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soluuhuong1
member
ID 61635
07/03/2010
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SƯU TẦM
Q1. An overstaying acquaintance of mine was uncovered, and imprisoned by the immigration authorities. Will he have to return to his country straight away?
A1. If the immigration department suspects a violation of immigration law, a detainment order will be issued and the violator will be detained. In other cases, the detainment order may be issued immediately after detainment.(Under a detainment order a person can be detained for up to 30 days. The order can then be extended for up to another 30 days.) Then, within 48 hours the individual will be handed to the immigration investigators, and the expulsion process will begin. If during the investigation of the suspected violation there is no objection raised, the expulsion order will be promulgated immediately (incidentally, there is no time limit on this expulsion order). If the individual asserts an objection, the case will be turned over to the special enquiry section. If there is still an objection after an oral investigation, one can ask for a decision by the Ministry of Justice, and if it is recognized that the person has circumstances requiring special permission to reside in Japan, then this special residency permit may be issued. In the case where the individual has wages owing him, or he is in the middle of a dispute with employers over accident insurance etc, or he is in the middle of a legal hearing, or else if in the middle of processing a marriage to a Japanese person or to a foreigner with permission to reside in Japan, then the individual is advised to mention this beforehand.
While in detention you have the right to contact your embassy, call a lawyer and other acquaintances. Also if there is anything you want to take back with you to your country, or some dispute you have in Japan, please assert your rights firmly.
Deportation expenses are theoretically national expenditure, or else those who own a vessel or who are in the transport business pay the expenses, but in reality most are expected to return to their countries at their own expense, so those with no funds to return may be detained some time. If you have been detained for a long period please contact someone outside by mail or telephone. There is the possibility that the government or else your embassy will help you pay the expenses.
Q2. My friend was caught for overstaying and taken to court. When I tried to visit her at the police station I was not allowed to see her, being told she cannot understand Japanese. I have telephoned the public-appointed lawyer, but he just hangs up on me without hearing what I had to say. My friend is slightly mentally unstable, and she normally uses sleeping pills, so I am very worried about her health. I notice that the police also seem to be quite concerned.
A2. In criminal court cases in Japan, every defendant must have a lawyer. When the individual cannot employ a lawyer the state will supply one. This is what the public-appointed lawyer is. Once the lawyer is fixed, you cannot change the lawyer. The only way you can get another lawyer is to pay for one privately by yourself.
I don't know what you mean when you say the police seem concerned, but if your friend has a mental problem and needs special care, then I think you should consult directly with the person holding her in detention. You can also go directly to the individual investigator.
The public-appointed lawyer is supposed to go to visit the detainee before the court hearing. If it seems that the lawyer has not been to see your friend, please consult with the lawyers' association. If there are any other problems with the lawyers conduct, please consult with the lawyers' association by mail or orally.
Q3. I am a Japanese woman. I met an Iranian who had overstayed his visa. After a while, he was arrested by the police and sentenced to two years imprisonment with a three year suspension. Finally, he was deported, two years ago. I went to Iran a year ago and we were married. I returned to Japan by myself and registered our marriage with the city hall. The period of suspension will be over next year. How can I bring him back to Japan?
A3. It is extremely difficult for a foreign national who was deported from Japan for overstaying his visa to re-enter. It is possible to have a re-investigation of his application to enter the country, but this being approved is highly unlikely.
If he can get a ticket to Japan as a tourist, and somehow come to Japan that way, it is possible to get permission to enter. Then he will have the option to change his tourist visa to a spousal residence visa.
Whether he applies for a reinvestigation or comes as a tourist, I recommend you to consult with an NGO or a lawyer. It's advisable to get expert advice on which documents to get ready and how to fill out the papers.
Q4. I am a Filipina woman married to a Japanese man. I have a child in the Philippines by my former husband, and I want to bring him to Japan and have him attend a Japanese school. My aged mother is also in the Philippines (my father is dead) and I would like to bring her to live with us in Japan too. How would this be possible?
