You are currently browsing the category archive for the 'Uncategorized' category.
Imelda (not her real name[1]) has myoma in her left uterus. It has gotten so serious, the doctor said, it could become cancer if she is not operated upon as soon as possible. The problem, however, is that she needs 1.2 million yen for the operation, a huge amount which she can’t afford to raise with her salary.
That’s because she is a Filipino with no residence status in Japan and no health insurance coverage. Despite having worked in a packing company in Tokyo continuously for five years, she has only earned a fraction of the medical costs she’s required to raise. Moreover, since she has fallen ill, she’s currently unable to work in her usual job at a packing company which involves a lot of physical exertion. She turned to baby-sitting for her friends’ children from which she earns a very meager amount of about 30,000 yen a month.
At any time, she could be deported by immigration authorities; hence, she could be sent home seriously ill. In fact, the very doctor she consulted offered to simply give her a medical certificate and advised her to come home to the Philippines. To Imelda, these possibilities (to obtain an operation in Japan at the rate of 1.2 million yen, or to be sent back home seriously ill) are just as bad. In desperation, she might simply ignore her medical condition (which she has done for a year since her myoma was detected), try to continue earning, and expend herself to death.
This paper is a preliminary exploration of the right to health of undocumented migrant workers in Japan. It is a concrete problem-solving exercise in which the author attempts to interrogate from the viewpoint of human rights law the options under existing Japanese law and policies for Imelda and other undocumented migrant workers. I will argue below that Japan’s restrictive migration policies undermine adherence to the universal human right to health by fostering lack of access to health resources among an underclass of migrant workers as a tool of migration control.
How do you save the life of a person who has “no right to be in Japan”? Unions and migrant support NGOs in Japan are confronted daily with this practical problem. As they have discovered, I will suggest that the key to solving this problem lies in being clear about who has the responsibility to respect the right to health of migrant workers.
I use the term “undocumented” with much hesitation because, in fact, the existence of undocumented migrant workers is officially documented by the national and local governments alike. As of January 1, 2005, the Immigration Control Bureau estimates that there were 207,299 visa overstayers. This data covers only foreigners who have gone through alien registration[2] after landing in Japan. The Ministry of Justice (p.4) and Ijuren (SMJ Proposals, p. 9) believe that an additional 30,000 people will have to be added to the figure to account for those who did not land in Japan in the regular manner, such as those “smuggled in” on boats. The use of the term “migrant worker” also invites controversy as some people continue to deny that Japan has migrant workers. However, it is undeniable fact that foreigners are entering Japan to work here for many years, with an increasing number of them marrying and raising children here. (Roberts, p. 277; see n. 6 at p. 296)
Creating a Supply of Undocumented Migrant Workers: Globalization of Survival
Philippine labor migration to Japan will have to be understood in the larger context of economic globalization. Over time, intensified competition from foreign industries due to increased mobility of goods has led to the further contraction of Philippine industries. Massive doses of structural adjustment policies, privatization and deregulation are speeding up the loss of productive capacities in the Philippines as highly indebted state companies and public utilities (like the electrical power industry, the water supply system, etc.) are divided up into smaller units to be sold to domestic and foreign corporations. The competition to attract foreign investments has also become fiercer with increased capital mobility. Globalization forces third world governments into a race to the bottom against each other with the resultant rollback on wages, labor, human rights and environmental protection for third world peoples; yet, foreign direct investment flows are still largely confined within industrialized countries and China.
In this context, some third world governments are discovering that exporting labor is a more workable proposition for staying afloat than developing their industrial capacities to compete with first world industries. Again, the Philippines is a classic example. Swamped with skilled human resources it cannot employ at home, the Philippines is exporting workers to a host of foreign countries that need them: nurses to the United States and the United Kingdom; seafarers to the world’s merchant marine; caregivers to Canada; construction workers to the Middle East; and until recently, entertainers to Japan. Foreign remittances from overseas Filipino workers (OFWs) are buoying up the Philippine economy, prompting official acknowledgment of OFWs as “bagong bayani” (new heroes of the land).
