Spouse of a Japanese National Convicted in a Drug Case: Where the Foothold for Special Permission to Stay Lies

If you have built a family life in Japan as the spouse of a Japanese national and are then convicted in a drug case, the strength of that status of residence (在留資格) will not spare you from the deportation provisions. That has to be said plainly at the outset. But the story does not end there. Trace the provisions of the Immigration Control and Refugee Recognition Act (入管法) and you find a rule that gives people in this category something to stand on. This article sets out both the hard part and the foothold, following the statutory text.

Key points

• Spouse or child of a Japanese national is a status of residence under Appendix II (別表第二) of the Immigration Act, so Article 24, item 4-2 does not apply.
• Drug offences, however, fall under Article 24, item 4(chi), which operates regardless of the Appendix distinction, and a guilty verdict alone creates a ground for deportation (退去強制).
• Item 4(chi) is not among the grounds listed in the proviso to Article 50, paragraph 1, which governs special permission to stay (在留特別許可).
• Accordingly, unless the unsuspended sentence exceeds one year, the case is judged within the ordinary framework rather than under the heightened requirement.
• Article 50, paragraph 5 sets out family circumstances, length of residence and the need for humanitarian consideration, among others, as statutory factors to be considered.

Even under Appendix II, drug cases put you on the same ground as everyone else

Spouse or child of a Japanese national is one of the statuses listed in Appendix II of the Immigration Act. Together with permanent resident (永住者), spouse or child of a permanent resident, and long-term resident (定住者), it is granted on the basis of personal status or position rather than activity, which makes it different in character from the Appendix I (別表第一) work-related and student statuses.

That difference shows itself in Article 24, item 4-2 of the Immigration Act. That item is a ground for deportation operating where a person holding an Appendix I status is sentenced to imprisonment (拘禁刑) for offences under certain chapters of the Penal Code and comparable provisions, and it does not apply to holders of an Appendix II status. Renewal of the period of stay likewise has a different emphasis from the Appendix I statuses, where the examination centres on activity requirements.

For drug offences, however, that distinction does no work. Article 24, item 4(chi) of the Immigration Act refers to a person found guilty of violating the Narcotics and Psychotropics Control Act (麻薬及び向精神薬取締法), the Cannabis Cultivation Control Act (大麻草の栽培の規制に関する法律), the Opium Act (あへん法), the Stimulants Control Act (覚醒剤取締法), the Anti-Drug Special Provisions Act (麻薬特例法), or Chapter XIV of Part II of the Penal Code, and it does not ask which status of residence is held. There is no limit as to type or length of sentence, and no exception for a suspended sentence.

So does holding this status of residence still count for anything?

It does, because at the special permission stage the legislation provides for different treatment.

The proviso to Article 50, paragraph 1 of the Immigration Act imposes a heightened requirement on a person sentenced to life imprisonment or to imprisonment exceeding one year (excluding those whose sentence has been wholly suspended, and those given a partially suspended sentence where the unsuspended portion is one year or less), or on a person falling within Article 24, item 3-2, item 3-3, item 4(ha) or items 4(wo) through 4(yo): permission may be granted only where there are found to be "special circumstances such that refusing permission would be found to lack humanitarian consideration".

The important point is that item 4(chi) is not among the grounds listed in that proviso. The heightened requirement is not imposed merely because the case is a drug case. So long as the sentence has not become an unsuspended term exceeding one year, the case is judged within the ordinary framework.

Why avoiding an unsuspended sentence over one year matters structurally

That structure dictates how objectives should be set in the criminal case.

The most desirable outcome is a decision not to prosecute (不起訴処分) before charges are brought. A decision not to prosecute is not a guilty verdict, so Article 24, item 4(chi) never operates at all. Since item 4(chi) carries no proviso, we consider that a strategy treating a suspended sentence at trial as the final objective sets the wrong target when residence is what is at stake.

