Toward the Supreme Court Appeal

The appellate court judgment handed down on November 2, 2023, at the Tokyo High Court did not recognize our argument that Andrew should be granted a "resident" visa status. Following the initial court judgment, Andrew was granted a "designated activities" visa status during the pending appeal. However, the "designated activities" granted to Andrew are highly disadvantageous when compared to the "Japanese spouse or equivalent" visa status, typically given to opposite-sex couples, as it generally does not allow for employment. Andrew should be granted a stable visa status based on his partnership with Kohei, and the "designated activities" visa with work restrictions is insufficient.

The appellate court acknowledged that the absence of a visa status equivalent to the "Japanese spouse or equivalent" for same-sex partners who have entered into same-sex marriages abroad could raise issues under Article 14 of the Japanese Constitution. Still, it ruled that it has not been established that the reality of their social relations and everyday life, at the time when the non-approval decision was made, is sufficient for the same legal status as marriages between opposite-sex couples. Therefore, the court concluded that not granting the status of "resident" with the same level of protection as the "Japanese spouse or equivalent" was not a violation of Article 14 of the Constitution and not illegal.

We see the idea behind the decision that for same-sex couples, it may just be unfortunate that they do not receive the same level of protection as opposite-sex couples. This is, indeed, discrimination based on sexual orientation, and accepting it would mean that same-sex couples cannot achieve a stable life and residence status in Japan, as is afforded to opposite-sex couples.

In the Supreme Court appeal, we will seek to rectify this and fight for equal treatment.

[Regarding the Use of Donations]

The donations received up to the appellate court were primarily used for requesting expert opinions. We sincerely appreciate your support.

For the Supreme Court appeal, there will be expenses of approximately 120,000 yen for items such as stamp duties (application fees) and postage fees to be paid to the court. To cover these expenses and lawyer fees, we have decided to call for your support once again. We ask for your further assistance and collaboration in expanding the circle of support.

[A Message from the Plaintiffs for the Supreme Court Appeal]

A Message from Kohei

We have come this far thanks to your support. Andrew was granted a "designated activities" visa, but it does not represent true equality. We, and others in our same position, are not seeking any special rights or privileges. We simply want to have the same rights that are available to all Japanese citizens. For this reason, it's important to continue fighting in the Supreme Court. We humbly ask for your continued support.

A Message from Andrew

We just would like to thank everyone so much for their support as we proceed onto the Supreme Court – hoping of course that the Court will not only accept our case for consideration but will also understand the important Constitutional questions around equality that it involves. Recognizing the larger questions in this case is central to what we understand to be its importance: it’s not just about immigration, rather it’s fundamentally about the equal recognition of same sex relationships. And that in turn is about human rights and dignity. Thank you again so much for your support.

Background

To Live Together in the US and in Japan

Andrew, an American citizen, and Kohei, a Japanese citizen, are an international same-sex couple. They were married in the US in 2015. They have now welcomed their beloved dog into their life and are living together as a family in Japan. However, their family life is at risk of being forced to end.

Kohei was born and raised in Japan. After graduating from high school, he studied abroad in the US and met Andrew, and they began living together in 2005. In order to continue to live with Andrew, Kohei obtained an MBA and tried to find a job in the US, but he was unable to do so due to the 2008 financial crisis, and since same-sex marriage was not yet legalized in the US at the time, he had to come back to Japan to find a job. He currently works as a full-time employee at a Japanese company, making use of his accounting knowledge.

Andrew, on the other hand, was born and raised in the US and had a system related position at a university, but he gave up the stable employment to live with Kohei in Japan. He first came to Japan as a student in 2010. After completing his coursework at a Japanese language school, he could not get status of residence to continue to live in Japan, so he returned to the US in 2012. 

In 2014, Andrew incorporated a company in Japan and returned to Japan with the status of residence based on the category of “Investment and Business” (currently renamed as “Business Manager”). However, his company’s business condition deteriorated and he could not renew his status.

By this time, same-sex marriage was legalized in the US, but as their life was already based in Japan, it was not easy for them to return to the US.

*1  A Status of Residence is a status required for those who do not have Japanese citizenship to stay in Japan. It is a legal status under the Immigration Control and Refugee Recognition Act (commonly known as the Immigration Control Act). By obtaining a status of residence that suits one’s purpose, one can stay in Japan for the permitted period of stay.

