In this thesis a comprehensive discussion of the current immigration and deportation systems of both Japan and Austria provides the basis for qualitative and quantitative comparisons.
The first section explains the basic methodology, the idea of comparative public law and respective international regimes that influence the alien law in either or both countries.
In the second part the immigration system of both Austria and Japan are explained in considerable detail (introducing only high-profile case law, though) including new legislation introduced in most recent years. The system of residence titles in both countries is discussed with reference to particular group of immigrants such as family members of already residing foreign nationals, work related immigration, short-term and long-term visitors. An overview of the respective organization of the immigration control administration is provided before the last chapter of part two compares the immigration laws of both countries. The quantitative comparison employs, extends and adjusts the Quantitative Index for the Integration of Immigrants by H. Waldrauch (associated also with the work of Prof. U. Davey).
Part three is extensively discusses the system of "termination of stay" in both countries. This also includes the newly introduced (2004) revocation of residence titles (zairyū shikaku no torikeshi) and the departure order (shukkoku meirei) on the Japanese side and the new system of residence bans (Aufenthaltsverbote) etc. on the Austrian side (2005). This part also features (1) detailed case law on both systems (for Japan particularly in regard to the special residence permit), (2) a short explanation of detention facilities and detention related problems, (3) a discussion of problems inherent to each system and ends with a (4) qualitative and (5) quantitative analysis similar to the one provided for the immigration systems.
Table of Contents
1. METHODOLOGICAL AND HISTORICAL ISSUES
1.1. METHODOLOGY
1.1.1. The Approach
1.1.2. Legal Families
1.1.3. Legal Cultures
1.1.4. The Place of Comparative Law
1.1.5. The Language of Comparative Law
1.1.6. The Method of Comparative Public Law
1.1.7. Value Judgment (Werturteil)
1.1.8. Conclusions
1.2. SOCIO-HISTORICAL BACKGROUND
1.2.1. Japan
1.2.2. Austria
1.3. IMMIGRATION, CITIZENSHIP AND STATE-SOVEREIGNTY
1.3.1. Ways to Become a Citizen
1.3.2. Inclusive versus Exclusive Citizenship
1.3.3. Immigration and Nation
2. INTERNATIONAL REGIMES
2.1. THE INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS
2.2. THE CONVENTION ON THE RIGHTS OF THE CHILD
2.3. EC LEGISLATION
2.3.1. Recommendations, Resolutions and Intergovernmental Agreements
2.3.2. The Change to First Pillar Legislation
2.4. THE SCHENGEN SYSTEM
2.4.1. General Remarks
2.4.2. The Regulations in Schengen II
2.4.3. Entry, Short Stays and Movement in the Schengen Area by Non-EU Citizens (Uniform Schengen Visa)
2.4.4. Asylum Matters
2.4.5. Measures to Combat Cross-Border Drug-related Crimes, Police Cooperation and Cooperation among Schengen States on Judicial Matters
