Overstaying in Japan for One Year or More: What Criminal Penalty to Expect and How It Affects Your Right to Stay

Your period of stay expired a year ago, or several years ago. At first you told yourself you would sort out the paperwork right away, but then work started, a family formed, life began to run on its own, and time simply passed. We hear this story often. The longer the overstay continues, the more people convince themselves that it is too late, or that walking into an immigration office now would mean going straight to prison. Understanding exactly how Japanese law treats the situation is the first step toward getting your options back. This article explains, article by article, what happens on the criminal side and on the immigration side when an overstay (fuhō zanryū, 不法残留) has lasted from one year to several years.

Does the offence itself become more serious once the overstay passes one year?

No. Neither the offence nor the statutory penalty changes. Remaining in Japan beyond your authorised period of stay is an offence under Article 70, paragraph (1), item (v) of the Immigration Control and Refugee Recognition Act (the Immigration Control Act). That provision 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 penalty set out in the main clause of Article 70, paragraph (1) is a kōkinkei (custodial sentence) of not more than three years, a fine of not more than 3 million yen, or both. That is the same whether the overstay lasted a few months or several years.

What changes is not the statutory penalty but the prosecutor's choice of disposition (indictment, non-prosecution, or a summary fine) and the sentencing range if the case goes to court. In practice, the length of the overstay is treated as a central factor in the seriousness of the offence, because it measures how long the unlawful situation was allowed to continue.

What kind of disposition is likely when the overstay has lasted one to several years?

Outcomes vary considerably from case to case, and no single answer is possible. As a general tendency, however, a case in this range is more readily assessed as having sustained the unlawful situation over a long period than a case of only a few months, and the disposition tends to move in a heavier direction.

Length alone does not decide the outcome. The following circumstances are weighed together.

• Whether the person worked after the period of stay expired, and in what manner
• Whether other violations are layered on top, such as a forged residence card or documents in another person's name
• Whether the person came forward voluntarily to a regional immigration services bureau, or was detected through enforcement
• Whether there is a clear basis of life in Japan (housing, family, children in the person's care)
• Any prior convictions or prior record, and general conduct

Cases that run long, involve unauthorised work and add further violations such as forged documents tend toward heavier dispositions; cases with no additional violations, where the person came forward voluntarily and daily life and family relationships are clear, tend toward lighter ones. That is the broad map. Specific numbers of years or percentages cannot be attached to it, and readers should be cautious of any explanation that offers such figures.

How does having worked after the period of stay expired affect the outcome?

In most cases it pushes the assessment toward a heavier disposition, because the person did not merely remain in Japan but earned income and sustained daily life, which is read as actively maintaining the unlawful situation.

Two situations must be kept apart. If a person departed from the activities permitted by their original status of residence and engaged exclusively in some other income-earning activity, that may amount to exclusive engagement in unauthorised activities under Article 70, paragraph (1), item (iv), and as a ground for deportation it falls under Article 24, item (iv)(a). By contrast, simply remaining after the period of stay has expired is a matter of Article 70, paragraph (1), item (v) and Article 24, item (iv)(b). In real cases the two often overlap: unauthorised work begins while the status is still valid, and the period of stay then expires. The sequence has to be reconstructed accurately, point by point in time.

On the employer's side, Article 24, item (iii)-4 (promotion of unauthorised employment) may apply. That provision is triggered by the conduct itself and does not require a criminal conviction. Anyone who has been involved in running a business or introducing workers needs to consider this as well.

Does keeping a resident registration or health insurance help?

Not by itself, but such records can matter as evidence of the actual pattern of daily life. In overstays of one to several years, it is common for the person to have kept paying rent, sending children to school and living within a community after losing their status of residence. These outward facts can concretely support the factors listed in Article 50, paragraph (5): the period of stay in Japan, family relationships, conduct, and the need for humanitarian consideration, all of which are examined when special permission to stay is considered.

One caution is essential. How resident registration and insurance eligibility are handled after a status of residence is lost varies by case. And if false declarations were filed, or documents in another person's name were used, that is a separate offence in itself and pushes the disposition in the opposite direction. Before submitting any document as "favourable evidence," go through each item with a lawyer to confirm that it genuinely helps and does not create a new problem.

Will a Japanese spouse or child be taken into account in the criminal case?

Yes. In criminal proceedings, the care of family members, the actual living situation, and whether there is a guarantor willing to supervise the person are all treated as mitigating circumstances affecting sentencing and the choice of disposition.

