Does Deportation Really Require No Intent or Negligence? Testing the Reach of the Culpability Principle (Litigation We Are Currently Pursuing)

In drug cases, the sentence people say with the most urgency is: I genuinely did not know. In a criminal trial, intent is examined head-on. In the deportation procedure (退去強制手続) that follows, however, practice has long proceeded on the basis that neither intent nor negligence is required. Even where a person did not know, formal satisfaction of the requirements makes them subject to deportation. Is that really self-evident, measured against basic legal principle? Attorney Daisuke Matsumura is currently pursuing litigation that puts the question directly. This article sets out the structure of the issue and what the argument means in practice for drug cases, without anticipating the outcome.

Key points

• Immigration practice has for many years proceeded on the basis that intent and negligence are not requirements when assessing grounds for deportation.
• In a case concerning deportation on the ground of promoting illegal employment, our office is currently pursuing litigation asking whether the principle of culpability should extend to deportation as an administrative disposition.
• Article 24(4)(chi) of the Immigration Control and Refugee Recognition Act (入管法24条4号チ) is framed around a person having been convicted, so intent is assessed within the criminal proceedings.
• In drug cases there are many situations where intent is decisive: courier cases, cases of holding a package for someone, cases turning on knowledge of what a substance contained.
• Contesting intent thoroughly at the criminal stage, and preserving that record, is the foundation for arguments in the later immigration proceedings.

Can I be deported even if I did not know?

On the basis of long-standing immigration practice, intent and negligence have not been treated as requirements when grounds for deportation are assessed. The explanation given is that deportation is an administrative disposition and not a punishment. We do not think that practice should be accepted as a given.

Deportation strips away the foundations of a person's life: work, living with family, raising children, access to medical care. When a single disposition severs all of that, is it enough to point to its formal character as an administrative act and leave the element of culpability out of account? A practice does not escape scrutiny merely because it has been followed for a long time.

How the deportation provisions are actually built

Article 24(4)(chi) covers anyone convicted of violating the Narcotics and Psychotropics Control Act, the Act on Regulation of Cannabis Cultivation, the Opium Act, the Stimulants Control Act, the Anti-Drug Special Provisions Act, or Chapter XIV of Part II of the Penal Code. Because the outcome of the criminal process, the conviction, is built into the requirement, intent falls to be assessed first within the criminal trial.

Even within Article 24(4), however, the requirements are not framed uniformly. Article 24(4)(ri) covers, in addition to those listed in (ni) through (chi), a person sentenced to life imprisonment or to imprisonment (拘禁刑) for more than one year, while excluding those whose sentences have been suspended in their entirety and others. Article 24(4)-2 applies where a person residing under a status of residence in Appendix I (別表第一) is sentenced to imprisonment for certain offences. So some categories are mediated by the outcome of a criminal trial, while in others the administrative authority itself finds the facts and decides whether the ground applies. It is in the latter setting that the reach of the culpability principle becomes acute.

What the culpability principle is, and why it arises for an administrative disposition

No punishment without culpability is a foundational principle of criminal law. The idea is that a sanction may be imposed only where there is something for which the actor can be blamed, and it is bound up with the constitutional guarantee of due process.

The question is whether the principle stops at punishment, or should extend to administrative dispositions that impose serious substantive detriment. Our concern is that there are situations which cannot be fully explained by drawing a formal line between administrative dispositions and criminal penalties. Where people in materially similar situations are treated differently, there is also room to examine the matter under the equality guarantee in Article 14(1) of the Constitution. We are not suggesting that a settled interpretation exists.

About the pending litigation

In proceedings brought to protect a woman wrongly accused of promoting illegal employment and facing deportation, attorney Daisuke Matsumura is currently 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 (在留特別許可), in circumstances with no precedent for a finding of promoting illegal employment.

Since the case is pending, there is nothing we can say about its outcome. We offer no prediction of success and no preview of any judgment. What we do want to convey is the fact itself: a proposition long treated as beyond question has been put before a court.

Where does intent become the issue in drug cases?

Drug cases are a classic setting for disputes about intent. Carrying a package without being told what was inside; a bag held for someone else that turned out to contain drugs; a product bought that contained a controlled substance. In each, the external facts are hard to dispute, while knowledge decides the outcome.

In such cases, contesting intent thoroughly at the criminal stage and preserving the resulting evidence and arguments has a double value. First, it shapes the outcome of the criminal proceedings themselves. Second, even if the result is unfavourable, it provides the foundation for arguing the facts in the immigration proceedings that follow.

• Whether the circumstances of the request and the payment offered are consistent with an ordinary delivery
• The practical handling of the goods: how they were handed over, where they were kept, whether anything was locked
• The circumstances of the travel or movement, who paid for it, and the relationship with any companions
• When and where a product was bought, and whether anything was said about its contents

The three lines of defence

We design a foreign national's drug case as three lines of defence. The first is obtaining a decision not to prosecute (不起訴処分) in the criminal case, by examining whether the elements of the offence are made out, whether intent existed, and whether the evidence was lawfully obtained, with the aim of resolving matters before charges are laid. The second is contesting, in the deportation procedure, whether a ground for deportation exists at all; the culpability question discussed in this article belongs here.

The third is special permission to stay. Here we build the case around the factors listed in Article 50(5) and argue consistency with previously published grants. The three are not separate exercises: the record built at each earlier stage supports the one that follows.

How our office works, and related matters

Attorney Daisuke Matsumura handles every stage personally, from the first detention visit through to the close of trial. Where intent is contested, the detail of the client's account and the reconstruction of events are everything, so there is practical value in the same person staying with the case. 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.

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. We have also acted in international criminal matters and in lay judge cases. Past matters turned on their own particular facts, and no similar outcome can be promised.

A practice that has continued for a long time is not necessarily right. How far the element of culpability should be required for a disposition with consequences as heavy as deportation is a question now before the courts, and we will not offer any prediction of how it will be answered. But the fact that the point is being litigated is worth knowing for anyone in the same position. 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