A Suspended Sentence for Overstaying Does Not Mean You Can Stay in Japan

You have been living in Japan past the expiry of your period of stay. At some point the police or the immigration authorities learned of your situation, and a criminal court handed down a kōkinkei (custodial sentence) with the whole of the sentence suspended. Or perhaps your judgment day is still ahead. Most people in this position understand the outcome to mean that they may now remain in Japan, and relatives often say that since there is no prison term, everything is fine. Under Japanese immigration law, matters are not that simple. Whether a court suspends your sentence, and whether you may lawfully continue to live in Japan, are decided within two separate legal frameworks. This article explains why, following the text of the statute.

Does a suspended sentence mean I will not be deported

Not necessarily. A suspended sentence is the conclusion of the criminal case. It does not stop deportation proceedings under the Immigration Control and Refugee Recognition Act (Immigration Control Act, 出入国管理及び難民認定法). Illegal residence is, in itself, a ground for deportation under Article 24, item (iv)(b) of that Act. Whether the criminal disposition is a suspended sentence, a fine, or a non-prosecution disposition (不起訴処分), the immigration process continues along its own separate track for as long as the fact of remaining beyond the authorised period of stay exists.

What crime is overstaying under Japanese law

It is the offence set out in Article 70, paragraph (1), item (v) of 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 reside in Japan under Article 20, paragraph (6), without having obtained an extension or a change of that period. The statutory penalty appears in the opening text of Article 70, paragraph (1): a kōkinkei (custodial sentence) of not more than three years, or a fine of not more than three million yen, or both may be imposed cumulatively. Overstaying is therefore not merely an administrative failure to file paperwork. It is a criminal offence, and a suspended custodial sentence is a disposition imposed for that very offence.

Why do deportation proceedings continue even after a suspended sentence

Because Article 24, item (iv)(b) does not require a criminal conviction at all. The provision simply describes a person who remains in Japan beyond the period of stay without having obtained an extension or a change. It says nothing about the outcome of any criminal case. What triggers the provision is the fact of remaining. A lighter criminal disposition, or even the complete absence of one, therefore does not remove its application. It helps to picture the criminal process and the deportation process as two lines that begin from the same facts but run on different purposes and different requirements.

What does custodial sentence exceeding one year in Article 24, item (iv)(i) mean

Article 24, item (iv)(i) makes it a ground for deportation that a person, apart from those listed in (d) through (h) of the same item, has been sentenced on or after 1 November 1951 to life imprisonment or to a kōkinkei (custodial sentence) exceeding one year. The proviso to that sub-item excludes a person who has received a suspension of execution of the whole sentence, and a person who has received a suspension of execution of part of the sentence where the unsuspended portion is one year or less. If you were sentenced for illegal residence to, say, one year and six months suspended for three years, you do not fall under item (iv)(i). Read in isolation, that looks reassuring. The difficulty is that you already fall under Article 24, item (iv)(b). Item (iv)(i) exists to create a fresh ground for deportation in cases such as a lawfully resident foreign national who receives a substantial prison term for a serious crime. It does not cancel out the application of item (iv)(b) to a person who has overstayed. The common misunderstanding arises precisely from confusing the roles of these two provisions.

Where other offences are involved, the position becomes harder. Article 24, item (iv)(h) makes a person found guilty of violating drug-related legislation a ground for deportation, and it applies even where the penalty is a fine and even where the sentence is suspended. In addition, item 3 of Article 24-3, which sets out the requirements for a departure order (出国命令), requires that the person has not been sentenced to a kōkinkei for certain offences, including breaking into a residence, counterfeiting of currency and forgery of documents, theft and robbery, fraud and extortion, injury, and unlawful capture and confinement. Unlike Article 24, item (iv)(i), this item 3 contains no exclusion for suspended sentences.

Does a suspended sentence have any value, then

It has considerable value, but the value appears at a different stage: not at the level of grounds for deportation, but at the level of special permission to stay (在留特別許可). The proviso to Article 50, paragraph (1) provides that where the person has been sentenced to life imprisonment or to a kōkinkei exceeding one year, excluding a person who received suspension of the whole sentence and a person with partial suspension whose unsuspended portion is one year or less, and in certain other listed cases, permission may be granted only where the Minister of Justice finds special circumstances such that refusing permission to reside in Japan would be lacking in humanitarian consideration. Where the whole sentence is suspended, that heightened requirement does not attach. Furthermore, a case involving illegal residence alone, that is Article 24, item (iv)(b), is not among the categories covered by that proviso in the first place. Conversely, once an unsuspended term exceeding one year is imposed, you enter the world of the heightened requirement. Keeping the criminal disposition within the range of a suspended sentence, a fine, or non-prosecution therefore secures the very ground on which special permission to stay can be sought. If you are not prosecuted, deportation proceedings still go ahead, because item (iv)(b) requires no conviction; but non-prosecution can weigh in your favour when the authorities assess conduct, one of the matters Article 50, paragraph (5) requires to be considered. A good criminal outcome is obtained in order to be used in the immigration proceedings.

