facility level. Rules at a lower level cannot contradict or exceed those at a higher level, which prevents individual subordinate organizations from acting arbitrarily. Furthermore, the core Immigration Control Act is established by members of the Diet (House of Representatives and House of Councillors).
- Immigration Control and Refugee Recognition Act
- Regulation on the Treatment of Detainees (Ministry of Justice Order)
- Detailed internal rules for each immigration center and regional bureau
Ensuring Rationality and Preventing Arbitrary Decisions
A Written Order of Detention is triggered by an immigration control officer’s investigation, but the order itself must be issued by their superior, the Supervising Examiner. This prevents individual officers from making arbitrary detention decisions.
Emergency Detention
However, immigration control officers may sometimes detain a foreign national on their own authority without a pre-issued order from a Supervising Examiner. This is permitted only under the following conditions:
- The individual clearly falls under one of the grounds for deportation.
- There are reasonable grounds to believe the individual may flee if detention is delayed until an order is issued.
Detention Period
The period for which an individual can be detained under a Written Order of Detention is set at 30 days or less. If there are compelling reasons, this may be extended by another 30 days maximum. Therefore, the detention period under this order is basically within 30 days, with a theoretical maximum of 60 days in total.
Detention Location
The locations for detention are designated as immigration detention centers, regional immigration bureaus (including branches and certain district offices), or other locations designated by the Minister of Justice.
Difference from Detention under a Written Order of Deportation
Strictly speaking, this is different from—though similar to—detention under a Written Order of Deportation, which is issued after deportation is finalized. Both are part of the single process of removal from the country.
Detention under a Written Order of Detention
This is the precautionary detention of a foreign national suspected of meeting the grounds for deportation. It represents custody during the first half of the deportation process, prior to the final decision.
Detention under a Written Order of Deportation
This is the detention of a foreign national who has been officially determined to meet the grounds for deportation. It represents custody during the second half of the process, once removal has been finalized.