At the individual level, global migration is being experienced as a survival strategy. Faced with chronic joblessness, the world’s poor are turning to global survival circuits that allow them to move to other countries where jobs and opportunities may await them. As theorized by Saskia Sassen, there are various kinds of survival circuits ranging from the formal to the informal (which Sassen calls “alternative survival circuits”). The formal one involves state agencies (e.g., the Philippine Overseas Employment Agency which licenses and regulates recruiters for overseas jobs) and formal processes and procedures (e.g., state labor-export policies; bilateral treaties with host states). The informal ones may involve a network of contacts and brokers who may be petty criminals and increasingly, international criminal syndicates, as in international human trafficking for prostitution or sweatshops in global cities. Mixed types (involving both state agencies and criminals; and formal as well as informal processes and procedures) also exist as documented by Rhacel Parreñas’ study of Filipina entertainers in Japan.[3]
Since the introduction in the 1980s of the “entertainers’ visa”, Japan has become a destination country for migrant Filipino women workers. Japan also currently seeks to fill in the growing need for caregivers for the elderly by importing them from neighboring Indonesia. Beyond these limited official channels for labor migration, Japan maintains a closed-door policy.[4] Hence, Japan (like other industrialized countries) promotes a selective form of economic globalization in which the mobility of goods and capital are approved of while hindering the mobility of labor.
In the individual level, restrictive migration policies are experienced as the constriction in opportunities within the formal survival circuits. Ironically, this may have the effect of turning workers to greater dependence on informal or alternative survival circuits. For example, as Parreñas argues, Japan’s drastic reduction of the number of “entertainers’ visas” and tighter regulations for obtaining the same as a result of the Action Plan of Measures Against Trafficking in Persons December 2004 could aggravate the condition of debt bondage that women working in bars have towards promoters and bar owners.
The Denial of Access to Health Resources as a Migration Control Tool
What I call the clash over undocumented migrant workers’ health can be seen in the opposing positions of the Japanese government based on its restrictive migration policy, on the one hand, and migrant support NGOs and unions based on the principle that access to health is a universally guaranteed right under international human rights and labor laws.
The Japanese government maintains that the very presence of undocumented migrant workers in Japan is illegal. The government also calls such workers as “illegally staying foreign nationals”[5], or worse, “illegal foreign residents”[6]. This gives the impression that these workers are criminals, or worse, non-persons with no rights whatsoever in Japan. They are persons who “should not exist” or have “no right to be in Japan in the first place”.
As a logical consequence, access to health resources (affordable medical services and medicines) such as is possible with health insurance coverage[7] is extremely limited. This is intentional government policy and not an accidental occurrence. SMJ charges that “the government limits access by foreign nationals or undocumented migrants to certain area(s) of healthcare and social security services” (p.74) and that the Ministry of Health and Welfare follows a “policy of not giving (undocumented) foreign nationals access to healthcare”.
For example, the Ministry of Health and Welfare since 1990 has issued instructions to limit the eligibility for National Health Insurance only to those who have permits to reside in Japan for at least one year. (See, Notice of Insurance 41 by the Chief of the National Insurance, Ministry of Health and Welfare, March 31, 1992.) In June 8, 2004, the Ministry of Health and Welfare made a more straightforward announcement explicitly excluding all undocumented foreign nationals from the National Health Insurance system. (Announcement 237, Ministry of Health, Welfare and Labor, June 8, 2004) (SMJ Proposals, p. 75)
Similarly, the Social Insurance Agency interprets the Health Insurance Law in such a way as to exclude undocumented migrant workers: “those without work permit are not constantly employed (thus, ineligible for health insurance)”. (SMJ Proposals, p. 75)
A member of the government’s research group verbalizes some of the justifications for these policies: “Short-term residents are allowed to work only on a limited basis. Thus, they are not expected to live independent lives. Living independently is a pre-requisite for social welfare, thus short-term residents do not meet the prerequisite,” and “Undocumented aliens are not permitted to live in Japan at all.” (See, Ohkawa Akihiro, “Foreign Residents and Social Security and Welfare,” in The Choice to the Multi-Cultural Society, NIRA Citizenship Research Group, 2001. Italics and underscoring supplied.) (SMJ Proposals, p. 75) As the last quoted pronouncement shows, such justifications involve the underlying belief that the permission to reside in Japan also determines whether or not they shall enjoy access to health resources. Health, like residence in Japan, becomes a matter of government permission, not of right. “No right to reside” has been dangerously equivocated with “no right to live a healthy life” and even to “no right to exist”.