2.5. THE EUROPEAN CONVENTION ON HUMAN RIGHTS
2.5.1. Outline and Short Introduction of the Convention
2.5.2. Compliance Mechanism
3. THE JAPANESE IMMIGRATION SYSTEM
3.1. LEGAL SOURCES AND BASIC CONCEPTS
3.1.1. Legal Sources
3.1.2. Basic Concepts of Immigration Control
3.1.2.1. State Discretion = Administrative Discretion?
3.1.2.2. Correct Immigration Control
3.2. IMMIGRATION
3.2.1. Entry and Entry Requirements
3.2.2. Landing
3.2.2.1. Visa
3.2.2.1.1. Pre-visa Deliberation (sash jizen kygi)
3.2.2.1.2. Certificate of Eligibility (zairy shikaku nintei shmeisho)
3.2.2.2. Further Positive Conditions
3.2.2.3. Denial of Landing
3.2.2.4. Passing the Landing Inspection
3.2.2.5. Failing the Landing Inspection
3.2.2.5.1. The Hearing with the Special Inquiry Officer
3.2.2.5.2. Filing an Objection
3.2.2.5.3. Special Landing Permission
3.2.2.5.4. Provisional Landing Permission
3.2.2.6. Special Cases of Landing
3.2.2.7. Reentry (sainykoku)
3.3. RESIDENCE TITLES
3.3.1. Basic Remarks and Concepts
3.3.1.1. Applicability and Adequacy
3.3.1.2. Activity Related or Status Based
3.3.1.3. No Residence Title
3.3.2. Residence Titles
3.3.3. Typical Immigration Cases
3.3.3.1. Economical Immigrants
3.3.3.1.1. Requirements for Work Related Residence Titles and Their Limitations
3.3.3.1.2. Investor, Skilled Labor and Specialist in Humanities
3.3.3.1.2.1. Investor or Business Manager
3.3.3.1.2.2. Skilled Labor
3.3.3.1.2.3. Expert for Humanities or International Employee
3.3.3.2. Family Union
3.3.3.2.1. Spouses
3.3.3.2.1.1. Spouse of a Japanese National (nihonjin no haigsha)
3.3.3.2.1.2. Spouse of a Foreign National
3.3.3.2.2. Children
3.3.3.2.2.1. Children with one Japanese Parent – Acquisition of Japanese Nationality
3.3.3.2.2.2. Children without Japanese Nationality
3.3.3.2.3. Nikkeis – Special Children of the Japanese People
3.3.3.3. Short-term Visitors
3.3.3.4. Long Term Residence Titles
3.3.3.4.1. ‘Long-term’ Residence Title (teij shikaku)
3.3.3.4.2. Permanent Resident (eijsha)
3.3.3.4.3. Special Permanent Resident (tokubetsu eijsha)
3.3.3.4.3.1. Historical Origins
3.3.3.4.3.2. The Special Immigration Control Law
3.3.4. Change (henk) and Renewal (kshin) of Residence Titles
3.3.4.1. Change of Residence Title
3.3.4.2. Renewal of Residence Titles
3.4. ORGANIZATIONAL FRAMEWORK
3.4.1. Immigration Administration – Organizational Structure
3.4.1.1. Immigration Control Section
3.4.1.2. Regional Immigration Control Offices
3.4.1.3. Immigration Control Centers
3.4.2. Functional Structure
4.1. LEGAL SOURCES AND BASIC REMARKS
4.1.1. Legal Sources
4.1.2. Basic Remarks
4.1.2.1. The Federal Principle
4.1.2.2. The Rule of Law Principle
4.2. ENTRY SYSTEM
4.2.1. Entry and Entry Requirements
4.2.1.1. Visas
4.2.1.2. Additional Positive Requirements
4.2.1.3. Denial of Entry
4.2.1.4. Passing and Failing the Border Control
4.2.1.5. Special Cases of Entry
4.2.1.6. Reentry
4.3. RESIDENCE TITLES
4.3.1. Basic Remarks and Concepts
4.3.1.1. Residence and Settlement Permits
4.3.1.2. Quotas
4.3.2. Residence Titles
4.3.2.1. Residence Purposes
4.3.2.2. Requirements
4.3.2.2.1. General Requirements
4.3.2.2.1.1. Application Abroad
4.3.2.2.1.2. Travel Documents
4.3.2.2.1.3. Accommodation
4.3.2.2.1.4. Livelihood
4.3.2.2.1.5. Health Insurance
4.3.2.2.1.6. Health Certificate (Gesundheitszeugnis)
4.3.2.2.1.7. Past Behavior
