Overstaying in Japan and a Prison Sentence of More Than One Year: The Article 50(1) Proviso Barrier to Special Permission to Stay

You have been living in Japan after your period of stay expired. One day the police or an immigration control officer takes you into custody, a criminal case begins, and your defence counsel tells you that a real prison sentence is possible. For you, and for the family waiting for you in Japan, few moments are more frightening. In overstay cases, the outcome of the criminal case feeds directly into the separate question of whether you can remain in Japan. In particular, whether the sentence exceeds one year of kōkinkei (拘禁刑, custodial sentence) without suspension is a line that the Immigration Control and Refugee Recognition Act (the "Immigration Control Act") draws expressly. This article explains, calmly and by reference to the statute, where that line sits and what changes once it is crossed.

What happens to special permission to stay if I receive a prison sentence of more than one year for overstaying?

A heightened statutory requirement is attached to the decision. The proviso to Article 50(1) provides that, where the person has been sentenced to life imprisonment or to a kōkinkei (custodial sentence) exceeding one year, special permission may be granted only where the Minister of Justice finds that there are special circumstances such that refusing to permit residence in Japan would be lacking in humanitarian consideration. Two categories are expressly excluded from that heightened test: a person given a full suspension of execution of the sentence, and a person given a partial suspension whose unsuspended portion is one year or less. In short, a higher bar than the ordinary case is set by the wording of the statute itself. The same proviso also applies where the person falls under Article 24, item (iii)-2, item (iii)-3, item (iv)(c), or items (iv)(o) through (iv)(y).

Why is "one year" the dividing line?

Because the Immigration Control Act draws the same "kōkinkei exceeding one year" line in two places. The first is Article 24, item (iv)(i) (24条4号リ), which makes it a ground for deportation to have been "sentenced, on or after 1 November 1951, to life imprisonment or to a kōkinkei exceeding one year," in addition to those listed in items (d) through (h). The second is the proviso to Article 50(1) described above. Both contain the same carve-out for a full suspension of execution and for a partial suspension whose unsuspended portion is one year or less. Because the statute says "exceeding one year," a sentence of exactly one year does not fall within it. A sentence of one year and six months to be served, a sentence of one year to be served, and a sentence of one year and six months suspended for three years are therefore treated in three entirely different ways under the Immigration Control Act.

If my case involves nothing but overstaying, does the proviso still apply?

If you are subject to deportation solely because of illegal overstay itself, that ground alone does not trigger the heightened requirement in the proviso to Article 50(1). Illegal overstay is Article 24, item (iv)(b), and the proviso lists only (a) a sentence of life imprisonment or a kōkinkei exceeding one year, and (b) the cases falling under Article 24, item (iii)-2, item (iii)-3, item (iv)(c), or items (iv)(o) through (iv)(y). Item (iv)(b) is not among them. In practice this is a very significant point in your favour. So long as the criminal outcome remains a non-prosecution disposition, a fine, or a suspended sentence, special permission is assessed as an overall judgment on the factors listed in Article 50(5). Conversely, the moment a sentence exceeding one year to be served becomes final, the proviso is opened from the sentencing side.

What counts as "special circumstances such that refusal would be lacking in humanitarian consideration"?

The statute gives no definition, and the assessment is made case by case. The starting point is Article 50(5), which requires consideration of the reasons for wishing to remain, 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, and the need for humanitarian consideration, as well as domestic and international circumstances, the effect on illegal residents in Japan, and other matters. In addition, the Guidelines on Special Permission to Stay, revised in March 2024 and in force from 10 June 2024, characterise special permission as an exceptional and discretionary measure granted to a foreign national who is otherwise to be deported. Where the proviso applies, it is therefore not enough to list the fact that you have family here or that you have lived here a long time. Concrete facts capable of showing that refusing residence would itself be inhumane must be assembled and supported by documents and evidence. No outcome can be guaranteed; everything depends on the individual circumstances.

After a prison sentence, when can I apply for special permission to stay?

The timing is fixed by statute. Article 50(2) provides that an application for special permission is made to the Minister of Justice, in accordance with the procedure 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. In other words, the right to apply arises only once detention under a written detention order or a supervision measure decision is in place; before that, what can be done is to press the authorities to exercise their power on their own initiative. Article 50(4) further provides that special permission may be granted only after the person has accepted the finding under Article 47(3) or the judgment under Article 48(8), or after the Minister of Justice has determined that an objection is without grounds. Article 50(3) provides that no application may be made after a written deportation order has been issued. Once the order is issued, the matter moves into the field of judicial relief: an action to revoke the disposition and an application to stay its execution. Finally, where special permission is refused, the person must be promptly notified in writing with reasons attached (Article 50(10)). Those written reasons are important material when deciding how to challenge the decision.

What should be done during the criminal case for the sake of the immigration proceedings?

The very work of keeping the sentence at one year or below, or within the range of a suspended sentence, directly shapes what follows in the immigration proceedings. The statutory penalty for illegal overstay is set by Article 70(1)(v) together with the main clause of Article 70(1): a kōkinkei of not more than three years or a fine of not more than three million yen, or both. That statutory range does not change with the length of the overstay. What changes is which disposition the prosecutor selects and the range within which the sentence falls. In practice, the length of the overstay period is a central element of the seriousness of the offence, because it measures how long the unlawful state of affairs was maintained. Cases involving a shorter period, a voluntary appearance before the authorities, and a clear basis of daily life and family relationships tend towards lighter dispositions; cases where the period runs for years, where unauthorised work is involved, and where further violations such as forged documents are added tend towards heavier ones. There is, however, real variation between cases, and no general rule can be stated. The severity of the criminal disposition and the question of whether you can remain in Japan are in principle separate issues, but on this single point, a sentence exceeding one year to be served, the proviso to Article 50(1) links them directly. That is precisely why work to reduce the criminal disposition and work to obtain special permission to stay must be designed as one thing from the very first step.