A4. You should look also at Question 6. In the rules for long term residence, it says a child who is unmarried and of minor age, and who is the real child and the financial dependent of a Japanese or a person who has residence in Japan (spousal or other), can receive long term residence in Japan.
Therefore if you have a spousal or other residence permit and if your child is your real child, a minor and unmarried, and if the child is receiving financial support from you in Japan, then you can apply for certificate of residence permit as a long term resident.
For support of the child, there will be school fees and living expenses, so you need to get the cooperation of your present Japanese husband.
Next, about your aged mother, at the moment, Japanese law does not have any provision for bringing a parent to Japan, so that could be very difficult.
If your mother is all alone in the Philippines and has no one to take care of her, or she has special circumstances requiring her to live in Japan, or other humanitarian issues, it may be possible to have the Justice Ministry issue long term residency for special reasons.
Q5. A friend of mine overstayed his visa and was arrested by the local police. Is there a way to find out what is happening to him while he is in detention or to protect his rights? I am worried about fees to employ a lawyer.
A5. In Japan there is a system for employing a publicly appointed lawyer for criminal suspects, but you cannot use this system until the suspect is actually taken to court. Therefore when an individual is arrested and detained for a criminal offense, he can be left completely alone with no assistance. For this eventuality, the national lawyers' association has a duty lawyer system.
If the suspect, his family, or a friend applies to have a lawyer, the duty lawyer will go to the police straight away and work to make sure the suspect's rights are being protected. Please tell the lawyer if you need an interpreter. Once it's possible to meet with the duty lawyer, you can get information about the criminal case and you can ask about your doubts and fears.
There is a system to elect a lawyer with funds assistance for those in dire financial straits, from the Legal Aid Association, and there is also the above-mentioned system for those who have been arraigned. Please consult at your nearest Lawyers' Association Foreigners Legal Assistance Bureau or NGO for Foreigners' Assistance.
The below should be contacted in Japanese:
Duty Lawyer Contact Tel:
(Tokyo) 03 3580 0082
(Chiba) 043 221 730
(Saitama) 048 866 9845
(Yokohama) 045 212 0010
Legal Consultation Centre:
Tel. 03 3581 1511 (Mon-Fri, 1pm-4pm)
Related Sites:
Citizens Groups supporting the Duty Lawyer system/Tokyo
Japan Bar Federation
(Foundation) Legal Assistance Association
Q6. My Japanese husband died. I have with me a child from my former husband whom I brought with me from the Philippines, and a child from my husband who died. My husband had a Japanese wife before me and there is a child from that marriage. I don't know how much money my husband left, but do I and my children have any claim to inherit his estate?
A6. If your marriage was a legal one, then you and the child from your husband who died are naturally entitled to inherit. However, your child from the previous marriage, who has no blood connection with your deceased husband, has no such inheritance rights. The child your husband had with his previous wife has inheritance rights too.
The inheritee, that is, your deceased husband, is Japanese, so no matter what the nationality of the inheritor, it comes under Japanese civil law. Therefore, you will inherit half of the estate and your child and the child of the previous wife will each inherit equal parts of the remaining half.
1. Order of inheritance
The legal inheritors are broadly divided into blood and marital heirs. The order among blood relatives is first, children, or children's children, in the case of the children dying before inheriting, second, lineal ascendant (parent or other ancestor), third, siblings, or their children. Blood heirs become heirs only after those ahead in the order of inheritance are unable to inherit, or do not exist. Spouses come alongside no 1, 2 and 3 of the above order, and always inherit. In this case the spouse is the spouse at the time of the death of the deceased (inheritee), so the former wife does not have inheritance rights.