4.3.2.2.2. Requirements for Settlement Permits – The Integration Agreement
4.3.2.2.2.1. Legislative Process and Basis
4.3.2.2.2.2. Scope
4.3.2.2.2.3. Material and Procedural Provisions
4.3.2.2.2.4. Criticism
4.3.2.2.2.5. European Context
4.3.2.2.2.6. Changes in 2006
4.3.3. Typical Immigration Cases
4.3.3.1. Activity Related
4.3.3.1.1. EEA Nationals
4.3.3.1.1.1. EU-Enlargement
4.3.3.1.1.2. Family Members of EEA Nationals
4.3.3.1.1.3. Swiss Nationals
4.3.3.1.2. Unskilled Workers
4.3.3.1.3. Trainees and Volunteers
4.3.3.1.4. Skilled Workers – Key-Personnel
4.3.3.1.5. Self-Employment
4.3.3.2. Family Reunification
4.3.3.2.1. Spouses
4.3.3.2.1.1. Marriage Law
4.3.3.2.1.2. Residence Regime for Spouses
4.3.3.2.2. Children
4.3.3.2.2.1. Children of Austrian Nationals
4.3.3.2.2.2. Children of Foreign Nationals
4.3.3.2.3. Other Relatives
4.3.3.3. Short-Term Visitors
4.3.3.4. Long Term Settlement
4.3.4. Change and Renewal of Residence Titles
4.3.4.1. Change of Residence Titles
4.3.4.1.1. Same Kind of Residence Title
4.3.4.1.2. Different Kinds of Residence Titles
4.3.4.2. Renewal of Residence Titles
4.4. ORGANIZATIONAL FRAMEWORK
4.4.1. Jurisdiction over the Subject.
4.4.2. Local Jurisdiction
4.4.3. Immigration Administration – Organizational Structure
4.4.3.1. The Section inside the Ministry
4.4.3.2. Public Security Directorates
4.4.3.3. Federal Police Offices and District Administrative Authorities
4.4.4. Examples for Administrative Processing
4.4.4.1. Residence Permit
4.4.4.2. Settlement Permit
5. THE JAPANESE AND AUSTRIAN IMMIGRATION SYSTEMS - COMPARISON AND INTERPRETATION
5.1. QUALITATIVE COMPARISON
5.1.1. Administrative Decision Making
5.1.1.1. The Issue of General Decrees
5.1.1.2. Other Regulations of General Nature
5.1.2. Visa System
5.1.3. Denial of Entry
5.1.4. Preferential Treatment
5.1.4.1. Special Preferential Treatment
5.1.4.2. Preferential Treatment
5.1.5. Skilled and Unskilled Labor
5.1.6. Temporary and Long Term Residence
5.1.6.1. First-step Long Term Residence Titles
5.1.6.2. Second-step Long Term Residence Titles
5.1.7. Quantitative Immigration Control
5.1.8. Immigration and Integration
5.1.9. Organizational Differences
5.2. QUANTITATIVE COMPARISON
5.2.1. Methodological Background
5.2.1.1. Included Immigrants
5.2.1.2. Basic Assumptions
5.2.1.3. Index Building
5.2.1.3.1. Indicators
5.2.1.3.2. Weights
5.2.3. Formulating the Indicators
5.2.3.1. Access Requirements
5.2.3.2. Restrictions
5.2.4. Residence of First Generation Immigrant
5.2.4.1. Overview on Indicators and Weights
5.2.4.2. Access to Additional Titles (or Renewal) and to the Best Title
5.2.4.3. Restrictions on the First, Renewed and Best Residence Title
5.2.4.4. Integrating the Results
5.2.5. Family Reunification
5.2.5.1. Anchor Person is a Foreigner
5.2.5.1.1. Indicator Composition
5.2.5.1.2. Family Reunification for Spouses of Anchor Aliens
5.2.5.1.3 Family Reunification with Minor Children of Anchor Aliens
5.2.5.1.4. Family Reunification with Other Family Members of Anchor Aliens
5.2.5.1.5. Integration of Results for Family Reunification with Anchor Aliens
5.2.5.2. Anchor Person is a Host Country’s National
5.2.5.2.1. Indicator Composition
5.2.5.2.2. Family Reunification for Spouses of Nationals of the Host Country
5.2.5.2.3. Family Reunification with Minor Children of the Host Countries’ Nationals
5.2.5.2.4. Family Reunification with Other Family Relatives of the Host Countries’ Nationals