Even where charges are brought, the sentencing outcome determines whether the proviso to Article 50, paragraph 1 applies. The objective of the criminal defence therefore has to be set not simply as reducing the sentence, but in relation to that dividing line.

How do you build up the factors under Article 50, paragraph 5?

By matching concrete material to each of the statutory factors, one at a time.

Article 50, paragraph 5 of the Immigration Act provides that consideration is to be given to the reasons for wishing to remain, family circumstances, conduct, how the person came to enter Japan, the length of residence in Japan and the legal status held during that time, the facts giving rise to the deportation, and the need for humanitarian consideration, as well as to domestic and international conditions, the effect on unlawful residents in Japan, and other circumstances.

In drug cases, conduct and the facts giving rise to the deportation are the greatest obstacles. That is exactly why the other factors have to be built up thickly, and why concrete steps to prevent any recurrence need to be put into tangible form.

• Material showing the reality of the marriage, such as living arrangements, how living costs are borne, and everyday records
• Material relating to the children's schooling and upbringing
• Employment and income, and the record of tax and social insurance payments
• Records of medical attendance and of steps taken to prevent recurrence
• An account of the supervision available from a spouse, relatives or an employer

Arguing equality on the basis of published cases

Since 2004, the Immigration Services Agency (出入国在留管理庁) has published, year by year, cases in which special permission to stay was granted and cases in which it was refused. They are nothing less than an accumulation of precedents in which the administration itself concluded that permission was appropriate.

We therefore extract cases essentially similar to the client's own and argue that, where permission has been granted in comparable circumstances yet this case alone is treated differently, that is differential treatment without a rational basis and raises a problem under the principle of equality in Article 14, paragraph 1 of the Constitution.

Because the published cases are written in abstract terms, the comparison is made on the basis of essential similarity of circumstances. The conclusion turns on the particular facts, and we cannot offer a definitive prediction.

How our office works

Funado International Law Office is at 3F Fuse Building Main Wing, 3-4-10 Takada, Toshima-ku, Tokyo. Attorney Daisuke Matsumura personally handles every stage, from the first detention-centre visit through to the close of trial, and the work is not delegated to clerical or other staff.

For Chinese, a dedicated interpreter experienced in cases involving foreign nationals is on staff. Separate from the interpreter appointed by the investigating authorities, you can use an interpreter who acts for you throughout the criminal process. For English, Vietnamese, Korean and other languages, we arrange an interpreter to suit the particular case. Renewals and changes of status of residence after the criminal process has ended are handled together with an administrative scrivener with whom we work.

From cases we have handled

In one case, a client who had come to Japan as a tourist had a child with a Japanese woman but lost his status of residence and was arrested and prosecuted for unlawful overstay (D-1). Neither marriage nor acknowledgement of paternity had been completed, so the filings were not accepted at first; we negotiated repeatedly with the authorities from a constitutional standpoint and succeeded in having the marriage and the acknowledgement established.

We then gathered evidence of the family relationship and the reality of daily life in circumstances where almost no official documents from the country of nationality existed, analysed the immigration authorities' previous grants of permission to construct the argument, and obtained special permission to stay on a single application. Working from the formation of the family relationship itself is an approach that carries over to cases involving the spouse of a Japanese national.

In another, acting for a woman wrongly accused of facilitating unlawful employment who faced deportation, we are currently litigating a case that asks how far the principles of individual culpability and fault-based liability extend (D-2). In that same matter we obtained special permission to stay in a case where facilitation of unlawful employment had been found, an outcome with no prior example.

The status of spouse or child of a Japanese national is no shield in a drug case. At the special permission stage, however, the legislation leaves a foothold. Avoiding an unsuspended sentence exceeding one year, and filling in the statutory factors with evidence: there is real value in keeping both of these in view from an early stage. This article is a general explanation. For your own situation, please consult a lawyer directly. The past results described above turned on the particular circumstances of those cases and are not a guarantee that a similar outcome will be achieved.

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/
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