Overstaying in Japan by a Few Months: What Criminal Penalty Can You Expect?

2026/08/27

Your period of stay expired a few months ago, and you are still in Japan. If that is your situation, you are probably checking the date on your residence card again and again, thinking on the one hand that it has only been a short time and cannot be too serious, and worrying on the other hand that if you come forward now you will be arrested on the spot. With no one to talk to, the days keep passing. We understand that feeling well, having handled many consultations of exactly this kind. This article explains, following the text of the Immigration Control and Refugee Recognition Act (hereafter the "Immigration Control Act"), how a criminal disposition is decided when an overstay has lasted only a few months, and how that relates to whether you can remain in Japan.

Is a few months of overstaying still a crime in Japan?

Yes. Regardless of how long or short the period is, the state of remaining in Japan after your period of stay has expired is itself a criminal offence.

The basis is Article 70, paragraph (1), item (v) of the Immigration Control Act, which covers "a person who remains in Japan beyond the period of stay (including the period during which the person may stay in Japan under the provisions of Article 20, paragraph (6)) without obtaining an extension or change of the period of stay." The statutory penalty, set out in the main clause of that paragraph, is a kōkinkei (custodial sentence) of not more than 3 years, or a fine of not more than 3,000,000 yen, or both.

The point to grasp is that this statutory penalty is exactly the same whether the overstay has lasted one month or ten years. There is no mechanism in the statute that makes the offence itself lighter because the period was short. Overstaying is not only an administrative problem about your residence status; it is a crime subject to criminal punishment.

Does a short overstay lead to a lighter criminal disposition?

The statutory penalty does not change, but two things do: which disposition the public prosecutor chooses, and the sentencing range if the case goes to trial.

In practice, the length of the overstay is treated as a central element of the circumstances of the offence, meaning how long the unlawful state was allowed to continue, and it bears directly on how heavy the disposition is. Cases in which the period is limited to a few months, the person has voluntarily appeared at a regional immigration services bureau, and the basis of daily life such as housing, income and family relationships is clear, tend to move toward a relatively lighter disposition. By contrast, cases in which the period runs to several years, unauthorised work is added on top, and further violations such as possession of forged identification documents are involved, tend to move toward a heavier disposition.

This is a tendency, not a rule, and outcomes vary from case to case. We cannot say that a few months will always end in a fine, or that non-prosecution is guaranteed. Even within the same few months, the circumstances of entry into Japan, whether and how the person worked, any prior record, and the consistency of the person's own account will all change the outlook.

If the criminal disposition is light, can I stay in Japan?

No. How heavy the criminal disposition is, and whether you can continue to reside in Japan, are two separate questions.

Article 24, item (iv)(b) of the Immigration Control Act makes "a person who remains in Japan beyond the period of stay without obtaining an extension or change of the period of stay" a ground for deportation. Even if the criminal case ends in non-prosecution, in a fine, or in a suspended sentence, the fact that you fall under Article 24, item (iv)(b) does not disappear. Deportation proceedings run as a separate track alongside the criminal proceedings.

The reverse direction also matters. The proviso to Article 50, paragraph (1) provides that, for a person sentenced to a kōkinkei (custodial sentence) for life or for a term exceeding one year (excluding a person granted full suspension of execution of the sentence, and a person granted partial suspension whose unsuspended portion is one year or less), among others, special permission to stay may be granted "only when it is found that there are special circumstances such that refusing permission to stay in Japan would be lacking in humanitarian consideration." In other words, once the criminal disposition becomes an unsuspended custodial sentence exceeding one year, the bar for special permission to stay rises sharply. It is hard to imagine reaching that point on a few months of overstaying alone, but this structure is precisely why the effort to obtain a lighter criminal disposition and the effort to remain in Japan must be designed as one integrated strategy from the very first step.

Can I leave under a departure order if I only overstayed a few months?

You can, if the requirements are met. All five requirements of Article 24-3 of the Immigration Control Act must be satisfied.