5.2.5.2.5. Integration of Results for Family Reunification with Nationals of the Host Country
5.2.6. Concluding Remarks
6. THE TERMINATION OF STAY
6.1. INTRODUCTION, ORGANIZATION AND TERMINOLOGY
6.1.1. Introduction
6.1.2. Terminology
7. THE TERMINATION OF STAY IN THE JAPANESE IMMIGRATION CONTROL SYSTEM
7.1. REASONS FOR THE TERMINATION OF STAY
7.1.1. Reasons for Revoking a Residence Title
7.1.2. Reasons for a Departure Order
7.1.2.1. Overstaying a Designated Period
7.1.2.2. Additional Conditions
7.1.3. Reasons for Deportation Orders
7.1.3.1. Violation of Entry Procedures/Requirements
7.1.3.2. Unlawful Overstay
7.1.3.3. Forged Documents
7.1.3.4. Public and Social Order
7.1.3.4.1. Allowed Political Activities
7.1.3.5. Unlawful Commercial/Labor Activities
7.1.3.6. Deviations
7.1.4. Deportation Measures and Entry Prohibitions
7.2. PROCEDURES FOR THE TERMINATION OF STAY
7.2.1. Procedure for the Revocation of Residence Title
7.2.2. Procedure for the Departure Order
7.2.3. Procedure for the Deportation of Aliens
7.2.3.1. Start of the Deportation Procedure
7.2.3.2. Investigation of Violations (ihan chsa)
7.2.3.3. Examination by the Immigration Inspector (nykoku shinsakan no shinsa)
7.2.3.4. The Hearing (kt shinri)
7.2.3.4.1. The Right to a Translator?
7.2.3.4.2. The Problem of Discretion
7.2.3.5. Protest Application (igi no mshide)
7.2.3.5.1. Protest Evaluation
7.2.3.5.2. Special Residence Permit
7.2.3.6. Special Permanent Residents
7.2.3.6.3. Security from Deportation?
7.3. SPECIAL RESIDENCE PERMIT
7.3.1. The Administration’s Perspective
7.3.1.1. Successful Applications
7.3.1.2. Experiences with Special Residence Permits
7.3.1.3. Appeals to the Court and the Suspension of Execution
7.3.2. Results from the Judicial Review Process
7.3.2.1. The Point of Departure
7.3.2.2. Humanitarian and Justice Conceptions
7.3.2.3. False Recognition of Facts or General Notions of Society
7.3.2.4. Combining the Two Above Standards
7.3.2.5. The “Equality Principle” and the “Proportionality Principle”
7.3.3. The Academic Discussion
7.3.3.1. Freedom of Residency
7.3.3.2. The International Civil Rights Covenant
7.3.3.2.1. Freedom of Residency
7.3.3.2.2. Respect for Private Life
7.3.3.2.3. Right to Marriage and Family
7.3.3.3. The Convention on the Rights of the Child
7.4. DETENTION
7.4.1. Basic Forms of Detention
7.4.1.1. Detention for the Purpose of Investigation
7.4.1.2. Detention for the Execution of the Deportation Order
7.4.2. Inherent Problems of the Detention System
7.4.2.1. Length of Detention and Provisional Release
7.4.2.2. The Competence of the Supervising Immigration Inspector
7.4.2.3. The Principle of Minimal Invasiveness in Administrative Procedures
7.4.3. Problems During the Detention
7.4.3.1. The Treatment of Detainees
7.4.3.2. Legal Safeguards During the Detention
7.5. RECENT DEVELOPMENTS AND IMPORTANT ISSUES
7.5.1. The Special Residence Permit
7.5.1.1. The Nature of the Special Residence Permit
7.5.1.2. Beneficiaries of Special Residence Permits
7.5.1.3. Jurisdictional Changes
7.5.1.4. Suggestions
7.5.2. The New Measures – The Revocation of Residence Titles and the Departure Order
7.5.2.1. The Revocation of Residence Titles
7.5.2.2. The Departure Order
7.5.3. Crackdowns on Illegal Workers
7.5.4. Procedural Rights
8. THE TERMINATION OF STAY IN THE AUSTRIAN IMMIGRATION CONTROL SYSTEM
