Overstaying in Japan for 5 or 10 Years: What Changes and What Does Not

People who have lived in Japan for five years, ten years or longer after their period of stay expired often arrive with the same question: has it gone on too long for anything to help? There is a job, there is a family, the substance of daily life is here. The only thing missing is a valid status of residence. The longer that lasts, the harder it becomes to take the first step voluntarily, and that feeling is entirely natural. But a long overstay is not a case without options. It is a case that has to be organised differently. This article sets out, on the basis of the Immigration Control and Refugee Recognition Act (Immigration Control Act), what changes in law when an overstay becomes long term and what does not. A long overstay has two sides: one that counts against you, and one that can count in your favour.

Does the offence itself become more serious after ten years of overstaying?

No. The statutory penalty does not change. Article 70, paragraph (1), item (v) of the Immigration Control Act penalises a person who remains in Japan beyond the authorised period of stay without obtaining an extension or a change of status, including the period during which the person may remain under Article 20, paragraph (6). The penalty in the opening text of that paragraph is a kōkinkei (custodial sentence) of not more than three years, a fine of not more than 3,000,000 yen, or both. That range is identical whether the overstay lasted one year or ten. What changes is which disposition the public prosecutor selects, and, if the case goes to trial, where within that range the sentence falls.

How does a long overstay affect the criminal disposition in practice?

It weighs against you as part of the seriousness of the offence. Unlawful residence consists in maintaining an unlawful situation, namely remaining in Japan without a status of residence, so the length of time that situation was maintained is a central factor in how heavy the disposition becomes. Where a long overstay is combined with paid work amounting to unauthorised activity, or with the use of forged documents, the case moves further towards the heavier end. This is a tendency, not a rule. The actual outcome varies considerably depending on how the person came forward, the substance of their life in Japan, their family circumstances, and what has been done to acknowledge the situation and prevent repetition. No responsible general statement can be made in specific numbers of years or percentages.

Can a long period in Japan ever work in my favour?

Yes, and the place where it can is the decision on special permission to stay (zairyū tokubetsu kyoka, 在留特別許可). Article 50, paragraph (5) lists the matters to be taken into account: the reasons for wishing to remain, family relationships, conduct, the circumstances of entry into Japan, the length of residence in Japan, the legal status held during that period, the facts constituting the ground for deportation, and the need for humanitarian consideration, together with domestic and international circumstances, the effect on unlawful residents in Japan, and other matters. What has been built up over many years, such as marriage, the birth and raising of children, their schooling, stable housing, payment of taxes and social insurance contributions, and ties to the local community, can serve as concrete material supporting those statutory considerations. That is where the two sides meet.

Does the official guideline treat a long overstay as a positive or a negative factor?

As a negative factor. The guideline on special permission to stay, revised in March of Reiwa 6 and in force from 10 June of Reiwa 6, describes special permission as an exceptional and discretionary measure granted to a foreign national who is otherwise to be deported, explains how each consideration under Article 50, paragraph (5) is assessed, and treats the prolongation of unlawful residence as a negative factor. At the same time, the same guideline expressly states that the fact that the foreign national voluntarily appeared before a regional immigration services bureau in order to report their own unlawful residence is taken into account as a positive factor. It follows that the reasoning I have lived here a long time, so permission should follow does not hold. What can be argued is not the number of years but the content of those years, demonstrated with evidence.

Is there a statute of limitations if I have overstayed for ten years?

There is not. Unlawful residence continues as an offence for as long as the person remains in Japan without a status of residence. It is not the kind of offence where a single act ends on a particular day and time begins to run from there, so waiting until prosecution is no longer possible is not a workable plan. On the contrary, waiting only adds to the very factor, prolongation, that the guideline treats as negative.

Can the departure order system still be used, and when could I return to Japan?

The length of the stay is not itself one of the requirements. Article 24-3 applies to a foreign national falling under Article 24, item (ii)-4, item (iv)(b), or items (vi) to (vii), and requires all five of the following. First, the person must either have appeared voluntarily at an immigration services office before a violation investigation commenced, intending to leave Japan promptly (item (i)(a)), or have stated to an immigration inspector or immigration control officer, after the investigation began but before receiving the notice under Article 47, paragraph (3), that they intend to leave promptly (item (i)(b)). Second, the person must not fall under Article 24, items (iii) to (iii)-5, items (iv)(c) to (iv)(y), item (viii) or item (ix). Third, since entering Japan the person must not have been sentenced to a kōkinkei (custodial sentence) for the offences listed in the provision, which include breaking into a residence, counterfeiting of currency, documents and securities, gambling, homicide, injury, unlawful capture and confinement, kidnapping, theft and robbery, fraud and extortion, and offences relating to stolen property. Fourth, the person must never have been deported or have departed under a departure order. Fifth, the person must be expected to leave promptly with certainty. Which route the case takes then decides when a return to Japan becomes possible. A person who left under a departure order is denied landing for one year from departure (Article 5, paragraph (1), item (ix)(e)). A person falling under Article 24-3, item (i)(b) who leaves under a departure order and later seeks to enter for the activities of temporary visitor status faces five years (item (ix)(f)). A person deported with no prior record of deportation or departure order faces five years from deportation (item (ix)(c)), and ten years where such a record exists (item (ix)(d)). A person deported on the grounds in Article 24, items (iv)(e) to (iv)(y) falls under Article 5, paragraph (1), item (x), for which no period is specified, meaning an indefinite denial of landing.

