Can same-sex partners get visas?

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1. What is same-sex marriage?

Same-sex marriage is the marriage of a man to a man or a woman to a woman.

In recent years, the protection of the human rights of so-called sexual minorities has begun to be recognized worldwide, and the term LGBT has also begun to permeate.
In addition, an increasing number of countries, mainly in Europe and the United States, legally recognize same-sex marriage.

As of 2022, same-sex marriage is recognized in more than 30 countries, including the United States, Canada, Australia, Brazil, France, Germany, the United Kingdom, and Spain.

In 2019, Taiwan became the first country in Asia to legalize same-sex marriage was become a big topic.

However, as you know, same-sex marriage is not recognized in Japan.
This is because Article 24, Paragraph 1 of the Constitution of Japan stipulates that “marriage shall be established only based on the mutual consent of both sexes.”

1-1. legal marriage and common-law marriage

In recent years, especially in Europe and the United States, more and more people are ending their relationships with their partners through common-law marriages.

There are various definitions of common-law marriage, but generally it refers to a state in which legal marriage procedures (legal marriage) have not been carried out.
Some countries, like France’s PACS (civil solidarity contract), have adopted a system that allows heterosexual or same-sex couples to be treated in the same way as legal marriage.

Discussions on the legalization of same-sex marriage presuppose same-sex legal marriage, not same-sex common-law marriage.
Please note that the term “same-sex marriage” also means same-sex legal marriage, and does not include same-sex common-law marriage or PACS, which is similar to legal marriage.

2. Visa for same-sex marriage partner

Regarding visas for same-sex marriage partners, the Ministry of Justice’s position as of 2022 is as follows.

According to Ministry of Justice No. 5357 dated October 18, 2013, the term “spouse” under the Immigration Control Act does not include same-sex marriage.
Therefore, a same-sex marriage partner cannot obtain a “Spouse or Child of a Japanese National”, “Spouse or Child of a Permanent Resident”, or a “Family Stay” visa.

However, since it is possible to obtain a “Designated Activities visa”, we will explain it in two cases below.

2-1. Same-sex marriage between foreigners

According to the above notification, in the case of same-sex marriage between foreign nationals, if the marriage is validly established in each of the foreign home countries, if one of them has a status of residence, that partner has a possibility to be changed the status of residence to “Designated Activity visa”.

For example, if the marriage between Ms. A, a German permanent resident and Ms. B, a French international student, is validly established in both countries, there is possibility that Ms. B will be allowed to change to a “Designated Activities visa”.
For a little more detailed, the “Designated Activity visa” is divided into the “Designated Activity Notification”, which the Minister of Justice assumes in advance, and “Non-notification Designated Activity”, which does not assume activity in advance.

The big difference between the two is whether or not an application for a Certificate of Eligibility (an application generally made by a foreigner living in Japan for a long period of time) will be accepted.

In other words, if it is a Designated Activity Notification, application for a Certificate of Eligibility will be accepted, but if it is a Non-notification Designated Activity, application for a Certificate of Eligibility will not be accepted. So that after entering Japan, it is necessary to apply for permission to change to a “Designated Activity visa”.
Same-sex marriage partners are permitted to apply for a “Non-notification Designated Activity”, so if your partner is overseas, you need to be attention with that.

2-2. Same-sex marriage between a foreigner and a Japanese

The above notice applies to same-sex marriages validly established in the home country.
In other words, if the home country law of one of the parties to the marriage does not recognize same-sex marriage, it cannot be said that a change to a “Designated Activity visa” is permitted on the basis of the above notification.
As mentioned above, same-sex marriage is not recognized as a legally valid marriage in Japan.
Therefore, there were different interpretations as to whether or not a partner who is same-sex married a Japanese person can be granted a Designated Activities visa.

However, on September 30, 2022, in a case in which an American man who married a Japanese man in the United States filed a lawsuit against the government for not being granted a long-term visa in Japan, the Tokyo District Court, “Same-sex couples of foreign nationals are granted the status of residence as ‘Designated Activities,’ but they are not recognized as couples of foreigners and Japanese is against the law,” and said, “We have judged that the Japanese government’s response to refusing to approve visas for Designated Activities is illegal.

In addition, regarding the claim of change to “Long-Term Resident visa” requested by this American man,
“At present, there is no regulation in Japan that recognizes same-sex marriage, and it is difficult to think that there is a similar status to that of a spouse or that there are special circumstances.”

The Tokyo District Court’s ruling above can be said to be an epoch-making ruling, but it is still a long way off before actual practice moves in this direction. Until the Grand Bench of the Supreme Court renders a ruling of unconstitutionality and the notification is changed, there will be no change in the practice of Immigration Control Act.
Therefore, under the present circumstances, a Designated Activity visa cannot be given to a same-sex marriage between a foreigner and a Japanese.

2-3. If the laws of the country of origin of both parties to the marriage do not recognize same-sex marriage

For example, in the case of same-sex couples between a Japanese and a Chinese national, neither the above notice nor the judgment of the Tokyo District Court does not apply to cases where the national laws of both parties do not recognize same-sex marriage.
At present, unless the home country law of one of the parties to the marriage recognizes same-sex marriage, it is unlikely that a visa will be granted.

3. Visa for same-sex marriage partner requirements

Since the Non-notification Designated Activity visa is not stipulated by law or notification, the requirements for permission are not clear.
However, as requirements for status of residence in general, ① Necessity of residence and ② Permissibility of residence are required.

Based on this, the above notice can be interpreted as requiring the following requirements.

The requirement for ①, as explained above, requires that same-sex marriage is validly established under the laws of the country of origin of the parties to the marriage. This requirement is not fulfilled in common-law marriage, where the couple has lived together for a long time but is not married.

In addition, this “designated activities visa” is aimed at living together as a partner in Japan, so it is not enough just to have same-sex marriage legally established, but also it is required that there is a relationship as a substantial partner.
It is the same as the “Spouse or Child of Japanese National” visa in that specific proof of the circumstances leading up to the relationship between the two persons, the status of interaction with relatives, and the circumstances leading up to the marriage are required.

The requirement for ② are also required to have sufficient income and assets to live a married life in Japan, as the same as the “Spouse or Child of Japanese National” visa.

For more information on this, see Spouse visa Income.

4. Summary of visa acquisition for same-sex partners

From October 18, 2013, No. 5357, the status of same-sex marriage partners has improved.
Judgments like the Tokyo District Court judgment on September 30, 2022 will increase in the future.

However, in terms of not being able to apply for a Certificate of Eligibility and restrictions on working, it can be said that protection is weaker than in the case of marriages between Japanese and Permanent Resident of the opposite sex.

In Japan, the discussion on same-sex marriage has not progressed as far as in Europe and the United States, but since it is an issue related to basic human rights, I believe that it should be discussed nationally in the near future.

If you have trouble with a visa for same-sex marriage partner, please contact us for free consultation.