You Can Assess Your Chances of Special Permission to Stay in Japan: Reading the Published Cases and Addressing the Negative Factors

"Special Permission to Stay (在留特別許可) is within the Minister of Justice's discretion, so no one can tell you anything until you apply." People facing deportation proceedings, and their families, are often given this explanation and left with nowhere to turn. It is not accurate. Since 2003, the Immigration Services Agency (出入国在留管理庁, formerly the Immigration Bureau of the Ministry of Justice) has published, on a continuing basis, both the cases in which special permission to stay was granted and the cases in which it was refused. Our office has organised these published cases into a knowledge base that can be searched by the features of a given case. Line up the cases that stand on the same ground as yours, and the likely outcome can be read with considerable accuracy. Most unfavourable circumstances, too, can be addressed, provided the sequence and the timing are not mistaken.

Discretion, but not discretion without direction

Under the 2023 amendment to the Immigration Control and Refugee Recognition Act (令和5年改正入管法), in force since 10 June 2024, special permission to stay, previously a benevolent measure granted on the authorities' own initiative, now has a formal application procedure (Article 50, paragraph 1 of the Immigration Act), and the circumstances to be taken into account are set out in the statute itself (Article 50, paragraph 5): reasons for wishing to remain, family relationships, conduct, the circumstances under which the person came to Japan, the length of residence and the legal status held during that time, the facts giving rise to the ground for deportation, and the need for humanitarian consideration. The guidelines revised in March 2024 (令和6年3月改定ガイドライン), applied from 10 June of the same year, set out the positive and negative factors. The decision turns on whether the positive factors "clearly outweigh" the negative ones.

When the framework and the materials for the decision have been made public to this extent, there is no reason to settle for "you won't know until you try." Applying without having worked through what has been published is what damages the client's interests.

What our case search uses to line the cases up

Our office maintains the published cases as a knowledge base and extracts the cases closest to a client's own situation along the following axes.

• The type of case (spouse a Japanese national, spouse a foreign national with lawful status, out of status together with a child, or another pattern)
• The ground for deportation, the offence and nature of the violation, and the content and sentence of any criminal disposition
• Length of residence in Japan and length of the violation, and how the matter came to light (voluntary appearance and report, or detection and arrest)
• Family composition, the child's place of birth and schooling history, and the residence status of the person and the spouse
• Conduct, and whether there are circumstances calling for humanitarian consideration

Extracting one side alone is not enough. We assemble several granted cases that most closely match the situation and, at the same time, line up refused cases with similar circumstances, in order to identify what separated the two. It is this comparison that supports both the assessment of the prospects and the design of the arguments that follow.

What the published cases actually show

What follows describes tendencies, not guarantees about any individual case. Even so, its significance for setting a strategy is not small.

First, how the matter came to light. Most granted cases involve people who came forward and reported themselves to the authorities. Cases granted where the matter began with detection or arrest are concentrated among those with exceptional circumstances, such as being a victim of human trafficking or having custody and care of a biological child.

Second, the level of the sentence. A person who has received an unsuspended sentence of imprisonment (拘禁刑, the unified custodial sentence that replaced the former separate penalties from June 2025) exceeding one year falls under the proviso to Article 50, paragraph 1, and may be granted permission only where there are "special circumstances such that refusing permission to stay would be found to lack humanitarian consideration." In the published cases granted under that proviso, the sentences all fall within the range of one year and two months to one year and six months, while a case involving an unsuspended sentence of two years and six months was refused even though the person had custody and care of a biological child of Japanese nationality. The dividing line is best understood as sitting at around two years.

Third, the person's own residence status. Those granted permission are concentrated among people with the settled ties of Appended Table II (別表第二) status or something comparable: permanent residents (永住者), long-term residents (定住者), spouses of Japanese nationals (日本人の配偶者等), and people of Japanese descent born in Japan. Where the person holds an Appended Table I (別表第一) status such as Dependent (家族滞在) or Engineer/Specialist in Humanities/International Services (技術・人文知識・国際業務), and the case involves a criminal disposition, the published cases show refusals lining up even where the sentence was suspended. The belief that "the sentence was suspended, so I can stay in Japan" is at its most dangerous in this category.

Fourth, duration and the interests of the child. A prolonged period of unlawful residence was, for the first time, expressly positioned as a negative factor in the revised guidelines. Protecting the child's interest in living in Japan together with the family, by contrast, is expressly identified as a positive factor. The presence of a child who has received a substantial period of education at a Japanese primary or lower secondary school has in fact operated in favour of applicants in the granted cases.