In dealings with civil society organizations, the government has verbalized its arguments against respecting undocumented migrant workers’ entitlement to health insurance. Ijuren summarizes the government’s arguments as follows:
(1) “If social security services were provided to undocumented migrants (without permit to work), it would be unfair to documented migrants (with permit to work).”
(2) “The government does not want to allow overstaying or facilitate illegal working. Neither does the government want to promote entry into the country for the purpose of receiving free medical treatments.” (SMJ Proposals, p. 76)
These arguments are specious and rely on false premises. In the first place, the right to health does not depend on the legal permission to work. Social security and a healthy life have the status of rights that pertain to individuals as a matter of their human rights. Even if persons who have no permission to work are classed along with criminals (which they are not), clearly they still have the right to health as even criminals have the right to health. No injustice accrues since everyone is simply extended his/her rights as a human being.
In the second place, access to health resources is never completely free as premiums have to be paid to the relevant insurance systems. If undocumented migrant workers were to be covered by health insurance, the accompanying cost which will have to be shouldered partly by the employers will also have the counteracting effect of discouraging employers from taking advantage of undocumented migrant workers. Thus, the economics of the present policy does not appear to be as clear-cut as the government makes it appear. Moreover, the government’s current policy appears one-sided against workers who overstay their visas, and in favor of employers who take advantage of the lower cost of employing uninsured workers.
In contrast to the government position, some unions and migrant support NGOs advocate an approach based on the legal obligations of Japan under international human rights treaties of which it is a signatory, including the International Covenant on Economic, Social, and Cultural Rights (ICESCR) and the ILO Convention concerning Minimum Standards of Social Security.
The human right to heath is defined in Article 12.1 of the ICESCR as “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”.[8] As a human right, the right to health is guaranteed to everyone without discrimination. Also, compliance with the law is measured against the “highest attainable standard” in a society. This refers to the available resources in a society, so that states with more health resources are naturally held to a higher standard than less developed states.
In Article 12.2 of the ICESCR, by way of illustration, certain steps are prescribed for states to undertake to realize the right to health. Thus:
“2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:
“(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy development of the child;
“(b) The improvement of all aspects of environmental and industrial hygiene;
“(c) The prevention, treatment and control of epidemic, endemic, occupational and other diseases;
“(d) The creation of conditions which would assure to all medical service and medical attention in the event of sickness.”
In the light of these clear textual sources, it appears that the position of the Japanese government to exclude undocumented migrant workers from the coverage of health insurance is indefensible under international law. In particular, Japan has the obligation to create conditions which would assure to all persons medical services and medical attention in the event of sickness (Art. 12.2 (d)). Hence, fostering the condition in which medical services and medical attention are out of reach to a segment of the population (undocumented migrant workers) would run in direct conflict with the ICESCR. This apparent breach is particularly serious considering that Japan has a well-developed medical infrastructure unlike third world countries.
The Responsibility to Protect Undocumented Migrant Workers’ Health
Given that health is a human right to which everyone is entitled without discrimination, it is possible to recast the question of undocumented migrant workers’ health in moral terms, that is, in terms of rights and corresponding responsibilities. Who has responsibilities to protect the health of people like Imelda? Here again, the practical work of unions and migrant support NGOs is a source of enlightenment.
