Challenging the Minister's Decision and the Deportation Order in Court, and Applying for a Stay of Execution

When special permission to stay (在留特別許可) is refused and a written deportation order (退去強制令書) is issued, most families feel that nothing further can be done. An administrative decision is not necessarily the last word. Administrative dispositions can be challenged in court by an action for revocation, together with an application to suspend their effect. That route is neither easy nor certain, and no result can be promised. This article is for the families of those who have become subject to deportation because of a drug case, and sets out quietly what is actually contested in administrative litigation and what should be kept safe in order to contest it.

Key points

• Even where special permission to stay is refused, the Minister of Justice's decision and the disposition issuing the written deportation order can be challenged by an action for revocation under administrative litigation.
• The central issues are whether the factors listed in Article 50(5) of the Immigration Control and Refugee Recognition Act (入管法) were properly considered, and whether there was an abuse or excess of discretion.
• Under Article 50(10), a refusal comes with a written statement of reasons. That document is the starting point for building the case.
• Filing an action does not of itself halt removal, so an application for a stay of execution has to be considered alongside it.
• The special permission cases published by the Immigration Services Agency (出入国在留管理庁) can serve as source material for an argument based on the equality guarantee in Article 14(1) of the Constitution.

If special permission is refused, is that the end?

An administrative decision does not exhaust the available legal steps. The Minister of Justice's decision and the disposition issuing the written deportation order are administrative dispositions, so revocation may be sought within the framework of administrative litigation. Alongside that, an application to stay execution is considered, so that removal is not carried out before judgment.

Litigation takes time and effort, and no one should offer casual predictions about it. We do not forecast success. Our approach is to explain frankly what arguments are available and what evidence each of them requires.

What is actually argued in the litigation?

The central question is whether the Minister's decision exceeded the bounds of his discretion or amounted to an abuse of it. Discretion in this field has traditionally been described as broad, but now that Article 50(5) sets out the factors in statute, the argument can be framed more sharply: that circumstances the law required to be considered were not considered, or that weight was given to circumstances that should not have counted. The reasoning process itself can be put in issue.

In a drug case, conduct and the facts giving rise to the ground for deportation will inevitably weigh against the applicant. But Article 50(5) also lists, alongside those, the reasons the person wishes to remain, family circumstances, the circumstances in which the person came to Japan, the length of residence in Japan, the person's legal status during that period, and the need for humanitarian consideration. Where the record does not show how those were actually assessed, there is room to argue a failure to consider relevant matters.

• Whether each factor in Article 50(5) was examined individually against the facts of the case
• Whether the realities of family life and length of residence were accurately grasped in light of the evidence
• Whether the assessment of the facts giving rise to the ground for deportation became formulaic and detached from the substance of the case
• Whether the outcome is consistent with earlier grants in cases involving similar circumstances

The written reasons under Article 50(10) are the starting point

Article 50(10) provides that where the Minister decides not to grant special permission to stay, notice must be given promptly in writing, with reasons. That document is primary evidence of what the administration treated as serious and what it treated lightly. When it arrives, read it and then keep it safe.

Where the stated reasons are abstract, that can itself become an issue. Since the statute now lists the factors, whether the reasons show a concrete examination corresponding to those items is one measure of whether the reasoning process was sound.

A stay of execution buys time

Filing an action for revocation does not, in itself, halt the removal process. To prevent a fait accompli before judgment, an application for a stay of execution is therefore considered alongside the action. Whether such an application succeeds depends on the specific circumstances, and no general prediction is possible.

What tells here is whether you can show, as concrete individual facts rather than as generalities, what would be irrecoverably lost if removal took place. The age and schooling of a child living in the household, the condition of a family member needing care, the realities of work and household finances. The record of ordinary daily life becomes the raw material of the argument.

Published cases and the equality principle

Since 2004 the Immigration Services Agency 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 nothing other than a body of precedent in which the administration itself concluded that permission was appropriate. Where permission has been granted in cases with similar circumstances, is there a rational basis for treating this case differently? That question can be framed as an argument under the equality guarantee in Article 14(1) of the Constitution.

Now that Article 50(5) lists the factors, comparison with the published cases can be carried out more systematically. The published summaries are written in abstract terms out of regard for personal information, so the comparison proceeds on the basis of substantive similarity rather than exact correspondence. A record of grants in similar cases does not guarantee permission.

How we approach the work, and how the office is organised

We treat criminal defence and immigration proceedings as one continuous design. A decision not to prosecute (不起訴処分) in the criminal case is the first line of defence, contesting whether a ground for deportation exists is the second, and special permission to stay is the third; administrative litigation sits on the same line, further along. The record built at each earlier stage supports the stage that follows.

Attorney Daisuke Matsumura handles every stage personally, from the first detention visit through to the close of trial. For Chinese, we have a dedicated interpreter on staff who is experienced in cases involving foreign nationals; for languages other than Chinese, including English, we arrange an interpreter to suit the case. Status of residence (在留資格) procedures after the criminal process ends are handled together with an administrative scrivener we work with.

Related matters we have handled

In proceedings brought to protect a woman wrongly accused of promoting illegal employment and facing deportation, we are pursuing litigation testing the reach of the principle of culpability and of fault-based liability, with the aim of overturning the established practice that intent and negligence are irrelevant to grounds for deportation. In the same case we obtained special permission to stay, in circumstances with no precedent for a finding of promoting illegal employment.

In another matter, for a client who had lost their status of residence and was arrested and prosecuted for overstaying, we negotiated with the authorities towards establishing marriage and acknowledgment of paternity and analysed previously published grants, obtaining special permission to stay on a single application. On the criminal side, we obtained an acquittal for a client prosecuted for violating the Stimulants Control Act (possession for the purpose of profit), through thorough analysis of the evidence and through examination of the defendant and cross-examination of witnesses. Past matters turned on their own particular facts, and no similar outcome can be promised.

Administrative litigation exposes an administrative decision to the eyes of a court. What is really at stake there is one question: whether the factors the law requires to be weighed were genuinely examined against the particulars of a person's life. We cannot promise a result, but the fact that the system provides a route to contest the decision is worth knowing. This article is a general explanation; for your own situation, please consult a lawyer directly. Past matters 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