8.1. REASONS FOR THE TERMINATION OF STAY
8.1.1. The Invalidation of Unlimited Residence Titles
8.1.2. The Re-transferal (Zurückschiebung)
8.1.3. The Rejection (Zurückweisung)
8.1.4. Prohibition of Re-transferal and Rejection
8.1.5. The Expulsion Order (Ausweisung)
8.1.5.1. Aliens without Residence Titles
8.1.5.1.1. Unlawful Stay
8.1.5.1.2. No Residence Title
8.1.5.2. Aliens with Residence Titles
8.1.6. The Residence Ban (Aufenthaltsverbot)
8.1.7. Restrictions on the Issue of Expulsions and Residence Bans
8.1.7.1. The Alien’s Interests and the Need for Balancing
8.1.7.2. The Consolidation of Residence
8.2. PROCEDURES FOR THE TERMINATION OF STAY
8.2.1. The Expulsion Order
8.2.1.1. The Administrative Proceedings
8.2.1.1.1. Adversary Proceedings
8.2.1.1.2. Application to Determine the Unlawfulness of an Expulsion Order
8.2.1.1.3. Submission of Appeals
8.2.1.1.4. The Pre-appellation Decision (Vorabentscheidung)
8.2.1.1.5. The Appeal
8.2.1.2. Legal Control of the Administration
8.2.1.2.1. Suspensive Effects
8.2.1.2.2. The Administrative Court
8.2.1.2.3. The Constitutional Court
8.2.1.2.4. Short Introduction into Constitutionally Guaranteed Rights in the Austrian Legal System
8.2.1.2.5. Comment on the Jurisdictional Demarcation between Constitutional and Administrative Court
8.2.1.2.6. The European Court of Human Rights
8.2.2. The Residence Ban
8.2.3. Re-transferal
8.2.3.1. The Independent Administrative Tribunal (IAT) – Basic Remarks
8.2.3.2. The Administrative Proceedings
8.2.3.2.1. Act of Immediate Power of Command and Coercion
8.2.3.2.2. Art. 57 AA Procedure
8.2.3.2.3. Independent Administrative Tribunal
8.2.3.2.4. Rejections and the Airport Scenario
8.2.3.3. Legal Control of the Administration
8.3. CASE LAW
8.3.1. Case Law concerning Residence Bans and Expulsion Orders
8.3.1.1. Remarks on the Jurisdiction
8.3.1.2. Degree of Integration
8.3.1.2.1. The Appropriate Length
8.3.1.2.2. Relations and Integration
8.3.1.2.3. Integration versus Deviation
8.3.1.3. Legal Minors and Youths
8.3.1.4. The Need for Medical Care
8.3.1.5. The Use of Discretion
8.3.1.5.1. Principal Remarks
8.3.1.5.2. The Obligation to take Changes into Account
8.3.1.6. The Illegal Entry/Stay
8.3.1.7. Lacking Means
8.3.1.8. Fake Marriages
8.3.1.9. Non-refoulement Obligation
8.3.1.10. Procedural Concerns
8.3.1.10.1. Deadlines
8.3.1.10.2. Suspensive effects
8.3.1.10.3. Proceedings at the Administrative Office
8.3.2. Case Law concerning Rejection and Re-transferal
8.3.2.1. Rulings Concerning Border Control
8.3.2.1.1. Reasons for Rejection at the Border
8.3.2.1.2. The Airport Scenario
8.3.2.2. Lawfulness of Rejection and Re-transferal
8.3.3. ECHR Case Law
8.3.3.1. The Prohibition of Torture (Art. 3)
8.3.3.1.1. Character of Article 3
8.3.3.1.2. The Threshold of Severity Test
8.3.3.1.3. Sorabjee vs. UK and D. vs. UK
8.3.3.2. The Prohibition of Collective Expulsion
8.3.3.2.1. Character of Article Four of the Fourth Additional Protocol
8.3.3.2.2. Case Law
8.3.3.3. The Right to Respect for Family and Private Life
8.3.3.3.1. Character of Article Eight
8.3.3.3.2. The Article Eight Test
8.3.3.3.3. Case Law
8.3.3.3.4. Influences on the Austrian Deportation System
8.3.3.4.1. General Remarks
8.3.3.4.2. Specific Influences
8.4. DETENTION
8.4.1. Forms of Detention
8.4.1.1. Arrest (Festnahme)
