What Is Overstaying? A Clear Guide to Criminal Liability, Special Permission to Stay, and the Departure Order System

Overstaying, that is, remaining in Japan beyond the authorized period of stay (zairyū kikan, 在留期間), is a source of serious anxiety not only for the person concerned but also for their family. “Will I be arrested if I stay like this?” “Will I face criminal punishment?” “Will I be forcibly sent home?” This article is written for those individuals and families who share such concerns. Drawing on practical experience, it explains the legal status of overstaying, the content of criminal liability, and how to choose between special permission to stay (zairyū tokubetsu kyoka, 在留特別許可) and the departure order system (shukkoku meirei seido, 出国命令制度) in immigration proceedings.

Key Points

• Overstaying (fuhō zanryū, 不法残留) refers to remaining in Japan after the authorized period of stay has expired, and it constitutes a ground for deportation (taikyo kyōsei jiyū, 退去強制事由) under Article 24, item 4(b) of the Immigration Control and Refugee Recognition Act (Nyūkanhō, 入管法).
• Criminal liability may include imprisonment (kōkinkei, 拘禁刑) of not more than three years, a fine of not more than 3,000,000 yen, or both, though depending on the circumstances the case may end in a decision not to prosecute.
• Voluntarily reporting to an immigration authority is considered a positive factor in the determination of special permission to stay.
• Where certain requirements are met, the departure order system, which allows departure within a relatively short period without detention, may also be a viable option.
• Whether to pursue special permission to stay or to choose a departure order requires careful, case-specific professional judgment based on individual circumstances.

What Is Overstaying?

Overstaying refers to continuing to reside in Japan after the period of stay indicated on one's residence card (zairyū kādo, 在留カード) or equivalent document has expired, without having obtained a new status of residence (zairyū shikaku, 在留資格). Under Japanese law this is referred to as “illegal overstay” (fuhō zanryū, 不法残留) and constitutes a ground for deportation as defined in Article 24, item 4(b) of the Immigration Control and Refugee Recognition Act (Nyūkanhō, 入管法). It is important to note that this can apply even in cases where there was no original intent to remain unlawfully, such as when a person simply forgets to complete a renewal procedure or fails to complete a change-of-status procedure before the deadline. Even overstaying the period of stay by a single day formally constitutes overstaying.

Criminal Liability

How Overstaying Comes to Light

Overstaying may come to light in a variety of ways: through a police officer's request to see a residence card during a stop-and-question encounter (shokumu shitsumon, 職務質問); when an employer checks a foreign employee's status of residence, discovers the period of stay has expired, and reports this to the immigration authorities; through identity verification during a traffic violation or accident investigation; through screening at an airport or other port when attempting to leave Japan; or through the individual voluntarily reporting to an immigration authority. Among these, voluntary self-reporting, as discussed below, carries significant weight in subsequent immigration proceedings.

The Reality of Sentencing

Article 70, paragraph 1, item 5 of the Immigration Control Act provides that a person who, without justifiable reason, remains in Japan after the expiration of their period of stay shall be subject to imprisonment (kōkinkei, 拘禁刑) of not more than three years, a fine of not more than 3,000,000 yen, or both. That said, whether a case actually proceeds to prosecution, and the severity of any sentence, varies considerably depending on factors such as the length of the overstay, the presence or absence of other legal violations, the circumstances under which the violation came to light, and the person's conduct. In cases involving simple overstaying alone, with no other legal violations and where the person voluntarily reported to the authorities, it is not uncommon for the case to end with a decision not to prosecute (kiso yūyo, 起訴猶予), concluding the criminal proceedings at that stage. On the other hand, where other violations such as illegal employment are also present, or where the case comes to light through an enforcement raid, formal prosecution becomes more likely, increasing the possibility of a fine or a suspended term of imprisonment. It should be noted that, regardless of the outcome of the criminal proceedings, deportation proceedings under the Immigration Control Act proceed separately. Accordingly, it is essential to plan with the immigration proceedings in view, rather than focusing solely on the outcome of the criminal case.

