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A Letter frorn Tokyo

Werner Menski

Llaving been in Tokyo since early February, I can now embark on a little report of some
I lpractice-related matters that might interest readers of IANL. I rvas appointed to the Tokyo
Universiry ofForeign Studies as a member ofaJapanese team ofscholars who have been watching
the movements of South Asians all over the world for the past twenfy years, resulting in several
publications inJapanese and Engiish. The growing number of South Asians resident inJapan has
giyen rise to some interesting questions which we are further exploring during my stay.
From aJapanese perspective, there is vivid interest in why immigration controls in various
European countries did not manage to provide water-tight exclusionary nlechanisms. It is
understood that much of this has to do with earlier colonial relations, but that is only one aspect,
since family migration, fllowing on early worker migration, is also seen as a major contributor
to growing numbers of foreign residents in the various European countries, North America and
Australia. TheJapanese have realised, during the early 1980s, that vigorous restrictions on foreign
worker migration will in the long run help to prevent, and u'ill at least significantly delay, the
rnushrooming of foreign resident populations in Japan. Hence the notable strictness and
bureaucratic precision with which any rnovement of foreigners is treated in Japan.
Japan still has a very low number offoreigners, and clearly wants to keep it that r,vay. At present,
the economic downturn has meant that there is no really urgent need to import foreign labour, as
there are allegedly enough Japanese to filI most vacancies. This was difterent a few years ago, and
sorne of those early foreign worker pioneers are still inJapan, having either extended their stay in
various ways, or having regularised their legal position through marriage to aJapanese partner.
However, in certain specific areas of employment, the famiiiar pattern today remains that
potentialJapanese takers for some occupations are scarce. So there is a need for imported labour,
which is of course readily available, as the grapevine has it, now especially from China. Quite
different and effectiveiy contradictory views tend to be voiced about whether a Clhinese person
can be detected in a crowd ofJapanese people - the familiar phenomenon of the 'white' migrant
in Britain jusr merging in the melting pot oflocal societies rings a bell. For South Asians inJapan,
such merging is not feasible, since they do stand out, and are always identifiedx'gaijin', the
collective terln for ail foreigners in Japan.
Even business persons r,vho contribute significantly to theJapanese economy are, thus, kept
on social and iegal tenterhooks for decades and are made to feel that they do not really belong.
There appea to be enorrnous discretion amongbureaucrats over whether to grant or withhold
extensions ofpermission to stay in the country. Several south Asians conveyed their concern over
being identified as a law-breaker, be it in tenns of trafirc rules, business regulatiorls, or anything
else that might bring them to official notice. South Asian manual workers report being singled
out by the ever-presenr local Japanese police, despite the fact that those police officers should
know very well that particular foreigners work in their locality. A police officer's response might
well t,e that all South Asians look the same to him, so the execution of his duqv means careful
checking of all persons in this caregory - but then, someone like myself is not treated by the same
officers in the same way. Familiar observations, I suppose.
But ofcial restrictiveness is only one factor that impedes South Asian perrnanent settlement
inJapan. While it is evident that legal insecurity has significant effects on the choices ofsettlement
for te next generation, education seems to piay a key role in this context. Many children ofSouth
Asians and other foreigners growing up inJapan will actually have to leaveJapan to obtain higher

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education abroad, since inJapan all higher education is inJapanese and is not, with few exceptions,
international enough for the perceived needs of diaspora children. Thus, attending an American
or Canadian high school inJapan programmes such young people for a future outsideJapan - so
that South Asian businessmen now find they have to travel to the USA and Canada to visit their
children and grandchildren who have settled there. ,