8.4.1.2. Deportation Detention (Schubhaft)
8.4.1.3. Alternative Measures
8.4.1.3.1. General Remarks
8.4.1.3.2. Alternative Measures and Minors
8.4.1.3.3. Corroboration with Public Agencies
8.4.2. Problems during Detention
8.4.2.1. Prompt Release
8.4.2.2. Treatment in Detention
8.4.2.3. Lawful Detention
8.5. DEPORTATION (ABSCHIEBUNG)
8.5.1. Deferral of Enforcement
8.5.2. Delay of Deportation (Abschiebungsaufschub)
8.5.2.1. Factual Impossibility
8.5.2.2. Unlawful Character of Deportation
8.6. RECENT DEVELOPMENTS AND IMPORTANT ISSUES
8.6.1. Legal Safeguards in Re-transferals and Rejections
8.6.2. Failed Integration and Deportation
8.6.3. Deportation and the Schengen Area
8.6.4. The Deportation of Minors
8.6.5. The Invalidation of Residence Titles
8.6.6. Extending Deportation Reasons
8.6.7. Marriage, Adoption and Deportation
9. THE TERMINATION OF STAY – COMPARATIVE ANALYSIS OF JAPAN AND AUSTRIA
9.1. QUALITATIVE COMPARISON
9.1.1. Measures to Terminate the Stay of Aliens
9.1.1.1. Revocation of Residence Titles
9.1.1.2. Departure Order = Expulsion Order?
9.1.1.3. Deportation Order = Residence Ban?
9.1.1.4. No Need for Re-transferals?
9.1.1.5. Conclusions
9.1.2. Reasons for the Termination of Stay
9.1.2.1. Illegal Entry, Illegal Residence and Illegal Activities
9.1.2.2. Deviations
9.1.2.3. Economical Reasons
9.1.2.4. Public Order and National Security
9.1.2.5. Special Issue – Fake Marriages
9.1.2.6. Conclusions
9.1.3. Differences in Procedures and Procedural Rights
9.1.3.1. Right of Access to Information
9.1.3.2. Right to Submit Information
9.1.3.3. Right to a Translator
9.1.3.4. Right to Effective Administrative Remedies
9.1.3.5. Conclusions
9.1.4. Considering the Interests of Aliens
9.1.4.1. The Consolidation of Residence
9.1.4.2. The Regard for Family Life
9.1.4.3. Humanitarian Cases
9.1.4.4. The Interests of Children
9.1.4.5. Conclusions
9.1.5. Detention and Factual Deportation
9.1.5.1. Detention
9.1.5.2. Factual Deportation
9.2. QUANTITATIVE COMPARISON
9.2.1. Loss of Residence Status of First Generation Immigrants
9.2.1.1. Indicators
9.2.1.2. Overview on Indicators and Weights
9.2.1.3. Comparison between Japan and Austria regarding Termination of Stay Conditions
9.2.1.3.1. Termination of the First Residence Title of First Generation Immigrants
9.2.1.3.2. Termination of Additional Residence Titles of First Generation Immigrants
9.2.1.3.3. Termination of the Best Residence Titles of First Generation Immigrants
9.2.1.3.4. Integrating the Results
9.2.2. Loss of Residence Status of Foreign Spouses
9.2.2.1. Loss of Residence Status of Spouses of Foreign Anchor Aliens
9.2.2.1.1. Indicators
9.2.2.1.2. Overview on Weights and Indicators
9.2.2.1.3. Conditions for the Termination of Stay for the First Residence Title
9.2.2.1.4. Conditions for the Termination of Stay for the Best Residence Title
9.2.2.1.5. Conditions for the Termination of Stay for the Title in the Spouse’s Own Name
9.2.2.1.6. Integrating the Results
9.2.2.2. Loss of Residence Status of Spouses of the Home Country’s Nationals
9.2.2.2.1. Indicators and Overview on Indicators and Weights
9.2.2.2.2. Conditions for the Termination of Stay for the First Residence Title
9.2.2.2.3. Conditions for the Termination of the Best Residence Title
9.2.2.2.4. Conditions for the Termination of the Spouse’s Own Residence Title
9.2.2.2.5. Integrating the Results
