Reading the Immigration Agency's Published Cases: Using the Equality Principle in a Special Permission Application

Look into special permission to stay (在留特別許可) and you soon run into the phrase 'the Minister's broad discretion', and there many people stop. Does broad discretion mean there is no room for your arguments to land? It does not. 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. These are a body of precedent in which the administration itself concluded that permission was warranted. This article explains how to read those published cases and how to turn them into arguments, using Article 50(5) of the Immigration Control and Refugee Recognition Act (入管法) and the equality guarantee in Article 14(1) of the Constitution as the two handles.

Key points

• Since 2004 the Immigration Services Agency has published, year by year, examples of grants and refusals of special permission to stay.
• Those published cases are a body of precedent in which the administration itself concluded that permission was warranted, and can be used as source material for argument.
• Now that Article 50(5) lists the factors in law, comparison with the published cases can be carried out more systematically.
• Where permission has been granted in cases with similar circumstances, whether it is rational to treat this case differently can be questioned under the equality guarantee in Article 14(1) of the Constitution.
• A record of grants in published cases does not guarantee permission; the outcome still turns on the individual circumstances.

If someone with similar circumstances was granted permission, will I be too?

We cannot say that you will. Decisions on special permission to stay turn on individual circumstances, and the scheme does not guarantee the same outcome as a precedent. We do not offer explanations designed to raise hopes on this point.

The published cases do have a real use, though. They tell you concretely what kinds of circumstances the administration has previously regarded as warranting permission, which lets you work backwards to what has to be shown in your case for the argument to be in play at all. They function as a map that keeps you from guessing, and that focuses the gathering of evidence.

What exactly are the published cases?

Since 2004 the Immigration Services Agency has published, organised by year, cases in which special permission to stay was granted and cases in which it was not. Each is set out briefly, covering matters such as the nature of the violation, the length of residence in Japan, family composition, how the violation came to light, and conduct.

The write-ups are, however, quite abstract, out of regard for personal information and for the reasons behind the disposition. Searching for a case that matches yours in every detail is therefore not a realistic way to read them. The comparison proceeds on substantive similarity: which elements can be read as having supported the decision.

How this connects to the factors in Article 50(5)

Article 50(5) directs the Minister of Justice 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, together with domestic and international conditions, the effect on illegal residents in Japan and other circumstances.

That the factors are now spelled out in statute is no small thing. It means the published cases can be broken down along those same headings, and the circumstances of your own case set out within the same frame. What used to drift towards impressions can now be structured item by item.

• Whether the reasons for wishing to remain are borne out by the realities of daily life
• Whether there are concrete facts of cohabitation, financial support and childcare within the family
• How the length of residence and the legal status during that period have accumulated
• Whether the assessment of the facts giving rise to the ground for deportation reflects the substance of the case
• Whether the circumstances calling for humanitarian consideration are supported by objective evidence

Framing the argument under Article 14(1) of the Constitution

Where permission has previously been granted in cases with materially similar circumstances, yet this case alone is treated differently, the question becomes whether the distinction has a rational basis. That question can be framed as an argument under Article 14(1) of the Constitution, which guarantees equality under the law.

In practice, simply listing similar cases is not enough. Which elements of a published case can be read as having supported the grant? Are those elements present here? Where an element is missing, what other circumstances make up for it? Only after working through those three steps does the argument stand up as a challenge to the rationality of the distinction.

The hard part in drug cases, and the foothold that remains

Frankly, drug cases start from an unfavourable position. Of the factors in Article 50(5), both conduct and the facts giving rise to the ground for deportation weigh heavily against the applicant. Concealing that reality and offering an optimistic forecast would not be an honest explanation.

There is, however, a foothold in the structure of the provisions that is easily missed. The proviso to Article 50(1) imposes a heightened test, permission only where refusing it would be found lacking in humanitarian consideration in light of special circumstances, on a person sentenced to life imprisonment or to imprisonment (拘禁刑) for more than one year (excluding those whose sentences are suspended in their entirety and others), and on a person falling under Article 24(3)-2, (3)-3, (4)(ha) or (4)(o) through (yo). Article 24(4)(chi), the provision covering drug offences, is not in that list. Unless the sentence exceeds one year of actual imprisonment, the assessment is made under the ordinary framework rather than the heightened one.

How the published cases are actually mined

The work itself is painstaking. You read through each year's published material, pick out the cases sharing elements materially close to your own, and rearrange those elements under the headings in Article 50(5). Then you identify what your case is missing and turn that into a list of documents to obtain.

It is not unusual for something unexpected to emerge in the process: a fact of ordinary life that the client or the family assumed to be unremarkable turns out to overlap with an element that the published cases have treated as significant. That is why we begin by asking carefully about the details of daily life.

• Read through the published material year by year and extract cases of a type close to yours
• Break the extracted cases down under the headings in Article 50(5)
• Set out your own circumstances in the same frame, making the similarities and differences visible
• Identify the evidence needed to make up for the differences, and plan how to obtain it

How our office works, and related matters

At Funado International Law Office, 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. Renewals and changes of status of residence (在留資格) after the criminal process ends are handled together with an administrative scrivener we work with.

In one matter, a client who had come to Japan as a tourist lost their status of residence and was arrested and prosecuted for overstaying. Because the marriage and the acknowledgment of paternity had not been completed, the application was initially not accepted; we negotiated with the authorities from a constitutional standpoint until the marriage and acknowledgment were established, gathered favourable evidence in conditions where almost no official documents from the country of nationality existed, and analysed the immigration authorities' previously published grants, obtaining special permission to stay on a single application. In the case of a woman wrongly accused of promoting illegal employment, we are pursuing litigation testing the reach of the principle of culpability, and in that case obtained special permission to stay in circumstances with no precedent. Past matters turned on their own particular facts, and no similar outcome can be promised.

The published cases are a record of its own decisions that the administration itself has left behind. Reading the elements they disclose with care, and setting out your circumstances along the framework the statute provides, is how you avoid coming to a halt in front of the phrase 'broad discretion'. No result can be promised, but there is a real route by which arguments can be delivered. 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