Unfavourable circumstances can be addressed

Being able to read the tendencies means being able to see where to act. The measures our office actually considers include the following.

• Pursuing a decision not to prosecute at the criminal stage. In some categories, such as drug offences, a conviction is itself a ground for deportation even where the sentence is suspended (Article 24, item 4 (chi) of the Immigration Act). A suspended sentence should not be treated as the final objective.
• Contesting the sentence itself. Keeping the line drawn by the proviso in mind changes both the objectives of the criminal defence and the plan for evidence. The essential point is not to treat the criminal case and the immigration procedure as separate matters.
• Designing whether and when to appear and report to the authorities. Do you want to return home, or to remain in Japan? Fix the goal first, then work backwards from it.
• Contesting the reach of the negative factors. The offences appearing in the refused Appended Table I cases are centred on matters going directly to the integrity of immigration administration and of official documents: facilitating unlawful employment, use of forged residence cards, procuring prostitution. There is a solid argument that it is not appropriate to apply that body of cases as it stands to property offences or negligence offences.
• Raising the question whether intent or negligence should be required for a ground for deportation to be established. This is a point our office is currently litigating.
• Invoking the principle of equality directly. Where permission has been granted in cases with comparable circumstances, refusing permission in this case alone amounts to different treatment without reasonable grounds, contrary to Article 14, paragraph 1 of the Constitution. The argument becomes persuasive only when it rests on the concrete foundation of the published cases extracted.
• Proving concretely, through documentary evidence and witnesses, the child's birth and schooling history and the reality of the couple's shared life. On the genuineness of a marriage, it is sometimes effective to build the argument around the very fact that a character witness appeared at the criminal trial.

About our office, and past results

Daisuke Matsumura of Funado International Law Office (Toshima-ku, Tokyo) concentrates his practice on criminal defence for foreign nationals and on immigration procedures.

On special permission to stay, in a case where a client who had come to Japan as a tourist had a child with a Japanese woman, lost his residence status, and was arrested and prosecuted for unlawful residence, the office negotiated the marriage and acknowledgement of paternity into effect after the authorities had initially refused those filings, gathered favourable evidence under the difficult condition that almost no official documents were available from the country of nationality, analysed the immigration authorities' past granted cases, and obtained special permission to stay on a single application.

In another matter, involving a woman facing deportation on a charge of facilitating unlawful employment, the office brought proceedings challenging the established practice that a ground for deportation requires neither intent nor negligence, contesting the reach of the principle of individual culpability through to the appellate stage; special permission to stay was subsequently granted. It illustrates that even in a category where the published cases show refusals lining up, the outcome may move depending on how the case is constructed.

On the criminal side, results include an acquittal for a client prosecuted under the Stimulants Control Act (possession for the purpose of profit), and decisions not to prosecute on all counts where the client had been re-arrested several times as a courier in an organised fraud operation.

The defining feature of our office is that Daisuke Matsumura personally handles every stage himself, from the first visit at the detention facility through to the close of trial; the work is not delegated to clerical staff or junior lawyers. For Chinese, a dedicated interpreter experienced in cases involving foreign nationals is on staff, so that clients can use an interpreter working for them, separate from the interpreter appointed by the investigating authorities. For other languages, we arrange an interpreter according to the requirements of the case. For renewal or change of residence status after the criminal proceedings conclude, we work with an affiliated administrative scrivener (gyoseishoshi).

Note: past results reflect the individual circumstances of those cases and do not guarantee a similar outcome.

Closing

With special permission to stay, acting after the result has come in is too late. The criminal proceedings, the violation examination, and the application each have their own window in which action can be taken. Knowing where your own case sits is the first step. At the initial consultation, we search for the closest published cases and explain both the prospects and the concrete measures available to address the unfavourable circumstances.

This article is general commentary based on information available as of August 2026. For advice on an individual case, please consult a lawyer directly.

About the author

Daisuke Matsumura, Attorney at Law
Dai-ichi Tokyo Bar Association (registration number 59077; admitted 2019)
Funado International Law Office (Fuse Building Main Wing 3F, 3-4-10 Takada, Toshima-ku, Tokyo)
Concentrates on criminal defence for foreign nationals, principally clients of Chinese nationality, and on immigration procedures. Past results include an acquittal on a charge under the Stimulants Control Act (possession for the purpose of profit), decisions not to prosecute in an organised fraud case, and the grant of special permission to stay in a case regarded as difficult.

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Funado International Law Office
Website: https://matsumura-lawoffice.jp/
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