The critical point, however, is that a light criminal outcome and the ability to remain in Japan are two separate questions. Even with a non-prosecution decision or a suspended sentence, deportation proceedings continue in their own track as long as Article 24, item (iv)(b) applies. At the same time, family relationships are one of the factors expressly listed in Article 50, paragraph (5) for special permission to stay. In other words, the materials prepared during the criminal case (documents proving marriage and parentage, statements describing day-to-day care, records of the family's circumstances) carry over directly into the immigration process. That is precisely why the work of reducing the criminal penalty and the work of obtaining special permission to stay must be designed as a single strategy from the very first steps.

If the sentence is suspended, can I simply stay in Japan?

No. "The sentence was suspended, so I am safe" is one of the most common misunderstandings we encounter.

It is true that Article 24, item (iv)(i) makes deportable a person sentenced to life imprisonment or to a kōkinkei (custodial sentence) exceeding one year, while expressly excluding a person granted a full suspension of execution of the sentence (and a person under partial suspension whose unsuspended portion is one year or less). So a judgment of, say, one year and six months suspended for three years does not fall under item (iv)(i). But a person who has overstayed is already deportable under Article 24, item (iv)(b) from the outset. Not falling under item (iv)(i) is no reason to escape deportation proceedings.

There is a genuinely favourable point here as well. The proviso to Article 50, paragraph (1) imposes an added requirement on persons sentenced to life imprisonment or to a custodial sentence exceeding one year (excluding those granted full suspension and the like) and on certain other categories: special permission may be granted "only where there are special circumstances such that refusing permission to stay in Japan would be found to lack humanitarian consideration." A case involving only unlawful residence under Article 24, item (iv)(b) is not subject to that proviso. Conversely, once an actual custodial sentence exceeding one year is imposed, the added requirement applies and the prospects for special permission become far more difficult. In a mid-range case of one to several years, the goal of the criminal defence is set by working backwards from that line.

When and how is special permission to stay actually sought?

Article 50, paragraph (1) provides that even where a person is subject to deportation, the Minister of Justice may grant special permission to stay, on application by the foreign national or ex officio, if one of the items in that paragraph applies. Most overstay cases are examined under item (v): where the Minister finds other circumstances warranting special permission to stay.

Timing is constrained. Under Article 50, paragraph (2), an application may be filed by a foreign national detained under a written detention order, or one subject to a supervision measure decision. Before that stage there is no right to apply, and the work consists of urging the Minister to act ex officio. Under Article 50, paragraph (3), no application may be filed once a written deportation order has been issued. Article 50, paragraph (4) provides that special permission may be granted only after the person has accepted the finding under Article 47, paragraph (3) or the determination under Article 48, paragraph (8), or after the Minister has ruled that an objection is without grounds.

The sequence runs: violation investigation (Article 27 onward), a written detention order (Article 39) or supervision measure decision (Article 44-2, paragraph (7)), examination by an immigration inspector (Article 45 onward), a finding (Article 47, paragraph (3)), a request for a hearing (Article 48), a determination by a special inquiry officer (Article 48, paragraph (8)), an objection to the Minister of Justice (Article 49), and then either special permission to stay (Article 50) or a written deportation order (Article 51). Where special permission is refused, Article 50, paragraph (10) requires prompt written notice stating the reasons. Once a deportation order is issued, the remaining route is judicial: an action to revoke the disposition and an application for a stay of execution.

What it means to act before enforcement finds you

A case of one to several years sits in the middle: no longer short, but not yet decisively long. Whether you act at this stage will substantially change whether you can maintain any connection with Japan afterwards. The reason lies in the statute itself.

Article 24-3 sets out who qualifies for a departure order. A foreign national falling under Article 24, item (iv)(b) (unlawful residence) or certain other items qualifies only if all five of the following are met. First, the person either appeared voluntarily at a regional immigration services bureau, before the violation investigation under Article 27 began, with the intention of departing promptly (item (i)(a)), or, after the investigation began but before receiving the notice under Article 47, paragraph (3), stated to an immigration inspector or immigration control officer an intention to depart promptly (item (i)(b)). Second, the person falls under none of Article 24, items (iii) through (iii)-5, items (iv)(c) through (iv)(y), item (viii) or item (ix). Third, since entering Japan the person has not been sentenced to a custodial sentence for offences including breaking into a residence, counterfeiting of currency, documents, securities or electromagnetic records for payment cards, gambling, homicide, injury, unlawful capture and confinement, kidnapping, theft and robbery, fraud and extortion, or stolen property, nor for the specified offences under the Act on Punishment of Physical Violence, the Act for Prevention of Robbery, the Act on Prohibition of Possession of Special Picking Tools, the Act on Punishment of Acts Causing Death or Injury by Driving a Motor Vehicle, or the Act on Prevention of Disposal of Stolen Specified Metal Products. Fourth, the person has never previously been deported from Japan and has never departed under a departure order pursuant to Article 55-85, paragraph (1). Fifth, the person is expected with certainty to leave Japan promptly. Where a departure order is issued, the supervising immigration inspector orders prompt departure and, under Article 55-85, paragraph (1), sets a departure deadline of not more than 15 days. This procedure does not presuppose detention.