Falling under either of the following (item (i)). (a) A person who, before the commencement of a violation investigation under Article 27, voluntarily appeared at an immigration services office with the intention of departing from Japan promptly. (b) A person who, after the commencement of a violation investigation but before receiving the notice under Article 47, paragraph (3), stated to an immigration inspector or immigration control officer that they intend to depart from Japan promptly.
Not falling under any of Article 24, items (iii) through (iii)-5, item (iv)(c) through (iv)(w), item (viii) or item (ix) (item (ii)).
Not having been sentenced to a kōkinkei (custodial sentence), after entering Japan, for offences of breaking into a residence; counterfeiting of currency, documents, securities, or electromagnetic records of payment cards; gambling; homicide; injury; unlawful capture and confinement; kidnapping and abduction; theft and robbery; fraud and extortion; or handling of stolen property; for offences under Articles 1, 1-2 or 1-3 of the Act on Punishment of Physical Violence and Others; under the Act for Prevention of Larceny; under Articles 15 or 16 of the Act on Prohibition of Possession of Special Picking Tools; under Articles 2 or 6, paragraph (1) of the Act on Punishment of Acts Inflicting Death or Injury on Others by Driving a Motor Vehicle; or under Article 22 of the Act on Prevention of Disposal of Stolen Specified Metal Products (item (iii)).
Never having been deported from Japan, and never having departed under a departure order issued under Article 55-85, paragraph (1) (item (iv)).
Being reasonably expected to depart from Japan promptly (item (v)).

When a departure order is issued, the supervising immigration inspector orders prompt departure and sets a departure deadline within a period not exceeding 15 days (Article 55-85, paragraph (1)). Conditions such as restrictions on residence and area of movement may be attached (paragraph (3) of the same Article). Unlike deportation proceedings, departure order proceedings do not presuppose detention.

When would I be able to come back to Japan?

It depends on which procedure you leave Japan under, and the difference is large: one year, five years, or ten years. Article 5, paragraph (1), items (ix) and (x) provide as follows.

A person who departed under a departure order: 1 year from the date of departure (item (ix)(e)).
A person falling under Article 24-3, item (i)(b) (someone who expressed the intention to depart only after the violation investigation had begun) who departs under a departure order and then seeks to engage in activities as a temporary visitor: 5 years from the date of departure (item (ix)(f)).
A person who was subject to deportation but received a decision under Article 52, paragraph (5) and departed voluntarily by the deadline (excluding temporary visitor purposes): 1 year from the date of departure (item (ix)(b)).
A person who was deported and had no prior record of deportation or departure order: 5 years from the date of deportation (item (ix)(c)).
A person who was deported and already had a record of deportation or departure order: 10 years from the date of deportation (item (ix)(d)).
A person deported for falling under Article 24, items (iv)(e) through (iv)(w): no fixed period (Article 5, paragraph (1), item (x)).

An overstay of only a few months sits at the point on this map where the widest range of options is still open.

If I want to stay in Japan, does a short overstay help?

It is one favourable circumstance, but it is not enough on its own.

Special permission to stay is governed by Article 50. Even where a person falls within those subject to deportation, the Minister of Justice may, upon application by the foreign national or ex officio, grant special permission to stay if the person falls under any of the items of paragraph (1). Most overstay cases are judged under item (v), "when the Minister of Justice otherwise finds circumstances warranting special permission to stay."

The heightened requirement in the proviso to Article 50, paragraph (1) described above applies to unsuspended custodial sentences exceeding one year, and to persons falling under Article 24, items (iii)-2, (iii)-3, (iv)(c), or (iv)(e) through (iv)(w). A case involving only unlawful residence under Article 24, item (iv)(b) is not subject to that proviso. For a case of a few months' overstay and nothing more, this is an important point in your favour.

The matters to be considered are listed in Article 50, paragraph (5): the reasons for wishing to stay, family relationships, conduct, the circumstances of entry into Japan, the length of residence in Japan and the legal status held during that time, the facts constituting the ground for deportation, the need for humanitarian consideration, and in addition domestic and international circumstances and the effect on illegal residents in Japan, together with other circumstances.

The Guidelines on Special Permission to Stay, revised in March 2024 and in force from 10 June 2024, position special permission to stay as "a measure taken exceptionally and as a matter of grace toward a foreign national who should be deported from Japan." At the same time, the Guidelines expressly state that the fact that "the foreign national voluntarily appeared at a regional immigration services bureau in order to report their illegal residence" is considered a positive factor. Conversely, a prolonged period of illegal residence is evaluated as a negative factor. A stage where the period is still only a few months is a stage where that negative factor has not yet grown large.

Note the procedural points as well. An application for special permission to stay is made to the Minister of Justice, through the procedure prescribed by Ministry of Justice ordinance, by a foreign national detained under a written detention order or subject to a decision on supervision measures (Article 50, paragraph (2)); and after a written deportation order has been issued, no application can be made (paragraph (3)). Before the right to apply arises, what can be done is to seek the exercise of the authorities' own discretion.