Although most Japanese unions are not in the least concerned with the conditions of undocumented migrant workers (Terasawa, p. 220), some unions have taken on their legal problems with employers, including problems involving occupational accidents and diseases. Glenda Roberts (pp. 277-284) mentions the Zentouistu union based in the Kanto region which organizes foreign workers, including undocumented ones. Zentouitsu has successfully represented undocumented migrant workers in negotiations with employers as well as before the Labor Standards Office and the courts in the matter of unpaid wages, termination of employment without sufficient notice, and accidents at the workplace.
In principle, labor laws such as the Minimum Wage Law, Labor Standards Law and Employment Security Law do not discriminate between Japanese and foreign workers and can be applied to foreigners regardless of their residency or visa status. (See, Ministry of Labor Circular, January 26, 1988) In particular, undocumented migrant workers who fall ill or befall an accident in the course of employment may be entitled to compensation under the Worker’s Accident Compensation Insurance Law (WACIL). (Terasawa, p. 225; SMJ Manual, pp. 121-129) Not surprisingly, in practice, employers do not abide by the strictures of labor law in dealing with undocumented migrant workers. Gross violations including payment below minimum wage, non-payment of wages upon deportation, sudden dismissals, and the like, have been documented (Terasawa, p. 220-224). In the matter of health insurance under the WACIL, payment of premiums by employers who are required to enroll all workers therein is rather the exception than the rule.
Imelda, for example, has told the author that her employer has never made deductions in her wages for insurance premiums. Moreover, her employer has never rendered any assistance in cases of serious illness on the part of employees. She said that in her company, there were around one hundred people working at the same kind of job as she was doing (packing merchandise, like bottled mineral water, and hauling them off), all of them women part-time workers. Most of them are undocumented migrant workers, although there are also Japanese workers. They work long hours in sweatshop conditions, sometimes 24 hours around the clock, and in some months, for thirty days without rest day. One of her co-employees suffered a stroke due to over-fatigue and went comatose. However, this worker had to shoulder her hospital bills without help from the employer. Out of pity, her co-employees including Imelda contributed money towards her hospitalization.
Having actually had an employment relationship with Imelda, her employer clearly has legal and moral responsibilities towards Imelda in the matter of her occupational health. Legally, under the WACIL, the employer has to pay her premiums; and she could be entitled to sickness compensation under the WACIL should she be able to establish a link between her illness and her occupation. Morally, having benefited from the labor of undocumented migrant workers, companies must be held responsible for ensuring that such workers are covered by health insurance as employees. Unfortunately, Imelda will clearly require skilled and dedicated activists, like the Zentouitsu union, to press her employer to recognize her right under WACIL and obtain the appropriate compensation, as employers do not voluntarily discharge their responsibilities.
It is also necessary to inquire into the responsibility of hospitals and medical professionals. SMJ also reports that “medical institutions are reluctant to provide medical service to uninsured foreign nationals because most of them will be unable to pay the bills.” (SMJ Proposals, p. 76) Sometimes they act more like the frontline workers of the Immigration Office rather than the health profession. Again, Imelda’s experience bears witness to this. As her doctor discovered that she was an undocumented migrant worker, she was simply advised to return to the Philippines. His doctor’s action belies the mindset that he and his hospital has no responsibility towards her health, or at least, that the imagined demands of immigration law takes precedence over her health.
Fortunately, not all hospitals and health professionals are like Imelda’s doctor. As Roberts relate, Zentouitsu actually began accepting foreign workers’ cases after the Minatomachi Shinryousho Medical Clinic in Yokohama started referring them to the union (p. 279). SMJ also reports that “a few medical institutions with good-willed staff accept uninsured migrants. [However,] such institutions are financially overburdened with the growing number of patients xxx.”
To argue that hospitals and medical professionals have no responsibility towards seriously ill persons simply because they have no residence status in Japan is horrendous.