a) Spouse (Article 890 of the Civil Code)
b) Blood-line inheritors
(1)- Children of the deceased (inheritee); both birth children and adopted children (Article 887 of the Civil Code) Unborn children in the womb are considered as children already born (Article 886 of the Civil Code)
(2)-Parents of the deceased (inheritee) in the case when the deceased has no children (Art. 889 of the Civil Code)
(3)- Grandparents of the deceased (when there is no one corresponding to (1) and (2))
(4)- Siblings (when there is no one corresponding to (1) and (2))
2. Legal Inheritance Amount (Art 900 Civil Code)
a) Amount inheritable by spouse
- When inheriting along with children, half of the estate
- When inheriting with direct ascendants (parents or grandparents) of the deceased, two thirds of the estate
- When inheriting with siblings of the deceased, three quarters
When the spouse is the sole inheritor, he/she will inherit the entire estate
b) Amount inheritable by children
When there are several children they inherit each equal amounts of the estate. Even where children are married or have adopted parents (unless this is special adoption) the fact that they are offspring of the deceased does not change, and so there is no change to the amount they are entitled to inherit. As for the child of the previous wife and the child of your marriage with the deceased, they will inherit equal parts of the estate.
However, note that children born before marriage or outside marriage will inherit only a half of a child born within the marriage.
c) Direct ascendants will inherit equal parts between them.
d) Siblings will inherit equal parts between them. (However, half-siblings will inherit only half of what full siblings will inherit.)
Note 1: Provisional clause 4 of Article 900 of the Civil Code holds that illegitimate children will inherit a half of what legitimate children will.
In 1994 the Tokyo High Court decided that this was against the Constitution. (Tokyo High Court Decision, 30th November 1994). However, the Supreme Court overturned this and said that the clause was constitutional (5th July 1995, Supreme Court Main Court Decision.)
Note 2: Sometimes, we get this kind of question from foreign women who have married Japanese men of a very different age to them. We can imagine how anxious one must feel marrying a man from another country, and having that man whom one depends on die before one.
It seems that many women cannot bring themselves to consult when it comes to legal questions like inheritance, and just quietly grieve and worry on their own. Also, the parents or siblings of the deceased Japanese husband tend to control everything, and try and get the foreign wife off home to her own country as soon as possible. Letting women know that they should not be treated unfairly no matter that they are foreigners, while being a perfectly obvious thing, contributes much to their feeling of security.
You do not necessarily have to leave the country straight away when your husband dies, when you are in Japan on a spouse or child of Japanese National. Naturally you will need time to sort things out, and we want you to act upon knowledge of the law so that you will not regret anything.
Q7. About applying for the permanent resident's qualification.
A7. Recently we have had more and more enquiries from foreigners about permanent residence.
When you have a permanent residence permit you will no longer have to comply with renewal procedures for staying in Japan, you will have no restrictions on what kind of things you can do while in Japan, and there are many other merits. Especially, when your reasons for staying in Japan are subject to change (by for example divorcing) then the merits are great for taking out permanent residence.
To be given permanent residence you will need to fill certain conditions and pass certain investigations. Regarding time of stay, as a principle, one is expected to have lived continuously in Japan for over 10 years. However this principle is tending now to be relaxed.
For example, according to an announcement by the Immigration Department in 1998, in the case of spouses, children, or specially adopted children of Japanese or permanent residents or special permanent residents (mostly resident Korean and Chinese), they must have resided in Japan for over 3 years after the spouse's marriage. However when the marriage or cohabitation took place overseas then it is enough to have three years passed since the marriage and then one year living in Japan. For spouses, it is necessary to have actually been married and to hold a spouse's residence permit at the time of applying for permanent residence.
Again, in the case of people who hold a permit of permanent residence, they must be people who have permits of permanent residence and have lived in Japan for more than 5 years. For those who have been recognized as refugees, they must have lived in Japan continuously for more than 5 years. For international students or students who after entering the country and finishing education then took up work in Japan, it is enough to have lived in Japan more than 5 years after the change in working permit.
For any of the residence permits, it is necessary to be given the longest possible period of residence qualification at the time of application.
At the time of application it is imperative, at the very least, to have fulfilled the conditions above, and to have papers certifying the status of the applicant, his occupation and income, and documents relating to a guarantor. Each applicant will have his/her situation thoroughly checked, and there are differences between individuals as to whether or not their application will be successful, but it normally takes up to 6 months from application to result.