9.2.3. Loss of Residence Status of Children with Foreign Nationality
9.2.3.1. Children who Follow the Anchor Alien to the Host Country
9.2.3.1.1. Indicators and Overview
9.2.3.1.2. Termination of the First Residence Title of Children who Followed their Anchor Alien to the Host Country
9.2.3.1.3. Termination of the Best Residence Title of Children who Followed their Anchor Alien to the Host Country
9.2.3.1.4. Termination of the Residence Title in the Own Name of Children who Followed their Anchor Alien to the Host Country
9.2.3.1.5. Integrating the Results
9.2.3.2. Children who are Born to Anchor Aliens in the Host Country
9.2.3.2.1. Indicators and Overview
9.2.3.2.2. Termination of the First Residence Title of Children Born in the Host Country
9.2.3.2.3. Termination of the Best Residence Title of Children Born in the Host Country
9.2.3.2.4. Termination of the Residence Title in the Own Name of Children Born in the Host Country
9.2.3.2.5. Integrating the Results
9.2.4. Conclusions and Results from the Quantitative Analyses
Research Objective and Topics
This study aims to provide a comparative analysis of the deportation systems of Japan and Austria. The primary objective is to determine under what circumstances foreign residents turn into unwelcome aliens and how they are forced to leave the host society, exploring the methodological approaches and legal frameworks in both countries.
- Comparison of methodological approaches to immigration and deportation control.
- Detailed reports on the immigration and deportation systems of Japan and Austria.
- Qualitative and quantitative analysis of the residential security of immigrants.
- Examination of legal remedies against administrative decisions in deportation cases.
- Discussion of recent legislative developments and their impact on immigration and deportation policy.
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1.1. Methodology
Comparative law as an academic science is a relatively young discipline that evolved over the last two centuries mainly in Western Europe before it was gradually accepted also in other countries outside Europe. Originally, continental Europe knew Roman law as the essential source of law. Due to the prominent position occupied by Roman law among the legal elites of those days, continental Europe had a uniform way of legal thinking, although regional legal components mixed with legal institutions from Roman law. However, the codification process in the eighteenth century fixed the existing differences in form of codes and national pride prevented learning from the legal systems of other countries. Thus, the study of differences among those codes began. Notwithstanding its short history as an academic discipline, the roots of comparative law reach much further back in time and include works of the glossators and reflections on canonical law. As an academic discipline comparative law possesses its own methodology and its own field, although the separation from other disciplines such as international law and international private law is not always a simple one.
Summary of Chapters
1. METHODOLOGICAL AND HISTORICAL ISSUES: This chapter introduces the methodology of comparative law, including functional approaches and the importance of socio-historical contexts, and provides a historical overview of Japan and Austria.