What if I have also worked without permission, or receive an actual custodial sentence?

The assessment becomes considerably harder. A person who does not engage in the activity corresponding to their status of residence and instead exclusively carries out an activity for remuneration falls within Article 70, paragraph (1), item (iv), and, as a ground for deportation, within Article 24, item (iv)(a). Using a forged residence card adds further violations. What deserves particular attention is that once violations accumulate, the requirements of Article 24-3, item (ii) or item (iii) may no longer be met and the departure order option disappears entirely. In addition, where an unsuspended sentence exceeds one year, the proviso to Article 50, paragraph (1) applies: for a person sentenced to life imprisonment or to a kōkinkei (custodial sentence) exceeding one year, excluding a person whose punishment is suspended in whole and a person given a partially suspended sentence whose unsuspended part is one year or less, special permission may be granted only where there are special circumstances such that refusing permission to remain would be found to lack humanitarian consideration. Conversely, a case of unlawful residence alone, under Article 24, item (iv)(b), is not subject to that heightened requirement. That remains true however long the overstay has lasted, and it is an important point in the person favour. This is precisely why the work of keeping the criminal disposition as light as possible and the work of obtaining special permission must be designed as a single strategy from the outset.

Why it matters to act before you are detected

The longer the overstay, the greater the difference between coming forward and being detected. The legal difference is as set out above: appearing voluntarily before a violation investigation begins brings the person within Article 24-3, item (i)(a), and a departure order then carries a one year denial of landing, whereas expressing that intention only after the investigation has begun (item (i)(b)) means five years for a later temporary visitor entry, and if detection reveals other violations so that the requirements are no longer met, the departure order is unavailable and deportation follows with five or ten years. There is also a difference in practice. The guideline expressly lists voluntary appearance as a positive factor. In a case already carrying the negative factor of prolongation, having reported oneself is one of the few pieces of material that meets that negative factor directly. Waiting to be detected means giving it away.

How our office can help

Funado International Law Office, at Fuse Building Main Wing 3F, 3-4-10 Takada, Toshima-ku, Tokyo, concentrates on criminal defence for foreign nationals and on immigration procedures, with a client base centred on Chinese nationals. In a long term overstay case, assessing the likely criminal disposition and assembling evidence for each consideration under Article 50, paragraph (5) have to proceed in parallel. We design both under a single strategy.

Two examples. In the first, a client who had entered as a tourist had a child with a Japanese woman, lost his status of residence, and was arrested and prosecuted for unlawful residence. The marriage and acknowledgement of paternity were incomplete and the filings were initially declined. Mr Matsumura negotiated with the authorities from a constitutional standpoint, secured both, gathered favourable evidence despite the near absence of official documents from the country of nationality, and, by analysing past cases in which permission had been granted, obtained special permission to stay in a single set of proceedings.

In the second, a woman wrongly accused of promoting unlawful employment faced deportation. Against the established practice treating intent and negligence as unnecessary for grounds of deportation, the office brought proceedings testing the reach of the principle of culpability and pursued them to the appellate stage. Special permission to stay was subsequently granted by the immigration authorities.

As to how we work, Mr Matsumura handles every stage personally, from the first detention visit through to the close of trial, without delegating to clerical staff or junior lawyers. A dedicated Chinese interpreter experienced in cases involving foreign nationals is based at the office, so a client can use an interpreter working for the client, separate from any interpreter designated by the investigating authorities. For other languages, an interpreter is arranged according to the requirements of the case. Renewals and changes of status of residence after the criminal proceedings conclude are handled on a one stop basis with an affiliated administrative scrivener. The first consultation is free of charge, and fees are quoted according to the circumstances of the case.

Closing note

Even after five or ten years, options usually remain, but they diminish with time. The departure order route and the positive factor of having come forward both change shape the moment a person is detected. Begin by establishing precisely what your own case contains.

This article is a general explanation. For your individual situation, please consult a lawyer directly. Past results reflect the particular circumstances of those cases and are not a guarantee of a similar outcome.

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

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

Past results include an acquittal in a case under the Stimulants Control Act (possession for the purpose of profit), a decision not to prosecute in a specialised fraud case, and the grant of special permission to stay in cases regarded as difficult.

Contact

Funado International Law Office

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

WeChat ID: matsumura1119

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