It's best to consult at your local Foreigners Consultation Desk (Gaikokujin Soudan Madoguchi) or local General Information Centre for Foreigners Residence Matters (Gaikokujin Zairyu Sogo Infomeeshon Sentaa).
Q8. I have been here for 3 years on the Engineer (Gijutsu) status of residence, but the last time I tried to have my visa renewed I was refused on the basis that I was a simple labourer, (Tanjun Rodo) and told to take a status of residence as a temporary visitor(Tankitaizai) in order to get ready to leave the country. What should I do?
A8. As you know, Japanese law does not allow simple labourers apart from Permanent Residents (including foreigners of Japanese descent) and spouses of Japanese people. When the Immigration Department makes a decision on the application for renewal of stay, it follows Clause 3 of Article 21 of the Immigration Law, and bases its decision on the documents provided by the individual applicant. It may also carry out investigations of the individual's situation. Therefore, when you are applying for renewal, you need sufficient documents to show that you are appropriate for the qualification to stay in Japan.
When you went to consult about this, it seems that the Immigration Department had the belief that your work was similar to simple labour and thus refused your renewal. But if your work has a high level of specialization which falls under the description of the technology qualification, then I recommend that you make the application again this time attaching proof of your type of employment which might consist of a time schedule, the distance of your job, photographs, etc, and their translations into Japanese. Such an application might be difficult after your status of residence has been changed to status of residence as a temporary visitor, so you should get the documents quickly and re-apply straight away.
Q9. Do you know about the Japanese Nationality Law?
A9. What is a Japanese person in terms of the law? Is anyone born in Japan considered a Japanese? Is a person born to Japanese parents a Japanese? Are Konishiki and Ramos Japanese?
Nationality and ethnicity are two different things. Nationality is defined by the law of each country (usually called the Nationality Law). The law defines the legal relationship between a person and a country. Most people have a nationality; that is, they are affiliated to one country. Whereas an ethnicity is a group of people who share a common culture, language, religion or history.
Speaking of Japan, in what cases can one acquire Japanese nationality? One is considered to have Japanese nationality when one comes under any of the circumstances below:
1. Either one of the parents is a Japanese national at the time of the child's birth.
2. If the father was dead at the time of the child's birth, but was a Japanese national at the time of his death. (In both 1 and 2, it is necessary for an illegitimate child whose parents are not legally married that the father's recognition of the child be made prior to the child's birth. When the child is born in a foreign country, he/she cannot obtain Japanese nationality unless the Notice of Postponing Nationality Selection (Kokuseki Ryuho Todoke) is made along with the Register of Birth (Shussho Todoke) within three months after his/her birth)
3. When the child is born in Japan but both of the parents are unknown and the child does not have any nationality.
4. In the case of an illegitimate child whose parents are not legally married, he/she can acquire Japanese nationality by making the application before reaching twenty years of age after the parents marry legally and recognize the child as theirs.
5. A foreigner above twenty years old and living in Japan for more than five successive years can naturalise himself/herself by obtaining the permission of the Minister of Justice. If the person has children (under twenty years old) they must also be naturalized in this case. In case of the spouse of a Japanese, the period required to have been living in Japan is 3 consecutive years or more.
If Japanese nationality is obtained under any of the above situations while holding another nationality (in the case of dual nationality) one single nationality must be chosen. If one wants to continue to hold Japanese nationality, a Notice of Selection of Japanese Nationality (Nihon Kokuseki Sentaku Todoke) must be submitted at the Family Registry Section (Koseki Gakari) at the local government office of the village, town or city where the individual is registered. This must be submitted before the age of 22 if one had dual nationality before the age of 20, or else within 2 years if one received dual citizenship after the age of 20. On submitting a Notice of Selection of Japanese Nationality, one is obliged to abjure the other nationality. However, this is an obligation to endeavour to do so, and is not always essential. The loss of the other nationality will depend on the second country.
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