Hospitals and health professionals, as such, have a responsibility to approach their uninsured patients’ illnesses from a problem-solving framework where their patients’ health are protected above anything else. They should let the Immigration Office take care of the demands of immigration law. Especially when resources exist, hospitals should use them to save their patients’ lives. In cases where emergency medical care is actually extended to uninsured foreigners, some local governments provide financial support to hospitals under the so-called “Medical Expenses Aid System”[9] whereby they can pay for the unpaid medical bills. (SMJ Manual, p. 259-263). These local governments include Tokyo, Yokohama, Kawasaki, Kobe, Ibaragi, Chiba, Tochigi, Gunma, Saitama, Kanagawa and Yamanashi. It is a kind of a bail-out system for hospitals as it is the latter, not the patients, who can apply for aid from the local governments. However, SMJ reports that hospitals often avoid making use of the aid system. Hence, it advises uninsured foreigners to seek the assistance of experienced NGOs and medical social workers to press hospitals to use the system. (SMJ Manual, p. 263)
Turning away undocumented migrant workers who come for medical services for serious illness even when there are available resources to defray the cost is clearly immoral and illegal under international law. Such practice by hospitals would constitute intentionally depriving certain patients medical care in the name of enforcing immigration law. It would also constitute a violation of the principle that everyone should enjoy the highest attainable standard of health (Art. 12.1 ICESCR).
Conclusion
Imelda still has hope.
It is certainly erroneous to say that there is nothing that can be done to save Imelda’s life except to turn her back to the Philippines because she has “no right to be in Japan” in the first place. Fortunately, counselors at Kapatiran can tell her that certain unions can help her press for her rights under Japanese labor laws, and that certain medical NGOs can help her push hospitals to make use of available resources so that she can receive the immediate medical service she needs. She has already gotten in touch with the Association of Medical Doctors in Asia (AMDA)-Japan which in turn referred her to hospitals who may be willing to render medical service to undocumented migrant workers like herself.
Activists are turning tables around and creating more spaces for the undocumented migrant workers even when national policy appears too daunting to challenge. Though undocumented migrant workers may have no legal permission from their host country to engage in work, neither do their employers have the right to exploit their cheap labor until they fall sick. Hence, as unions have ably demonstrated, questions of labor justice still have to be addressed on top of migration law problems.
The question of health rights of undocumented workers also screams out for solution. Hospitals and health professionals will need to reexamine their practices towards undocumented migrant workers from the viewpoint of professional ethics and human rights law. Finally, the national government will have to rethink its policy on the exclusion of undocumented migrant workers from the coverage of universal healthcare system. A reversal of existing policy is clearly required under Article 12 of the ICESCR.
Imelda may be “overstaying” but it doesn’t mean that no one in Japan owe her any responsibility in respect to her health.
References:
Immigration Bureau, Ministry of Justice, Immigration 2006: Internationalization in Accordance with the Rules (Immigration Control Guidebook)
Ministry of Justice Japan, Basic Plan for Immigration Control (3rd edition), March 2005 (Provisional Translation)
Rhacel Salazar Parreñas, “Benevolent Paternalism and Migrant Women: The Case of Migrant Filipina Entertainers in Japan,” Ochanomizu University Journal of Gender Studies, no. 10 (2007), pp. 1-17
Glenda S. Roberts, “NGO Support for Migrant Labor in Japan,” in Mike Douglass and Glenda Roberts, eds., Japan and Global Migration: Foreign Workers and the Advent of a Multi-Cultural Society (University of Hawaii Press: 2003)
Saskia Sassen, “Global Cities and Survival Circuits,” in Barbara Ehrenreich and Arlie Russell Hochschild, Global Woman: Nannies, Maids, and Sex Workers in the New Economy (Metropolitan Books, New York, 2002), pp. 254-274
Solidarity Network with Migrants Japan, Living Together with Migrants and Ethnic Minorities in Japan: NGO Policy Proposals, July 31, 2007, 1st English Edition (SMJ Proposals)
Solidarity Network with Migrants Japan, Survival Manual: A Guide to Foreigners’ Rights in Japan, September 2007, Japanese/English Edition (SMJ Manual)
Katsuko Terasawa, “Labor law, civil law, immigration law and the reality of migrants and their children,” in Mike Douglass and Glenda Roberts, eds., Japan and Global Migration: Foreign Workers and the Advent of a Multi-Cultural Society (University of Hawaii Press: 2003)
[1] This is based on a telephone interview at Kapatiran Gaikokujin Soudan Center, Minato-ku, Tokyo. The author is a counselor at the center. For ethical reasons, the identity of the interviewee is protected.
