Released on Bail but Taken to Immigration Detention: How Criminal Custody and Immigration Detention Connect in Japan

Bail is granted, a detention request is denied, or a prison term ends. Families who have been counting the days sometimes learn that instead of coming home, their relative has been moved to another facility. Custody in a criminal case and detention (収容) under immigration law rest on different legal bases and serve different purposes. When one ends, the other does not automatically fall away. This article sets out how the immigration process can move at each point where criminal custody is lifted.

Key points

• Custody in criminal proceedings and detention under the Immigration Control and Refugee Recognition Act (入管法) are separate systems.
• Even if criminal custody ends through bail or a denied detention request, the immigration process can begin where grounds for deportation (退去強制) exist.
• For drug offences, article 24, item 4, sub-item (chi) makes the fact of conviction alone a ground for deportation.
• An application for special permission to stay (在留特別許可) is made by a person detained under a written detention order or subject to a supervision measures (監理措置) decision, and cannot be made once a deportation order has been issued.
• The material and arguments assembled during the criminal case become the foundation of the immigration process.

If I am released in the criminal case, can I just go home?

If your status of residence (在留資格) remains valid and no ground for deportation applies, you can normally go home. The difficulty arises when that is not the case. Custody in criminal proceedings exists to prevent the destruction of evidence and flight; detention under the Immigration Control and Refugee Recognition Act exists so that deportation proceedings can be carried out. Because the purposes differ, the end of one does not bring the other to an end.

In drug cases the relevant provision is article 24, item 4, sub-item (chi). It makes a person who has been convicted of violating the Narcotics and Psychotropics Control Act, the Act on Regulation of Cannabis Plant Cultivation, the Opium Act, the Stimulants Control Act, the Anti-Drug Special Provisions Act, or Chapter XIV of Part II of the Penal Code subject to deportation, with no limitation as to the type of sentence or its length. You may walk out of the courtroom with a suspended sentence and find that the immigration process starts from there.

What happens if I am released because detention was denied, a quasi-appeal succeeded, or bail was granted?

At that stage no judgment has been given, so the ground for deportation under sub-item (chi) has not arisen. The position changes, however, if you have already lost your status of residence for some other reason. Where your period of stay expired during the criminal proceedings, or where there was no basis for your stay to begin with, the case can move into the immigration process at the moment criminal custody ends.

For that reason, alongside efforts to secure release, the basics have to be mapped out early: whether there is a residence card, when the period of stay expires, and whether a renewal application is needed. These are easy to overlook when only the criminal case is in view, yet they shape life after release.

If the sentence is served, how does the transfer from prison work?

Where an unsuspended sentence becomes final and is served, preparations for immigration procedures may go forward as the end of the term approaches. Many families expect their relative to come home on the day of release, but where grounds for deportation apply, being moved directly to an immigration facility is a possibility that has to be anticipated.

The way to avoid being caught unprepared is to start work during the sentence. Documents showing family relationships, material showing the reality of life built in Japan, and records of steps taken to prevent relapse all gain weight the longer they are gathered.

Is there a way to go through the process without being detained?

The 2023 amendment introduced supervision measures as an alternative to detention. Article 50(2) of the Immigration Control and Refugee Recognition Act lists, as persons who may apply for special permission to stay, foreign nationals detained under a written detention order and foreign nationals subject to a supervision measures decision. In other words, the legislation contemplates pursuing special permission to stay while the process proceeds under supervision measures.

That said, we must add that in drug cases measures short of detention are, in practice, harder to obtain. Individual decisions cannot be predicted. Even so, it is meaningful to set out concretely who could serve as a supervisor, the stability of the residence, and the support structure for daily life, and our approach is to argue what ought to be argued.

The steps have deadlines

As to special permission to stay, article 50(3) provides that an application cannot be made once a written deportation order has been issued. Because the order of steps is fixed, the application and the supporting material have to be completed before that order is issued.

Article 50(4) further provides that special permission to stay may only be granted after the person has accepted the findings or determination, or after a decision on an objection. Each stage of the process has its own tasks and its own window in which those tasks can be performed. There is no need to be alarmed by this, but the sequence is worth getting exactly right.

• An application for special permission to stay is made by a person detained under a written detention order or subject to a supervision measures decision (art. 50(2))
• No application can be made after a written deportation order has been issued (art. 50(3))
• Permission may only be granted after acceptance of the findings or determination, or after a decision on an objection (art. 50(4))
• Where permission is refused, notice is given in writing with reasons (art. 50(10))

Designing the criminal case and the immigration case as one

For drug cases involving foreign nationals, our office works to a three-stage plan. The first line of defence is a decision not to prosecute (不起訴処分) before charges are filed. The second is contesting, in the deportation proceedings, whether the grounds for deportation apply. The third is special permission to stay.

At the third line, we build the facts along the factors set out in article 50(5): the reason for wishing to remain, family relationships, conduct, the circumstances of entry, the length of stay, the legal status held during that time, the facts giving rise to deportation, and the need for humanitarian consideration. In addition, the grant and refusal examples published by the Immigration Services Agency (出入国在留管理庁) since 2004 are an accumulation of precedents in which the administration itself judged that permission was appropriate. Where permission has been granted in cases with similar circumstances, treating a case differently can be questioned under the principle of equality in article 14(1) of the Constitution.

Much of the material supporting these arguments is created during the criminal case. Handling the criminal defence and the immigration response separately risks losing that continuity.

Our office, and cases we have handled

At Funado International Law Office, attorney Daisuke Matsumura personally handles every stage, from the first visit at the detention facility through to the close of trial. For Chinese we have a dedicated interpreter on staff who is experienced in cases involving foreign nationals, available as an interpreter working for the client, separate from the interpreter appointed by the investigating authorities. For languages other than Chinese, we arrange an interpreter according to the needs of the case. Residence procedures after the criminal case ends are handled together with an affiliated administrative scrivener, so that everything is dealt with in one place.

In one matter, a client who had lost his status of residence and was arrested and prosecuted obtained special permission to stay on a single application: we negotiated with the authorities from a constitutional standpoint so that a marriage and an acknowledgment of paternity could be completed, gathered favourable evidence in circumstances where official documents were scarce, and analysed past grant examples. In the case of a woman wrongly accused of facilitating illegal employment, we are continuing litigation testing the reach of the principle of individual culpability, and obtained special permission to stay in a case where that offence had been found, which had no precedent.

Knowing early that a second door stands behind the first makes it clear what has to be prepared and when. Designing the criminal case and the immigration case as a single sequence is the practical way for a family to keep living together. Please note that this article is a general explanation; for your own case, consult a lawyer directly. Past results reflect the particular circumstances of those cases and are not a guarantee of a similar outcome.

This article reflects the law as at August 2026.

About the author

Daisuke Matsumura, Attorney at Law
Dai-Ichi Tokyo Bar Association (registration no. 59077, admitted 2019)
Funado International Law Office (Fuse Building Main Wing 3F, 3-4-10 Takada, Toshima-ku, Tokyo)
Practice focused on criminal defence for foreign nationals and immigration proceedings.
Results include an acquittal in a Stimulants Control Act case (possession for the purpose of profit), non-prosecution in organised fraud cases, and special permission to stay in cases regarded as difficult.

Funado International Law Office
Website: https://matsumura-lawoffice.jp/
WeChat ID: matsumura1119