You Can Apply for Special Permission to Stay: Three Things the 2023 Amendment Changed for Drug Cases

For years, special permission to stay (在留特別許可) was explained as an act of grace, exercised by the Minister of Justice on his own initiative and not something you could ask for. In practice, lawyers filed what amounted to a petition urging the Minister to exercise that discretion. The 2023 amendment (令和5年改正) rearranged this on the face of the statute. It names who may apply, it lists in law the factors that must be weighed, and it requires written reasons when an application is refused. Seen from the perspective of drug cases, each of those three changes has practical consequences. Here we work through them provision by provision.

Key points

• Article 50(2) of the Immigration Control and Refugee Recognition Act (入管法) provides that an application for special permission to stay is made to the Minister of Justice by a foreign national detained under a written detention order (収容令書), or by one placed under supervision measures (監理措置).
• Article 50(5) sets out in law the factors to be considered, including family circumstances, conduct, length of residence and the need for humanitarian consideration.
• Article 50(10) requires that a refusal be notified promptly in writing, with reasons.
• Article 24(4)(chi) is not among the provisions listed in the proviso to Article 50(1), so a drug offence does not, by itself, trigger the heightened test.
• An application follows the stages set out in Article 50(4), and can no longer be made once a written deportation order (退去強制令書) has been issued (Article 50(3)).

Special permission to stay is something you can apply for

Start with the conclusion. Under the statute, special permission to stay is something the foreign national concerned may apply for. Article 50(1) provides that, even where a person is subject to deportation, the Minister may in certain cases grant special permission to stay 'on the application of the foreign national concerned or ex officio'.

Article 50(2) then sets out the procedure. An application for special permission to stay is made to the Minister of Justice, in the manner prescribed by Ministry of Justice ordinance, by a foreign national detained under a written detention order or by a foreign national placed under supervision measures. Who may apply is written into the law itself.

What actually changed in practice with the 2023 amendment?

The changes come down to three. First, the application route is now express. Second, the factors to be considered are listed in the statute. Third, a refusal must be notified in writing with reasons.

On the second point, Article 50(5) directs the Minister to consider the reasons the person wishes to remain in Japan, family circumstances, conduct, the circumstances in which the person came to Japan, the length of residence in Japan, the person's legal status during that period, the facts giving rise to the ground for deportation, and the need for humanitarian consideration.

On the third, Article 50(10) requires that where the Minister decides not to grant permission, notice must be given promptly in writing, with reasons. Reasons on paper mean that it becomes possible, afterwards, to examine how the listed factors were actually weighed.

Who can apply, and when?

As Article 50(2) provides, the applicant must be a foreign national detained under a written detention order or one placed under supervision measures. So the first thing to establish is whether the person concerned is in one of those two positions.

On timing, Article 50(4) provides that special permission to stay may be granted only after the person has accepted the finding under Article 47(3) or the determination under Article 48(8), or after the decision under Article 49(3). The scheme is tied to the stages of the deportation procedure (退去強制手続).

• Who may apply: a foreign national detained under a written detention order, or one placed under supervision measures (Article 50(2))
• When: after accepting the finding or determination, or after the Minister's decision (Article 50(4))
• When the door closes: once the written deportation order is issued (Article 50(3))
• If refused: written notice with reasons (Article 50(10))

In drug cases, reading the proviso closely matters

In some cases the test for special permission is a heightened one. The proviso to Article 50(1) provides that where the person has been sentenced to life imprisonment or to imprisonment (拘禁刑) for more than one year (excluding a person whose sentence has been suspended in its entirety, and a person given a partially suspended sentence where the unsuspended portion is one year or less), or where the person falls under Article 24(3)-2, (3)-3, (4)(ha) or (4)(o) through (yo), permission may be granted only where the Minister finds special circumstances such that refusing to permit residence would be lacking in humanitarian consideration.

Article 24(4)(chi), the provision that covers drug offences, does not appear in that list. A drug offence therefore does not, in itself, bring the heightened test into play. Unless the person has been sentenced to more than one year of actual imprisonment, the ordinary framework applies.

Linking the statutory factors to the published cases

Since 2004 the Immigration Services Agency (出入国在留管理庁) has published, year by year, examples of cases in which special permission to stay was granted and cases in which it was refused. These are a body of precedent in which the administration itself concluded that permission was appropriate. In our office, identifying the published cases closest to the client's situation is the first step in drafting.

Now that Article 50(5) lists the factors, that exercise is easier to structure than it once was. Previously there was little choice but to set out the whole picture and ask for it to be weighed in the round. Today you can point to comparators factor by factor: these precedents on family circumstances, those on length of residence.

And where permission has been granted in cases with materially similar circumstances, yet no rational basis can be found for treating this case differently, there is room to raise the point under the equality guarantee of Article 14(1) of the Constitution. That said, the published summaries are written at a level of abstraction, so the argument has to be built around substantive similarity rather than exact correspondence, and it is not a technique with a guaranteed result.

How to build the written application

We find it effective to use each item in Article 50(5) as a heading and place the facts and supporting documents beneath it. In drug cases, 'conduct' and 'the facts giving rise to the ground for deportation' are the heaviest items. Padding out the other headings while avoiding those two produces nothing persuasive. Describe how the offence came about, directly; then set out the concrete arrangements now in place to prevent any repetition. In our experience, that order is what reaches the reader.

How our office works, and matters we have handled

At Funado International Law Office (Fuse Building Main Wing 3F, 3-4-10 Takada, Toshima-ku, Tokyo), attorney Daisuke Matsumura handles the work personally, from the first detention visit through to drafting the immigration filings. In an application for special permission to stay, the persuasive weight lies in the detail of the facts, which is why it matters that the person drafting is the one who has followed the case throughout.

For Chinese, we have a dedicated interpreter on staff who is experienced in cases involving foreign nationals, so that you have an interpreter working for you rather than one appointed by the investigating authorities. For other languages, including English, we arrange an interpreter to suit the case. Renewals and changes of status of residence (在留資格) after the proceedings conclude are handled together with an administrative scrivener we work with.

To give some examples: for a client who had lost their status of residence and was arrested and prosecuted for overstaying, we regularised the family relationships through negotiation with the authorities and analysed the agency's previously published grants, obtaining special permission to stay on a single application. We have also obtained special permission to stay in a case involving a finding of promoting illegal employment, where there was no precedent for such a grant, and secured a decision not to prosecute (不起訴処分) for a woman in her twenties alleged to have withdrawn money as part of a specialised fraud operation.

The 2023 amendment reshaped the provisions on special permission to stay so that the framework of the decision is visible from outside. That also means it is now clearer what we, on this side, have to argue. Rather than waiting passively for an act of grace, we build the case heading by heading, along the items the statute lists. That way of working is now open to us. This article is a general explanation; for your own situation, please consult a lawyer directly. The past matters described here turned on their own particular facts, and no similar outcome can be promised.

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