What then decides whether you can return to Japan is the period of denial of landing under Article 5, paragraph (1), item (ix). A person who departs under a departure order is denied landing for one year from the date of departure (item (ix)(e)). By contrast, a person who expressed the intention to depart only after the violation investigation had begun (Article 24-3, item (i)(b)), and who then departs under a departure order, faces five years from the date of departure if they later seek to engage in activities as a temporary visitor (item (ix)(f)). If enforcement means the requirements for a departure order are not met and the person is deported instead, the period is five years from the date of deportation (item (ix)(c)), or ten years if there is already a prior deportation or departure order (item (ix)(d)). Where deportation follows from Article 24, items (iv)(e) through (iv)(y), Article 5, paragraph (1), item (x) sets no time limit at all.

The Guidelines on Special Permission to Stay (revised in March 2024 and in force from 10 June 2024) describe special permission as an exceptional, discretionary measure extended to a foreign national who ought to be deported. They also state expressly that appearing voluntarily at a regional immigration services bureau in order to report one's own unlawful stay is considered a positive factor. Prolonged unlawful stay, on the other hand, is assessed as a negative factor. In a case of one to several years, that negative factor is already present. This is exactly why coming forward voluntarily carries real weight: it is one of the few positive factors you can still create by your own decision.

Appearing at the bureau is not simply a matter of showing up. Before you go, the records of your life in Japan, your family relationships and your employment history need to be assembled, and a strategy fixed in advance: what will be argued in the criminal case, whether you will seek special permission to stay, or whether you will instead depart under a departure order and aim to return once the period of denial of landing has run. Getting the order of steps wrong can be very hard to undo.

About our office

Funado International Law Office (3rd floor, Fuse Building Main Wing, 3-4-10 Takada, Toshima-ku, Tokyo) concentrates on criminal defence for foreign nationals and on immigration procedures, primarily for clients of Chinese nationality.

Three features define how we work. First, Attorney Daisuke Matsumura handles every stage personally, from the first detention visit through to the close of trial; the work is not delegated to clerks or junior attorneys. Second, a dedicated Chinese-language interpreter experienced in cases involving foreign nationals is permanently on staff, so clients can use an interpreter working for them, separate from the interpreter assigned by the investigating authorities. For other languages, we arrange an interpreter according to the needs of the case. Third, renewals and changes of status of residence after the criminal case concludes are handled on a one-stop basis together with an affiliated administrative scrivener (gyōsei shoshi).

Two resolved cases relevant to this topic:

• Special permission to stay obtained in a single set of proceedings in a case regarded as difficult. A client who had entered Japan as a tourist had a child with a Japanese woman, lost his status of residence and was arrested and prosecuted for unlawful stay. Because the marriage and acknowledgment of paternity had not been completed, the authorities initially refused the filings. Attorney Matsumura negotiated from a constitutional standpoint, secured the marriage and the acknowledgment, conducted the defendant's examination and witness questioning with the criminal trial firmly in view, and analysed past decisions of the immigration authorities. Special permission to stay was obtained in a single set of proceedings.
• A woman facing deportation over an allegation of promoting unauthorised employment. Wrongly accused of promoting unauthorised employment, she faced deportation. Against the settled practice that grounds for deportation require neither intent nor negligence, we brought litigation testing the reach of the principle of culpability 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 the case. Where the person concerned is in custody, we also accept consultations from family members.

Closing

Where an overstay has run from one year to several years, the length of that period counts against the person as a matter of criminal seriousness, and the guidelines on special permission to stay likewise treat prolonged unlawful stay as a negative factor. Even so, the manner of any work undertaken, the reality of daily life, family relationships, and above all the initial choice of whether to come forward voluntarily will genuinely change the range of possible outcomes. The worst outcome is to remain unable to act while time continues to pass.

This article is a general explanation. For your own case, please consult a lawyer directly. The resolved cases described above rest on their own particular circumstances and do not guarantee a similar result.

Author

Daisuke Matsumura, Attorney at Law

Member of the Dai-Ichi Tokyo Bar Association (registration number 59077, admitted 2019)

Funado International Law Office (3rd floor, Fuse Building Main Wing, 3-4-10 Takada, Toshima-ku, Tokyo)

Focuses on criminal defence for foreign nationals and immigration procedures, primarily for clients of Chinese nationality.

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

Contact

Funado International Law Office

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

WeChat ID: matsumura1119

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