[2] Perhaps a queer situation, foreign nationals, irrespective of the circumstance of their entry into and residence in Japan (hence, including visa overstayers) are required by the Alien Registration Law to apply for alien registration at the city, town or village office where they reside. Since June 1, 2005, visa overstayers are issued an identification card in which the notation “no status of residence” is printed in bold red characters. Thus, undocumented workers can actually be card-carrying residents.
[3] To be able to work as a hostess in Japan, women seek the assistance of promotion agencies and talent managers in the Philippines who are essentially middlemen brokers who often keep the women in a private relationship of debt bondage. By law, hostesses cannot be hired directly by club owners, and undergo a process of screening and certification through a government agency called TESDA. (See, Parreñas, p. 5 (diagram)) Thus, governmental agency and criminal usurers, legal requirements and informal agreements are juxtaposed in a hazy mix of regulation and exploitation of women’s labor.
[4] We should also mention here the “trainees” and Nikkei-jins. Terasawa (p. 219) explains that government acceptance of trainees and Nikkei-jins in 1987 was a response to industry request to fill the growing labor gap. Ironically, however, trainees are not officially recognized as workers and excluded from Japanese labor law coverage. Moreover, since the 1990s recession, the policy of acceptance has abated.
[5] This is the formulation used by the Japanese Cabinet in December 2003 when they set the target to reduce “illegally staying foreigners” by half in five years. The same formulation is used by Tokyo Metropolitan Government, the Metropolitan Police, and the Immigration Control Bureau in their joint statement on enhancing “measures against illegally staying foreigners”. (SMJ Proposals, p. 10)
[6] This is the formulation in the Homusho’s Basic Plan for Immigration Control 2005.
[7] In Japan, computation of medical expenses are regulated only for those not covered by health insurance. While persons covered by National Health Insurance pay only 30% of allowed cost, there are no such thing as “allowed cost” for uninsured persons. In practice, they are charged 150% to 200% of the usual cost. (SMJ Manual, p. 255) For example, typical treatment for colds computed at a rate of say 5,000 yen may cost an insured person only 1,500 yen, but an uninsured person from 7,500 to 10,000 yen.
[8] The right also finds expression in Article 25.1 of the Universal Declaration of Human Rights: “Everyone has the right to a standard of living adequate for the health of himself and of his family, including food, clothing, housing and medical care and necessary social services” and in Article 7 of the ICESCR: “xxx the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular: xxx (b) Safe and healthy working conditions”. “Additionally, the right to health is recognized, inter alia, in article 5 (e) (iv) of the International Convention on the Elimination of All Forms of Racial Discrimination of 1965, in articles 11.1 (f) and 12 of the Convention on the Elimination of All Forms of Discrimination against Women of 1979 and in article 24 of the Convention on the Rights of the Child of 1989. Several regional human rights instruments also recognize the right to health, such as the European Social Charter of 1961 as revised (art. 11), the African Charter on Human and Peoples’ Rights of 1981 (art. 16) and the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights of 1988 (art. 10). Similarly, the right to health has been proclaimed by the Commission on Human Rights, as well as in the Vienna Declaration and Programme of Action of 1993 and other international instruments.” UN Economic and Social Council, “The right to the highest attainable standard of health (General Comments)”, 11/08/2000, E/C.12/2000/4.
[9] SMJ explains that some local governments introduced this system “as a provisional measure until the national government changes its policy”. (SMJ Manual, p. 259)