What is the point of coming forward before being detected?

A sentence of more than one year to be served does not fall out of the sky. It arrives at the end of a chain: detection, custody, further violations, and responses that are always one step behind. That is why acting while options remain matters. The departure order system under Article 24-3 is available to a person falling under Article 24, item (ii)-4, item (iv)(b), or items (vi) through (vii), and only where all five requirements are met. The first is that the person either appeared voluntarily at an immigration office before the commencement of the violation investigation under Article 27, intending to leave Japan promptly (item (i)(a)), or, after the investigation began but before receiving the notice under Article 47(3), expressed to an immigration inspector or immigration control officer an intention to leave promptly (item (i)(b)). The remaining requirements are that the person does not fall under Article 24, items (iii) through (iii)-5, items (iv)(c) through (iv)(y), item (viii) or item (ix); that since entering Japan the person has not been sentenced to a kōkinkei for the offences listed in Article 24-3, item (iii), which cover the Penal Code chapters on breaking into a residence, counterfeiting, gambling, homicide, injury, unlawful confinement, kidnapping, theft and robbery, fraud and extortion and stolen property, together with certain offences under several special statutes; that the person has never previously been deported from Japan or departed under a departure order under Article 55-85(1); and that the person is expected with certainty to leave Japan promptly. Where a departure order is issued, the supervising immigration inspector sets a departure deadline within a period not exceeding fifteen days (Article 55-85(1)). The procedure does not presuppose detention.

The difference shows up plainly in whether you can come back to Japan. A person who leaves under a departure order is denied landing for one year from the date of departure (Article 5(1)(ix)(e)). By contrast, a person in the Article 24-3, item (i)(b) category, who expressed the intention to leave only after the violation investigation had begun, and who thereafter seeks to engage in the activities of a temporary visitor, faces five years from the date of departure (Article 5(1)(ix)(f)). Further, if detection means the departure order requirements cannot be met and the case proceeds to deportation, the period is five years from the date of deportation where there is no prior deportation or departure order (Article 5(1)(ix)(c)), and ten years where there is such a history (Article 5(1)(ix)(d)). A person deported under Article 24, items (iv)(o) through (iv)(y) is denied landing with no fixed period at all (Article 5(1)(x)). The Guidelines also state expressly that the fact that the foreign national appeared voluntarily at a regional immigration office in order to report their own unlawful residence is treated as a positive factor, while prolonged unlawful residence is assessed as a negative factor. Once matters have advanced to a prison sentence to be served, you move ever further from the departure order requirements, in particular voluntary appearance (item (i)(a)) and the expectation of prompt departure (item (v)). The most realistic way to avoid standing in front of the Article 50(1) proviso at all is to take advice and act while the choice is still yours.

About our office

Funado International Law Office (Fuse Building Main Wing 3F, 3-4-10 Takada, Toshima-ku, Tokyo) is led by attorney Daisuke Matsumura, whose principal areas of focus are criminal defence for foreign nationals, centred on clients of Chinese nationality, and immigration procedures. In cases where a sentence exceeding one year to be served is a realistic possibility, the defence work in the criminal case and the preparation aimed at the later application for special permission to stay have to be advanced on a single plan. In this office, every stage, from the first interview at the detention facility through to the conclusion of the trial, is handled directly by Mr Matsumura. Work is not delegated to clerical staff or junior lawyers.

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. Having an interpreter who acts for the client, separately from the interpreter designated by the investigating authorities, matters a great deal when deciding how to respond to questioning and when establishing the facts accurately. Matters that follow the criminal proceedings, such as renewal or change of status of residence, are handled on a one-stop basis together with an affiliated administrative scrivener.

Two related outcomes may be mentioned. In the first, special permission to stay, regarded as very difficult to obtain, was granted through a single set of proceedings. The client had entered Japan for tourism and had a child with a Japanese woman, but lost his status of residence and was arrested and prosecuted for unlawful residence. Because the marriage and acknowledgment of paternity had not been completed, the authorities initially declined to accept the filings. Mr Matsumura negotiated with the authorities from a constitutional standpoint, secured the marriage and the acknowledgment, and conducted examination of the defendant and of witnesses with the immigration criminal trial in mind. Even where almost no official documents issued by the country of nationality existed, favourable evidence was gathered, past grants by the immigration authorities were analysed, and special permission was obtained.

In the second, a woman suspected of promoting unlawful employment faced deportation. She was in fact innocent. Against the established practice that a ground for deportation requires neither intent nor negligence, proceedings were brought to test the reach of the principle of individual responsibility, and the matter was contested through to the appellate stage. Special permission to stay was subsequently granted by the immigration authorities. Both outcomes rest on the particular circumstances of those cases and do not guarantee the same result. The first consultation is free of charge, and fees are quoted according to the case.

Closing

In overstay cases the earliest choices govern everything that follows. Whether the sentence exceeds one year of kōkinkei to be served is the dividing line that determines whether the statutory wall of the Article 50(1) proviso is raised, and defence work at the criminal stage feeds directly into the outlook for your residence. Understanding precisely which stage you are at, and taking the available steps in order, is what matters most.

This article is a general explanation. For your own case, please consult a lawyer directly. The past outcomes described above rest on the particular circumstances of those cases 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, centred on clients of Chinese nationality, and immigration procedures.

Outcomes 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 very difficult.

Contact

Funado International Law Office

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

WeChat ID: matsumura1119

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