Overstaying in Japan: the three decisions a prosecutor can make, and what each means for your visa

You stayed past the expiry date on your residence card, and one day a police officer or an immigration control officer began asking questions. Or the same thing happened to a member of your family. During questioning you were told that the case would be "sent to the prosecutor" and that "the prosecutor's office will decide the disposition" — but nobody explained what those dispositions are, or how each one affects whether you can remain in Japan.

In an overstay case (fuhō zanryū, illegal residence), a public prosecutor has three broad options: non-prosecution, usually suspension of prosecution (kiso yūyo); a fine imposed through summary proceedings (ryakushiki); or a formal indictment sending the case to open trial (kōhan seikyū). This article explains how the three differ, and what each means for your immigration position, following the wording of the Immigration Control and Refugee Recognition Act (Immigration Control Act).

What are the three dispositions a prosecutor can choose in an overstay case?

Non-prosecution (most often suspension of prosecution), a fine through summary proceedings, or a formal indictment leading to a public trial. Which one applies is decided by the prosecutor on the facts of each case.

The starting point is that overstaying is not merely an administrative matter. Article 70, paragraph (1), item (v) of the Immigration Control Act makes it an offence to be "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 receiving an extension or change of that period of stay." The main clause of the same paragraph sets the statutory penalty at a kōkinkei (custodial sentence) of not more than three years, or a fine of not more than 3,000,000 yen, or both. Overstaying is therefore a criminal offence, handled through criminal procedure.

Because the statute allows both a custodial sentence and a fine, the prosecutor has the following options.

• Non-prosecution (suspension of prosecution) — the offence is treated as established, but in light of the circumstances the prosecutor decides not to charge. There is no trial and no criminal record.
• A fine through summary proceedings — no open court hearing is held; a summary court imposes a fine on the documents. A fine is a criminal penalty and leaves a record of conviction.
• Formal indictment (public trial) — the case is heard in open court, and the judgment may be a fine, a suspended kōkinkei, or an immediate custodial sentence.

Whichever of the three occurs, deportation proceedings continue separately. This is the point most people misunderstand first.

If I receive a suspension of prosecution, can I stay in Japan?

No. A decision not to prosecute does not decide whether you may remain in Japan. Criminal punishment and immigration status are determined under different laws, through different procedures.

Article 24, item (iv)(b) of the Immigration Control Act makes "a person who remains in Japan beyond the period of stay without receiving an extension or change of that period of stay" subject to deportation. That provision is not conditioned on the outcome of the criminal case. Even if you are never charged, so long as you are in Japan after your period of stay has expired, item (iv)(b) continues to apply.

So even when the criminal case ends in non-prosecution, the immigration process continues: violation investigation (Article 27 and following), a written detention order (Article 39) or a supervision measure decision (Article 44-2, paragraph (7)), examination by an immigration inspector (Article 45 and following) and a finding (Article 47, paragraph (3)), a request for a hearing (Article 48), and an objection to the Minister of Justice (Article 49). Anyone who tells you that "non-prosecution means you are safe" is not describing the law accurately.

What are summary proceedings and a summary fine?

They are proceedings in which a summary court imposes a fine on the papers alone, without an open court hearing. They require that the person understands the procedure and states in writing that they have no objection to it.

The process ends quickly, but a fine is a criminal penalty and remains on record as a conviction. In that respect it differs fundamentally from non-prosecution. There is also a statutory ceiling on the fine that can be imposed in summary proceedings; where a higher fine is required, the case must go to a formal trial.

For immigration purposes, note the following. Article 24, item (iv)(i) covers, "in addition to the persons listed in (d) through (h), a person who has been sentenced on or after 1 November 1951 to an indefinite kōkinkei or a kōkinkei exceeding one year" — excluding a person whose sentence was suspended in full, and a person given a partly suspended sentence where the unsuspended part is one year or less. A fine is not a kōkinkei, so item (iv)(i) does not apply. But item (iv)(b) already applies, so the person is already subject to deportation.

What happens if I am indicted and sent to a public trial?

The case is heard in open court, and the judgment will be a fine, a suspended custodial sentence, or an immediate custodial sentence. Whether an immediate sentence exceeds one year changes the immigration outlook substantially.

