(1) The Immigration Control and Refugee Recognition Act (Immigration Act) stipulates that, in order to be given permission to reside and work in Japan, a foreign citizen must hold a residential status. First legislated in 1951, the Immigration Act underwent a major amendment in 1989, and now specifies 27 categories of residential status. Broadly speaking, residential status is classified into “status based on activity,” including artists, medical doctors, medical services, and college students, and “status based on identity and position,” which includes permanent residents and their spouses, spouses of Japanese citizens, and foreigners of Japanese descent (Nikkeijin) who have residence in Japan. Foreigners in the latter category are not subject to any restriction on working in Japan.

(2) “Work outside of permitted status” means the employment of a foreigner either (i) who doesn’t have any authorized residential status because he or she entered Japan illegally, or illegally stayed beyond his or her permitted residential period, or (ii) who holds an authorized residential status based on activity, but works without obtaining a permit to engage in activity beyond the originally permitted status.

(3) Prior to the 1989 amendments, with the exception of spouses and children of Japanese citizens, and permanent residents and their spouses and children, the Immigration Act limited the right to work to people with the status of “trainees,” “providers of technology,” “skilled workers,” and high-tech and professional jobs that could not be performed by Japanese. Thus, there was no type of residential status that allowed foreigners to engage in unskilled labour. However, along with the rapid growth of the Japanese economy in subsequent years, there was a sharp increase in the number of foreign workers working beyond their originally permitted status, particularly in economic activities requiring unskilled labour. In response, the government amended the Immigration Act in 1989. While still not granting any residential status that would allow foreigners to perform unskilled labour, it expanded the types of residential status eligible for employment, clearly defined the types of activity prohibited to holders of each residential status, and instituted deportation procedures and penalties against violators. The newly established offense of “abetting illegal work,” one of the key penal provisions under the amended law, provides for penalties against both brokers and employers who are involved in the employment of illegal workers.

(1) The estimated population of foreign workers, including illegal workers, totaled 260,000 in 1990, with the number increasing to 760,000 in 2002. Many of those foreign workers have begun settling in Japan.

(2) The “9th Basic Plan for Employment Policy” (a 1999 Cabinet decision), which articulated the Japanese government’s basic position on the acceptance of foreign workers at the time, called for the active acceptance of foreign workers with professional and technical capabilities. However, this number reached only 180,000 in 2002, a much smaller number than the total of 760,000 foreign workers that year, showing that the attraction of highly-skilled workers has not been successful.

(3) In fact, the real trend in the acceptance of foreign workers has moved in the opposite direction from the aforementioned government position. In Japan, the population of atypical workers such as fixed-term, part-time, temporary and contract workers is rising. These workers are subject to poorer working conditions, including wages, than so-called “regular workers,” and their unionization rate remains extremely low. Along with this stratification or polarization of the Japanese employment structure, workers of Japanese descent, illegal foreign workers, foreign trainees and student interns are being incorporated into the lower strata of the Japanese employment structure. They have begun forming a large workforce performing unskilled labour.

(4) The number of workers of Japanese descent sharply increased from 72,000 in 1990 to 234,000 in 2002.
    The 1989 amendments to the Immigration Act: (i) continued to not allow any residential status that would enable foreign workers to engage in unskilled labour, (ii) strengthened the crackdown against illegal foreign workers, and (iii) newly established a ”long-term resident” status. Even before the 1989 amendments, there had been no legal restriction on work by foreigners of Japanese descent (Nikkeijin) who held Japanese citizenship, but the 1989 amendments enabled those even without Japanese citizenship to engage in work without restriction under the ”long-term resident” status. As these amendments coincided with a worsening of economic conditions in Brazil, many “migrant” Nikkeijin workers flowed into Japan.
    Though no restrictions are imposed on work by Nikkeijin, in fact most engage in unskilled labour in the manufacturing sector. Further, despite having worked in Japan for many years, there are few opportunities for them to improve their careers. Also, they have formed local communities densely populated with Nikkeijin, and problems of housing, education and others, which will hang over coming generations, have emerged.

(5) The 1989 amendments aimed among other things to clamp down on illegal employment, but the number of “overstayers” is in fact rising. Many are engaged in illegal work, mostly in unskilled labour. The number of overstayers doubled from 110,000 in 1990 to 220,000 in 2002.