Can I still seek special permission to stay after judgment

It depends on the stage you have reached. Article 50, paragraph (2) provides that an application for special permission to stay is made to the Minister of Justice, in accordance with the procedures prescribed by Ministry of Justice ordinance, by a foreign national who has been detained under a written detention order or who has received a decision on supervision measures (監理措置決定). The right to apply therefore arises only once one of those is in place; before that point, the work consists of urging the authorities to act on their own authority. 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 judgment under Article 48, paragraph (8), or after the Minister of Justice has ruled that an objection is without grounds. Article 50, paragraph (3) then provides that no application may be made after a written deportation order has been issued. Once that order is issued, the matter moves into the field of judicial remedies, namely an action for revocation and an application for a stay of execution. Where permission is refused, Article 50, paragraph (10) requires prompt written notification with reasons attached, and those stated reasons are an important clue in deciding what to do next.

Why acting on your own initiative, before enforcement action, matters

Working backwards from a suspended sentence, it becomes clear how much turned on which entrance you passed through beforehand. The departure order system in Article 24-3 is an exit, not premised on detention, available to a person who satisfies all five listed requirements. Item 1(a) covers a person who, before the commencement of a violation investigation under Article 27, voluntarily appeared at an immigration office with the intention of leaving Japan promptly. Item 1(b) covers a person who, after a violation investigation has begun but before receiving the notice under Article 47, paragraph (3), states an intention to leave Japan promptly. That fork determines when you may next come to Japan. For a person who departs under a departure order, the period of denial of landing is one year from the date of departure under Article 5, paragraph (1), item (ix)(e). By contrast, where a person falling under item 1(b) departs under a departure order and then seeks to engage in activities as a temporary visitor, the period is five years under item (ix)(f). If the requirements for a departure order are not met and deportation follows, the period is five years under item (ix)(c), and ten years under item (ix)(d) where the person has previously been deported or has previously departed under a departure order. Where deportation follows from Article 24, item (iv)(e) through (o), Article 5, paragraph (1), item (x) sets no fixed period at all. The Guidelines on Special Permission to Stay, revised in March 2024 and in force from 10 June 2024, expressly treat voluntarily appearing at a regional immigration office in order to report one own unlawful residence as a positive factor, while a prolonged period of unlawful residence is assessed as a negative factor. A posture of waiting for the criminal judgment often means that these options are already out of reach.

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, attorney at law, is a member of the Dai-Ichi Tokyo Bar Association, registration number 59077, admitted in 2019. He personally handles every stage of a case, from the first visit at the detention facility through to the conclusion of the trial, without delegating the work to clerical staff or junior lawyers. Whether a sentence will be suspended, and whether special permission to stay can be sought, are questions that grow from the same facts at the same time, which is why a single lawyer should design both lines together.

Two resolved matters illustrate the point. In one, a client who had come to Japan 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 acknowledgment of paternity were incomplete and the authorities initially declined the filings. Our office negotiated from a constitutional standpoint, secured the marriage and the acknowledgment, and conducted questioning of the defendant and examination of witnesses with the criminal trial firmly in view. Although almost no official documents from the country of nationality were available, favourable evidence was assembled and past grant decisions of the immigration authorities were analysed, and special permission to stay was obtained in a single set of proceedings.

In the other, 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 questioning the reach of the principle of individual culpability and pursued it to the appellate level. Special permission to stay was subsequently granted.

As to language support, a dedicated Chinese interpreter experienced in cases involving foreign nationals is present in our office at all times; for other languages, we arrange interpreters according to the needs of the case. Clients can therefore use an interpreter who works for them, separate from the interpreter designated by the investigating authorities. In interrogations and immigration interviews, a small difference in the choice of words can change what a written statement is taken to mean. For renewals and changes of status of residence after the criminal proceedings end, we work with an affiliated administrative scrivener. The first consultation is free of charge, and fees are quoted according to the circumstances of the case.

Closing

A suspended sentence carries real weight in the criminal arena, but on its own it does not mean you may remain in Japan. Deportation proceedings under Article 24, item (iv)(b) continue separately, and the decisive contest moves to special permission to stay. At the same time, holding the outcome to a suspended sentence has genuine value, because it avoids the heightened requirement in the proviso to Article 50, paragraph (1). Rather than waiting for judgment, plan from the outset how the meaning of that judgment will be used in the immigration proceedings. This article is a general explanation. For your individual case, please consult a lawyer directly. Past resolved matters rest on their own particular circumstances and do not guarantee 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)

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

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

Contact

Funado International Law Office

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

WeChat ID: matsumura1119

Other language versions of this article

日本語 / 简体中文 / 繁體中文 / Tiếng Việt / 한국어