Consider first a suspended sentence. A judgment such as "kōkinkei of one year and six months, suspended for three years" does not fall within Article 24, item (iv)(i), because of the express exclusion in that item. However, item (iv)(b) already makes the person subject to deportation. The belief that "a suspended sentence means I can stay" is simply wrong.

Now consider an immediate custodial sentence exceeding one year. Two serious consequences follow.

• Under the proviso to Article 50, paragraph (1), special permission to stay may then be granted only where the Minister finds special circumstances such that refusing permission to stay in Japan would be lacking in humanitarian consideration. This is a heightened requirement.
• Because item (iv)(i) now applies, the person no longer satisfies Article 24-3, item (ii) (which requires that none of Article 24, item (iv)(c) through (o) apply), and the departure order system becomes unavailable.

Conversely, where the case involves overstaying alone (Article 24, item (iv)(b)), the heightened requirement in the proviso to Article 50, paragraph (1) does not apply. That is a favourable point that should not be overlooked when seeking special permission to stay.

What determines which disposition I receive?

The statutory penalty does not change with the length of the overstay. What changes is the prosecutor's choice of disposition and the range of sentence.

In practice, the length of the overstay — the period over which the unlawful situation was allowed to continue — is a central factor bearing directly on the severity of the disposition. Cases where the period is comparatively short, where the person went voluntarily to a regional immigration office, and where housing and family relationships are clear tend towards lighter dispositions. Cases where the period ran long, where unlawful employment was involved, and where further violations such as the use of forged documents are added tend towards heavier ones.

These are tendencies only, and outcomes vary from case to case. Two people who each overstayed for several years may be treated differently depending on how the situation arose, family circumstances, conduct, and the arrangements made to prevent recurrence. Be cautious of any explanation that predicts an outcome using specific numbers of years or percentages.

If my criminal penalty is light, will special permission to stay be granted?

Not automatically. The severity of the criminal disposition and the question of whether you may remain are separate. They are not, however, wholly unconnected.

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

Procedurally, the timing of an application is restricted. Under Article 50, paragraph (2), an application is made by a foreign national detained under a written detention order, or one subject to a supervision measure decision. The right to apply therefore arises only at that stage; before it, the work consists of asking the authorities to exercise their own powers. Under Article 50, paragraph (3), no application may be made once a written deportation order has been issued; from that point the remedies lie in the courts, through revocation proceedings and applications for a stay of execution. The decision itself can be made only after the person has accepted the finding under Article 47, paragraph (3) or the judgment under Article 48, paragraph (8), or after the Minister has ruled that an objection is without grounds (Article 50, paragraph (4)).

Article 50, paragraph (5) lists the matters to be considered: the reasons for wishing to stay, family relationships, conduct, the circumstances of entry into Japan, the period of residence in Japan and the legal status held during it, the facts constituting the ground for deportation, and the need for humanitarian consideration, together with domestic and international circumstances, the effect on illegal residents in Japan, and other matters. Where permission is refused, the person must promptly be notified in writing with reasons (Article 50, paragraph (10)).

This is where the criminal case connects. "Conduct" under paragraph (5) can reflect the criminal disposition, and an immediate sentence exceeding one year triggers the heightened requirement in the proviso to paragraph (1). For that reason, the work of reducing the criminal penalty and the work of seeking special permission to stay must be designed together from the very first steps. Turning to immigration only after the criminal case has ended tends to leave usable evidence and arguments unused.

Does it make a difference if I come forward before I am detected?

Yes. In particular, if you are considering returning home now with a view to coming back to Japan lawfully later, whether you came forward voluntarily produces a clear difference in legal effect.

The departure order system under Article 24-3 does not presuppose detention. It applies to a foreign national falling under Article 24, item (ii)-4, item (iv)(b), or items (vi) to (vii), and only where all five requirements are met: item (i)(a) (before a violation investigation under Article 27 begins, the person appeared voluntarily at a regional immigration office with the intention of leaving Japan promptly) or item (i)(b) (after the investigation has begun but before receiving notice under Article 47, paragraph (3), the person told an immigration inspector or immigration control officer of an intention to leave promptly); item (ii) (none of Article 24, items (iii) to (iii)-5, item (iv)(c) to (o), item (viii) or item (ix) applies); item (iii) (since entering Japan, the person has not been sentenced to a kōkinkei for any of the offences listed in the provision, such as breaking into a residence, counterfeiting, gambling, homicide, injury, theft and robbery, or fraud and extortion); item (iv) (the person has never previously been deported from Japan, nor departed under a departure order); and item (v) (the person is reasonably expected to leave Japan promptly). Once a departure order is issued, the supervising immigration inspector orders departure promptly and sets a departure deadline not exceeding 15 days under Article 55-85, paragraph (1).