Amonga different social group of South Asians, one particularissue is still kept at a low-
key level, but is beginning to ring alarm bells inJapan. It is a fact that Pakistani men, in particular,
have systematically used certain rules ofJapanese law to obtain residence permits inJapan through
forrnal marriages to Japanese women. This is not always a marriage of convenience, however,
while there appear to be men who lviil divorce their wife as soon as their residence status inJapan
is secured. In a few cases, it appears that South Asian women have used the same technique, but
the main concern is over Muslim men marrying non-Muslim rvomen, who may then be put under
pressure to convert to Islam, and whose children are beginning to make an appearance as a new
ethnic sub-group inJapan, miniscule as yet, but present nevertheless. Similar developments have
recently been reported from Hong Kong and other major Asian cities, so this is uot peculiar at
all to Japan, but is an issue that is emerging on the horizon.
Among the South Asians living inJapan, there are quite a few recent arrivals in well-paid
jobs in the finance and banking sector, or in computing and international trade. These are
probably short-term migrants, who will move on after a couple of years and have the means
and professional support to make careful choices about residence and employrlent. More
restricted in their freedom of movement are those South Asians who have settled inJapan, but
have tied employment and residence rights linked to certain occupations, mainly in the
restaurant trade. Since I last visitedJapan, in 1988, the number of Indian/Pakistani restaurants
has mushroomed enormously, and ryrany ofthese restaurants clearly depend on imported South
Asian workers with their specialist skills. While it remains possible to import such restaurant
workers to Japan, I find that a system of rotating labour is in place (as was the case in Britain
up to the late 1950s and early 1960s), allowing a man to work inJapan for a couple ofyears and
then to rnove back to the subcontinent, being replaced by an individual preferably from the
same family or group. This seems to work well for people from all kinds of backgrounds,
especially from Eastern India, Bangladesh and Nepal" Among the latter, one finds a significant
number ofwomen working in theJapanese restaurant trade (but not, as far as I can see, in Indian
restaurants) as waitresses. Different networks designed to secure 'key workers' for theJapanese
economy are evidently in place.
One particular category of South Asian people, whose legal concerns have evidently fallen
ofrthe agenda in Britain now, are former residents of Hong Kong. I met several such South Asians,
who after 1,997 found one day that their assumed British nationality was useless and they could
not travel any more as they liked and were used to. Such persons have meanwhile settled
pennanently in South Asia, in Singapore, Thailand, the Philippines or indeedJapan, where the
relative securiry of a long-term residence permit might offer a new home base for such families,
an arrangement which Britain simply refused to allow. Such transnational families cany amazing
histories ofinternational migration and dispersion, and it is evident that immigration lawyers were
not the most helpful advisers they encountered. Rather, self-help, communiry solidariry and often
quite complex international business arrangements secured quasi-permanent residence status for
such families all over Asia. As indicated, inJapan the younger generations follow the pattern of
exiling themselves in due course fromJapan through the process of higher education. Japan has
therefore in effect become a country of transnational transition in such cases. SpecialistJapanese
observers seem quite hrppy with this, since it offers further indications that mass migration from
South Asia toJapan will not happen. For example, if we assume that one of the major growth

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factors ofthe South Asian population in the UK is marriage with overseas partners (an assumption
that must, however, be tested against significant evidence that many British South Asians move
abroad in connection with marriage, too), this is simply not a statisticatrly significant eiement for
theJapanese, and there is no talk of'marriages ofconvenience'except for Pakistanis. In the foreign
enclaves of Japan, however (i.e. the numerous embassies and consulates), the image of 'fake
marriages for the sake of immigration', fed by British press reports about 'arranged' and 'forced'
rnarriages, is prominently displayed on notice boards in offices. One wonders what effects this has
on the mental state of those whose job it is to decide on visa applications.
Since I obtained some unwanted first-hand experience ofhow the recent restrictions ofvisa
regulations under the Schengen regime instantly affected South Asians in Japan, this informai
rqport should serve as a warning to business travellers and others who think they have all their
paperwork in order. Apparently the French imposed a change of visa rules with effect from 19
March 2002, so that a Schengen visa would now be required for all South Asian nationals flying
to France, even if they mereiy transited at a French airport and had confirmed (and even more
or instant) connecting flights out of France, in this case a return flight to the UK.
less
The airline refused to carry the transit passenger without a visa. The visa officers at the French
Embassy in Tokyo were quite apologetic about the sudden rule change, but insisted that France
had a right to protect itself (and Europe) against the growing abuse by South Asians of transit
arrangements. This is not immediately a matter for immigration lawyers, since a trip to the
respective foreign Embassy in Japan or elsewhere should normally solve the probiem, but what
ifthe visa ofcers are not easily persuaded that an individual making a visa application is the person
he or she clairns to be and demand ail kinds of documentation? The cold realiry, it appears, is that
even long-term residence of South Asian passport-holders as third-country nationals in a
European state will now not save such persons from the ne'uv transit visa requirements. The
meaning ofEuropean harmonisation in a foreign embassy inJapan is quite ridiculousiy restricted,
therefore. Nobody is willing to take account of stamps from another European country that
indicate the foreign passport-holder's permanent right to live in the European (Jnion; ali that
coullts in this scenario is the foreign passport. Such superficial treatment ofa complex legal issue,
hence, does not include proper recognition ofthe special legal position and supposed entitlements
of third country nationais from Europe - but thankfully, exercise of the of1icer's discretion may
still mean that such a visa will be given with minimal fuss, and even at no cost to the applicant.
The experience, apart frorn wasting a day in the urban jungle of Tokyo, also confirmed that
airlines are hopelessly underprepared for such visa rule changes. Their counter staffsirnply do not
know what to do and will therefore, in situations of doubt, cause travellers enorrnous anguish,
inconvenience and expense by playing safe and being as restrictive as possible.
Surely, this episode was not a unique experience, but such problems are evidently not a
matter for practising lawyers, as the travelling public will have to sort out the mess there and then,
in transit, so to say. Such new restrictions, however justified for certain categories of persons,
throw a deep shadow of doubt on all that wonderful rhetoric about European harmonisation.
From a vantage point in Tokyo, Europe is not only far away, but also a place that has manifestly
not digested and accepted the long-term presence of South Asian settlers as third country
nationals. Before we criticise the essentially exclusionary treatment of foreigners in Japan, it is
therefore necessary to be reminded that European legal systems maintain significant ambivalences
towards foreigners as well and are by no means simply inclusive.

Werner Menski

NOTE
The author is a Visiting Professor at the Tokyo Universiry of Foreign Studies, Tokyo until September 2002.

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