There are 29 categories for status of residence, which differ in terms of the subjects and contents. They can be broadly divided into two: residence status and activity status.

Residence status is based on status or position, and there are no restrictions on employment. Residence status has four categories: permanent resident, spouse or child of a Japanese citizen, spouse or child of a permanent resident, and long-term resident.

The other is activity status, and it has restrictions on employment. It includes categories that prohibit working in Japan in principle, such as temporary visitor,  student, and dependent. It also includes categories such as “business manager” that allow working in Japan only in certain occupations, which Andrew initially had. Lastly, there is also a “designated activities” category, for which the Minister of Justice specifically designates an activity for each individual to undertake.

Denial of Status of Residence and Lawsuit

Andrew applied to change the category for his status of residence from the one he initially had to the one as a long-term resident multiple times from 2018 to 2019. However, all of his applications were denied. The Immigration Bureau kept giving the same reason for denial: “They are a same-sex couple of a Japanese national and a foreign national.”

In response to the denials by the Immigration Bureau, Andrew and Kohei filed (1) an administrative litigation seeking recognition of Andrew’s status of residence as a long-term resident, and (2) a lawsuit seeking state compensation for damages on the two incurred by the denials.

Andrew and Kohei know several couples who gave up on living together in Japan and moved to other countries where same-sex marriage is legalized. However, the two realize that the issue they are facing is not just about Andrew’s right to stay in Japan as a foreign national but also about Kohei’s right as a Japanese national. They discussed and reached a conclusion where they have to file a lawsuit and change society by speaking up about the injustice of not being able to live with their loved ones, especially for Kohei, in his own country.

▲From the left, Beloved dog Lila, Andrew and Kohei.

What This Lawsuit Challenges

Andrew originally wanted status of residence based on the category of “Spouse or Child of Japanese National.” However, as same-sex marriage is not legalized in Japan, it is difficult for him to obtain the status. Therefore, he is now seeking status of residence as a long-term resident. Those who have familial relationships with Japanese citizens can obtain this status.

International heterosexual couples are granted status of residence based on the category of “Spouse or Child of Japanese National,” whereas international same-sex couples are not. What this lawsuit challenges is that this difference violates the Constitution and the international human rights law.

The District Court has ruled that it is unconstitutional to not grant status of residence at least based on the category of “Designated Activities” for same-sex couples. This was a significant step forward although the court did not rule that it is unconstitutional to not grant status of residence based on the category of “Long-Term Resident.”

However, even after the ruling, the Immigration Bureau has not granted Andrew status of residence based on the category of “Designated Activities.” As a result, Andrew is currently staying in Japan as a temporary visitor, which is an unstable status.

Disadvantages of Not Being Able to Obtain Status of Residence as Long-Term Resident

What are the disadvantages that Andrew and Kohei are facing as a result of Andrew not having status of residence as a long-term resident?

They Cannot Live with Their Loved One as a Family

Andrew is currently staying in Japan as a temporary visitor. However, temporary visitors are not allowed to obtain a resident card, to work, or to sign up for the National Health Insurance, which prevents them from seeing doctors. The period of stay is limited to 90 days, and renewal of status is not guaranteed.

It is highly likely that the two will no longer be able to live together depending on the decision by the Immigration Bureau. With the decision hanging, they are in an extremely precarious situation where they face the possibility of changing the life they have, such as which country they will have to go to, and which job they will have to find.

Many International Same-Sex Couples Face the Same Problems

Andrew and Kohei’s situation is not unique to them. Many other international same-sex couples are struggling with the same problems and facing precarious situations. If they reside in Japan, they are always at risk of not being able to renew their status of residence. As their status of residence is not based on their marriage, their status of residence has to rely on the categories such as  student or working When they finish their studies or when they lose their job, there is no guarantee that they can renew their status of residence.

Hopes of the Plaintiffs

Will they have to leave Japan if the Immigration Bureau does not grant Andrew status of residence as a long-term resident? Even if they have to, where do they go? Andrew has already sacrificed his career in the US to live with Kohei in Japan. If they have to leave Japan, then Kohei has to sacrifice his career in Japan. It is not easy for them, given their age too, to leave the foundations of their lives and careers in Japan that they have cultivated together for the past 13 years.