The clearest difference appears in the period during which landing is denied under Article 5, paragraph (1), item (ix).

• A person who departed under a departure order — item (ix)(e) / one year from the date of departure
• A person falling under Article 24-3, item (i)(b) (who expressed the intention to depart only after the investigation had begun) who departed under a departure order and then seeks to engage in temporary visitor activities — item (ix)(f) / five years from the date of departure
• A person who was deported and had no previous deportation or departure order — item (ix)(c) / five years from the date of deportation
• A person who was deported and had a previous deportation or departure order — item (ix)(d) / ten years from the date of deportation

In short, coming forward before a violation investigation begins places you within Article 24-3, item (i)(a), and departure under a departure order means one year. Expressing that intention only after the investigation has begun (item (i)(b)) means five years if you later seek to come as a temporary visitor. And if detection means you cannot satisfy items (ii), (iii) or (iv), the departure order route is closed altogether, leaving deportation with five years (item (ix)(c)) or ten years (item (ix)(d)). Where deportation follows from Article 24, item (iv)(e) through (o), Article 5, paragraph (1), item (x) sets no fixed period at all.

Coming forward also matters if you hope to stay. The Guidelines on Special Permission to Stay, revised in March 2024 and in force from 10 June 2024, describe special permission to stay as "a measure taken exceptionally and as a matter of grace towards a foreign national who ought to be deported from Japan," and state expressly that the fact that the foreign national appeared voluntarily at a regional immigration office in order to report their illegal residence is considered a positive factor. Prolonged illegal residence, by contrast, is treated as a negative factor. Time spent waiting works against you.

That said, a departure order presupposes leaving Japan. Do you want to continue your life here, or return home now and aim to come back later with a proper status of residence? Choosing between those two paths is the single most important early decision, and it should be made before you present yourself to the authorities.

About our office

Funado International Law Office (Fuse Building Main Wing 3F, 3-4-10 Takada, Toshima-ku, Tokyo) focuses on criminal defence for foreign nationals and on immigration procedures, primarily for clients of Chinese nationality. Daisuke Matsumura, the attorney in charge, is a member of the Dai-Ichi Tokyo Bar Association (registration number 59077, admitted 2019).

Three features characterise how we work. First, Mr Matsumura personally handles every stage himself, from the first detention visit 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 based at the office. For other languages, an interpreter is arranged according to the requirements of the case. Either way, the client has access to an interpreter working for the client, separate from the interpreter appointed by the investigating authorities. Third, matters arising after the criminal case ends, such as extension or change of a status of residence, are handled together with an affiliated administrative scrivener as a single service.

Two past matters close to the subject of this article are set out below.

• Special permission to stay obtained in a single set of proceedings in a difficult case — the client had entered Japan as a tourist and had a child with a Japanese woman, but lost his status of residence and was arrested and charged as an illegal resident. The marriage and acknowledgement of paternity had not been completed and were initially refused by the authorities. Negotiating from a constitutional standpoint, we completed both, assembled favourable evidence despite the near absence of official documents from the client's country of nationality, analysed past grants of permission, and obtained special permission to stay in a single set of proceedings.
• A woman facing deportation on a charge of promoting unlawful employment — wrongly accused of promoting unlawful employment, she faced deportation. Against the established practice that grounds for deportation require neither intent nor negligence, we 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.

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

Non-prosecution, a summary fine, or a formal indictment: which disposition you receive matters, but in every one of the three, deportation proceedings under Article 24, item (iv)(b) continue on a separate track. And if an immediate sentence exceeds one year, two barriers appear at once — the proviso to Article 50, paragraph (1), and Article 24-3, item (ii). That is why the criminal outlook and the immigration outlook have to be mapped out together, at the very beginning.

This article is a general explanation. For your own situation, please consult a lawyer directly. The past matters described above turned on their own particular facts and are not a guarantee of a similar result.

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)

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 decision not to prosecute in a specialised fraud case, and grants 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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