What it means to act before you are detected

As set out above, for someone at the few-month stage, the biggest fork in the road is whether you voluntarily appeared before a violation investigation began.

If you appear voluntarily before the investigation starts, you fall under Article 24-3, item (i)(a), and, provided the other requirements are met, you may be eligible for a departure order. In that case the period of denial of landing after departing under the order is one year from the date of departure (Article 5, paragraph (1), item (ix)(e)). If instead you state your intention to depart only after the violation investigation has begun (item (i)(b)), the period becomes five years should you later seek to come to Japan as a temporary visitor (Article 5, paragraph (1), item (ix)(f)). And if, because of how the case came to light, the requirements of items (ii), (iii) or (iv) of Article 24-3 are not met, a departure order is unavailable altogether, and the case proceeds as deportation with a five-year bar (item (ix)(c)), or ten years where there is a prior record (item (ix)(d)).

The same holds if you hope to remain. The fact of having come forward voluntarily is exactly what the Guidelines identify as a positive factor. A few months is a period in which these choices are still in your hands. While you wait, the available paths quietly narrow.

About our office

Funado International Law Office is located at Fuse Building Main Wing 3F, 3-4-10 Takada, Toshima-ku, Tokyo. Our principal areas of focus are criminal defence for foreign nationals and immigration procedures, with a client base centred on Chinese nationals. Daisuke Matsumura, the attorney in charge, is a member of the Dai-ichi Tokyo Bar Association (registration number 59077, admitted 2019).

Three features define how we work. First, Mr. Matsumura personally handles every stage himself, from the first visit to the police station through to the close of trial; the work is not delegated to clerks or junior attorneys. Second, a dedicated in-house Chinese interpreter experienced in cases involving foreign nationals is available at the office. For languages other than Chinese, we arrange an interpreter according to the needs of the case. Having an interpreter who acts for the client, separate from the interpreter appointed by the investigating authorities, matters in situations where a fine shade of meaning in a statement can change the outcome. Third, for matters after the criminal proceedings end, such as extension or change of residence status, we work with an affiliated administrative scrivener so that everything is handled in one place.

Two related matters we have handled:

Special permission to stay obtained in a single set of proceedings in a case regarded as difficult. A client who had come to Japan as a tourist had a child with a Japanese woman, but lost his residence status and was arrested and prosecuted for illegal residence. The marriage and acknowledgement of paternity had not been completed and were initially refused by the authorities. Mr. Matsumura negotiated with the authorities from a constitutional standpoint, secured the marriage and acknowledgement, and conducted defendant questioning and witness examination with the immigration-law criminal trial in mind. Even where official documents from the country of nationality were almost entirely unavailable, favourable evidence was assembled, and by analysing past grants by the immigration authorities, special permission to stay was obtained in one round of proceedings.

Special permission to stay granted to a woman who faced deportation. A woman was wrongly accused of promoting illegal employment and faced deportation. Against the established practice that grounds for deportation require neither intent nor negligence, we brought litigation testing the reach of the principle of responsibility and pursued it to the appellate level. Special permission to stay was subsequently granted by the immigration authorities.

The first consultation is free of charge. Fees are quoted according to the circumstances of each case.

Closing

A stage where the overstay has lasted only a few months is, legally speaking, the stage at which the widest range of options remains. The statutory penalty itself does not change with the length of the overstay, but the likely prosecutorial disposition, whether a departure order is available, whether you can return to Japan in one year or five, and the prospect of remaining here at all, will all be shaped by what you do from now on. Which of your own circumstances can be put to use differs from case to case.

This article is a general explanation. For your individual case, please consult a lawyer directly. Past results are based on the particular circumstances of each matter and do not guarantee a similar outcome.

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)

Principal areas of focus: criminal defence for foreign nationals and immigration procedures, with a client base centred on Chinese nationals.

Results include an acquittal in a case under the Stimulants Control Act (possession for the purpose of profit), a non-prosecution disposition in a special fraud case, and the grant of special permission to stay in a case regarded as difficult.

Contact

Funado International Law Office

Website: https://matsumura-lawoffice.jp/

WeChat ID: matsumura1119

Overstaying in Japan by a Few Months: What Criminal Penalty Can You Expect?