The two have always had to fight with issues regarding status of residence and had to take many detours. They could not even fulfill their wish to live a peaceful and modest life together, which is a natural human desire. This was all because of the discrimination towards their sexual orientation, through which they have held anger.

Of course, if same-sex marriage is legalized in Japan, issues regarding status of residence will be resolved as well. However, the path to legalize same-sex marriage in Japan seems long. They believe there will be many more couples like them who will suffer.

The issue that international same-sex couples cannot live together as a family in Japan and the issue that same-sex couples cannot marry in Japan should be regarded as two separate problems. As the former should be and can be promptly resolved, they decided to file the lawsuit.

▲They welcomed a dog Lila in 2020 as part of their family.

What the Lawsuit Tries to Achieve

Stable Status of Residence for Same-Sex Couples

Stable status of residence should be granted for same-sex couples, just like heterosexual couples, based on their relationship with their partners.

When two people pledge to spend the rest of their lives together, they become family. There is nothing different about that with same-sex couples. They have the right to live together as a family, and the right is guaranteed by the Constitution and the international human rights law.

Necessity for Early Resolution

Movements and lawsuits that demand legalization of same-sex marriage are currently happening throughout Japan. Same-sex couples would no longer have to worry about status of residence if same-sex marriage is legalized.

However, Andrew and Kohei’s desire cannot wait for the legalization of same-sex marriage. Everyone has the desire to live with a person they love. It is a natural human desire and requires an early resolution. Even without legalization of same-sex marriage, only if the Immigration Burean changes how they treat international same-sex couples and grants Andrew the status of residence as a long-term resident, Andrew and Kohei can live a stable life as a family in Japan. We believe the Immigration Bureau must make the change immediately.

Use of Funds

The primary use of the funds is for the cost of expert written opinions on major legal issues in this lawsuit. We are currently requesting several researchers in various fields for written opinions.

The extra funds will be used for necessary expenses such as stamps, copying, translations, and attorney fees.

The District Court Judgment and the Upcoming Appeal Trial

The judgment from the District Court was practically a win for Andrew. Here are the key points in the judgment. 

• It is not illegal for the Immigration Bureau to deny Long-term Resident status to same-sex couples.

• The “designated activities” status is granted to same-sex couples of foreign nationals who are married outside of Japan if one of them has a valid status of residence in Japan. This status should be granted to same-sex couples of a Japanese national and a foreign national as well, and not granting it violates the intent of Article 14, Paragraph 1 of the Constitution.

• However, the claim for state compensation is not allowed because the Director of the Tokyo Regional Immigration Bureau is not found to be negligent. The legality of execution of the immigration law, which does not recognize “designated activities” status to same-sex couples of a Japanese national and a foreign national, was not disputed, and the Director asked the Commissioner of the Immigration Service Agency for instructions.

Even though the plaintiff’s claim was dismissed in the main text of the judgment, it is significant that the court acknowledged the illegality of not recognizing “designated activities.” However, even after the judgment, the Immigration Bureau did not grant Andrew the residence status of “designated activities,” Kohei and Andrew appealed to the Tokyo High Court. As this lawsuit contains a number of important legal issues, we plan to submit expert written opinions to the High Court.

Message from the Lawyers

Denying Long-term Resident status to Andrew is an unreasonable discrimination based on his sexual orientation, homosexuality, (Article 14 of the Constitution and Article 26 of the Covenant on Civil Liberties). It also violates the rights of Andrew and Kosuke to form and maintain a family life (Article 13 of the Constitution and Articles 17 and 23 of the Covenant on Civil Liberties). 

At the upcoming appeal trial, we are going to ask the High Court to rule that it is illegal to deny Long-term Resident status to Andrew again. At the same time, we will also urge the Japanese government to promptly grant him a stable status of residence.

Defense Team

Masako Suzuki (Tokyo Bar Association)
Yasushi Nagano (Tokyo Bar Association)
Toshimasa Yamashita (Tokyo Bar Association)
Yoshie Yokoyama (Daini Tokyo Bar Association)
Yuki Maruyama (Tokyo Bar Association)
Takako Uesugi (Tokyo Bar Association)
Wataru Takahashi (Tokyo Bar Association)

Lawyers who have worked on LGBT rights issues and lawyers who have worked on residency status issues are working as a team.