2. INTERNATIONAL REGIMES: This chapter reviews key international regimes, such as the ICCPR, the Convention on the Rights of the Child, and the Schengen system, which influence the deportation practices in both countries.
3. THE JAPANESE IMMIGRATION SYSTEM: This chapter details the Japanese immigration control system, including legal sources, entry requirements, and the various available residence titles.
4. THE AUSTRIAN IMMIGRATION SYSTEM: This chapter provides an overview of the Austrian system, comparing its legal framework, entry processes, and residence permits with the Japanese counterpart.
5. THE JAPANESE AND AUSTRIAN IMMIGRATION SYSTEMS - COMPARISON AND INTERPRETATION: This chapter conducts a qualitative and quantitative comparison of the immigration systems of Japan and Austria, focusing on administrative decision-making and immigrant friendliness.
6. THE TERMINATION OF STAY: This chapter serves as an introduction to the deportation systems, covering definitions and the general organization of termination procedures.
7. THE TERMINATION OF STAY IN THE JAPANESE IMMIGRATION CONTROL SYSTEM: This chapter offers an in-depth look at Japanese deportation reasons, procedures, detention, and the role of special residence permits.
8. THE TERMINATION OF STAY IN THE AUSTRIAN IMMIGRATION CONTROL SYSTEM: This chapter examines the Austrian deportation system, focusing on reasons for termination, administrative procedures, and legal safeguards.
9. THE TERMINATION OF STAY – COMPARATIVE ANALYSIS OF JAPAN AND AUSTRIA: This final chapter provides a qualitative and quantitative comparison of the deportation systems of Japan and Austria, summarizing key findings and suggesting potential improvements.
Keywords
Immigration, Deportation, Japan, Austria, Comparative Law, Residence Titles, Deportation Order, Expulsion Order, Human Rights, Administrative Discretion, Integration Agreement, Citizenship, Detention, Legal Remedies, Schengen System
Frequently Asked Questions
What is the primary focus of this work?
The work provides a detailed comparative analysis of the deportation systems in Japan and Austria, examining how both countries terminate the stay of foreign residents.
What are the central themes of the research?
Key themes include the legal and administrative procedures for deportation, the impact of international human rights conventions, the role of judicial review, and the concept of 'immigrant friendliness'.
What is the primary research goal?
The study aims to determine the circumstances under which foreign residents are deemed unwelcome and to understand the legal and administrative mechanisms used to remove them from the host society.
Which scientific methods are employed?
The author uses both qualitative analysis (textual analysis of laws and case law) and quantitative analysis (based on an immigrant friendliness index) to compare the two systems.
What does the main part of the study cover?
The main part covers the immigration systems, the legal grounds for deportation, procedural rights of aliens, the role of detention, and comparative analyses of how both countries handle the termination of stay.
Which keywords characterize the work?
Key terms include immigration control, deportation, residence titles, comparative law, human rights, administrative discretion, and residential security.
How does the Japanese system handle the "Special Residence Permit"?
The permit is treated as a measure of grace subject to the wide discretion of the Justice Minister, though courts have increasingly required that such decisions align with humanitarian and justice standards.
What is the "Integration Agreement" in the Austrian context?
It is a mandatory contract between the state and an immigrant, requiring the immigrant to attend language and culture classes; failure to comply can lead to the termination of residence rights.
How do Japan and Austria differ in their handling of illegal overstayers?
Japan has introduced a "departure order" system for voluntary departure to avoid lengthy deportation procedures, whereas Austria uses a more formal system of expulsion orders and residence bans.
What is the role of the European Court of Human Rights in this study?
The ECHR provides a significant legal framework, especially for Austria, regarding the balancing of an individual's right to family and private life against the public interest in effective immigration control.
- Quote paper
- Arnold Ackerer (Author), 2006, The termination of stay of aliens, Munich, GRIN Verlag, https://www.grin.com/document/78677