Treatment by the Immigration Authorities

The Role of Voluntary Self-Reporting in Special Permission to Stay

Even where a ground for deportation exists, special permission to stay (zairyū tokubetsu kyoka, 在留特別許可) is a system under which the Minister of Justice may, in his or her discretion, grant special permission for continued residence (Article 50 of the Immigration Control Act). The “Guidelines for Special Permission to Stay” (zairyū tokubetsu kyoka ni kakaru guidelines, 在留特別許可に係るガイドライン) published by the Immigration Services Agency of Japan set out the positive and negative factors considered in making this determination, and one of the enumerated positive factors is that “the foreign national voluntarily appeared at a regional immigration authority to report their unlawful stay.” Compared with cases discovered through enforcement action, voluntary self-reporting is regarded as evidence of the person's law-abiding awareness and sincere conduct, and as a circumstance that may work in the person's favor in the determination of special permission to stay. That said, self-reporting alone does not guarantee permission will be granted; the determination is made through a comprehensive assessment of various factors, including whether the person has a Japanese spouse, whether they have dependent children, the length of their stay in Japan, and their conduct.

When to Consider Using the Departure Order System

On the other hand, for those who are not intent on remaining in Japan and instead prefer prompt departure, the departure order system (shukkoku meirei seido, 出国命令制度) under Article 24-3 and Articles 55-2 through 55-6 of the Immigration Control Act may be a viable option. This system is available where all of the following requirements are met: the person voluntarily reported to an immigration authority before an investigation into the violation began; there is no ground for deportation other than overstaying; the person has not been sentenced to imprisonment for certain crimes; the person has not previously been subject to deportation or a departure order; and prompt departure is reliably expected. Where these requirements are satisfied, the person may depart Japan through a relatively short procedure without being detained. A major advantage of this system is that the period during which re-entry is barred (jōriku kyohi kikan, 上陸拒否期間, also referred to as the re-entry ban period) is shortened to, in principle, one year, compared with the five-year period that ordinarily applies under standard deportation procedures. That said, because this option presupposes departure from Japan, in cases where there are strong reasons to wish to remain in Japan, such as having a Japanese spouse or children, it is often more appropriate to pursue special permission to stay rather than a departure order.

About Our Firm

Whether one should pursue special permission to stay or make use of the departure order system is a professional determination that depends heavily on individual circumstances, including the length of the period of stay, family relationships, conduct, and the circumstances under which the violation came to light. Our firm (Funato International Law Office, 舟渡国際法律事務所, led by Attorney Matsumura Daisuke, 松村大介) analyzes, across multiple years, the published cases in which special permission to stay was granted or denied by the Immigration Services Agency, and, drawing on our own case history, can assess to some extent how closely a given case aligns with the tendencies observed in cases where permission was granted. Based on this analysis, we can provide a practical assessment of whether to proceed toward special permission to stay or to instead pursue an early resolution through the departure order system.

Our firm has substantial experience in immigration proceedings, including having obtained special permission to stay in an unprecedented case involving a finding of the offense of aiding and abetting illegal employment, and having obtained special permission to stay on the first attempt even in the difficult circumstances of incomplete marriage and paternity acknowledgment procedures. Attorney Matsumura Daisuke personally handles every stage of a case, from the initial detention interview through to the conclusion of proceedings, and clients may also make use of our in-house Chinese-language interpreters, who are experienced in matters involving foreign nationals. If you are concerned about an overstay situation or would like to understand your prospects going forward, we encourage you to consult our firm at an early stage.

Closing Remarks

Overstaying is an issue in which the available options tend to narrow as time passes. It is important to consult with a specialist, including considering early voluntary self-reporting, and to choose the course of action best suited to your particular circumstances. Please note that this article provides a general explanation based on the law as of August 2026, and readers should consult a lawyer directly regarding their individual cases. In addition, the past case resolutions referenced in this article are based on individual circumstances and do not guarantee similar outcomes in other cases.

Author

Matsumura Daisuke (松村大介) / Attorney at Law

Member of the Daiichi Tokyo Bar Association (Registration No.: 59077; registered 2019)

Funato International Law Office (3rd Floor, Fuse Building Main Wing, 3-4-10 Takada, Toshima-ku, Tokyo)

Focuses primarily on criminal defense for foreign nationals, with an emphasis on Chinese nationals, and on immigration procedures. Case results include a not-guilty verdict in a case involving violation of the Stimulants Control Act (possession for profit), a decision not to prosecute in a specialized fraud case, and the successful acquisition of special permission to stay in a case considered highly difficult to win.

Funato International Law Office

Website: https://matsumura-lawoffice.jp/

WeChat ID: matsumura1119