Overstaying in Japan: Why the Criminal Case and the Deportation Case Run at the Same Time

If your period of stay has expired and you are still in Japan, or if a family member is in that situation, you have probably asked one of these questions. He was arrested by the police, so once the criminal case ends, can he stay in Japan? The prosecutor decided not to indict, so surely that is the end of it? The answer is not what most people expect. The criminal process and the deportation process run by the Immigration Services Agency are two separate tracks that move at the same time, and when one ends the other does not disappear. This article follows the text of the Immigration Control and Refugee Recognition Act (Immigration Control Act, 入管法) to show where the two tracks connect and where they part.

Why does one overstay create two separate procedures?

Because a single fact is at once a criminal offence and a ground for removing a person from Japan.

The criminal track is Article 70, paragraph (1), item (v), which applies to a person who remains in Japan beyond the period of stay without receiving an extension or a change of that period. The penalty in the main clause of that paragraph is kōkinkei (custodial sentence) of not more than three years, or a fine of not more than three million yen, or both. The immigration track is Article 24, item (iv)(b), which makes the same fact a ground for deportation. That is not punishment but an administrative procedure. The criminal side is handled by the police, the prosecutor and the court; the immigration side by immigration control officers, immigration inspectors, special inquiry officers and the Minister of Justice. Treating the two as one is the most common reason people misjudge what to do first.

Does the immigration procedure stop until the criminal case finishes?

No. It moves forward while the criminal case is still running.

Article 63, paragraph (1) provides that where procedures under laws on criminal proceedings and related laws are being carried out against a foreign national subject to deportation, the deportation procedure may still be conducted in accordance with Chapter V, even where the person is not detained and even where no supervision measure under Article 44-2, paragraph (1) has been imposed. The violation investigation and the examination continue while the person is held by the police or a detention house.

That paragraph also contains replacement rules for reading other provisions. Under Article 50, paragraph (2), an application for special permission to stay may normally be filed by a foreign national detained under a written detention order or subject to a supervision measure decision. Within the Article 63, paragraph (1) procedure, that wording is read as a foreign national referred for examination by an immigration inspector under Article 45, paragraph (1). So even while held within the criminal process, a person referred to immigration examination may be in a position to apply.

If the prosecutor decides not to indict, can I simply stay in Japan?

No. A decision not to indict ends the criminal case, not the immigration case.

Article 64, paragraph (1) provides that where a prosecutor has taken custody of a suspect for an offence under Article 70 and decides not to institute prosecution, then on presentation by an immigration control officer of a written detention order or a written deportation order the prosecutor must release the suspect and hand the suspect over to that officer, and on notice of a supervision measure decision must release the suspect. Release is not necessarily freedom; it can mean being passed straight into the immigration procedure. The ground for deportation under Article 24, item (iv)(b) does not disappear because the case was dropped.

After arrest, can the police hand a person over to immigration?

Yes, and that decision is made within a very short window.

Article 65, paragraph (1) provides that where a judicial police officer has arrested or taken custody of a suspect for an offence under Article 70 (excluding the offences under items (ix) and (x) of that paragraph), then only where there is no suspicion that the person has committed any other offence, the officer may, notwithstanding Article 203 of the Code of Criminal Procedure, hand the suspect over to an immigration control officer with the documents and evidence where a written detention order has been issued, or release the suspect and hand over the documents and evidence where a supervision measure decision has been made. Paragraph (2) requires this within 48 hours from the time the person was physically restrained. If there is no other suspicion the case moves to the immigration track; if there is, it stays on the criminal track. That fork is settled at the very start, which is why counsel must move as soon as news of the arrest arrives.

If the sentence is suspended, does that avoid deportation?

No. This is one of the most widespread misunderstandings.

Article 24, item (iv)(i) treats a person sentenced to life imprisonment or to a kōkinkei exceeding one year as subject to deportation, but expressly excludes a person whose sentence is suspended in its entirety, and a person given a partial suspension where the unsuspended part is one year or less. A fully suspended sentence therefore does not bring a person within item (iv)(i), but that person already falls under Article 24, item (iv)(b).

Conversely, an actual custodial sentence exceeding one year triggers the proviso to Article 50, paragraph (1), under which special permission to stay may be granted only where refusing permission to stay in Japan is found to be lacking in humanitarian consideration by reason of special circumstances. Read the other way, a case of illegal residence alone, under Article 24, item (iv)(b), is not subject to that heightened requirement. Work on the criminal outcome and work on special permission to stay must be designed together from the first day.

Can I still apply for special permission to stay after a deportation order is issued?

No. Article 50, paragraph (3) states that an application may not be filed after a written deportation order has been issued.

The timing is fixed by Article 50, paragraph (4): permission may only be granted after the person has accepted the finding under Article 47, paragraph (3) or the determination under Article 48, paragraph (8), or after the Minister of Justice has ruled an objection to be without grounds. The sequence runs from the violation investigation (Article 27 onwards) through a written detention order (Article 39) or a supervision measure decision, examination by an immigration inspector (Article 45), the finding (Article 47, paragraph (3)), a request for a hearing (Article 48), the determination (Article 48, paragraph (8)) and an objection to the Minister of Justice (Article 49), before either special permission to stay (Article 50) or a written deportation order (Article 51). Every stage before the order issues is a stage at which arguments and materials must be put forward in full.

Enforcement timing also reflects the two tracks. Article 63, paragraph (2) provides that the order is enforced after the criminal and related procedures have ended, though it may be enforced during service of a sentence with the permission of the Prosecutor-General or a Superintending Prosecutor. Not being removed before the criminal case ends does not mean the deportation decision itself is postponed.

What difference does it make to come forward before being detected?

Because both tracks run together, which track you enter, and through which door, is decisive. Article 62, paragraph (2) requires officials of the State or of a local public entity who learn in the course of their duties of a foreign national believed to fall under any item of Article 24 to report this. Waiting to be detected is not really a choice.

A person who comes forward voluntarily may qualify for the departure order system under Article 24-3, which requires all five of its requirements. Item (i)(a) covers a person who, before a violation investigation under Article 27 has begun, appears at an immigration office of their own accord intending to leave Japan promptly. The others are item (ii) (not falling under Article 24, items (iii) to (iii)-5, item (iv)(c) through the final sub-item, item (viii) or item (ix)); item (iii) (not having been sentenced to a kōkinkei after entry for offences including breaking into a residence, counterfeiting of currency, documents and securities, gambling, homicide, injury, theft and robbery, fraud and extortion, and the other listed offences); item (iv) (never previously deported from Japan or departed under a departure order); and item (v) (expected to leave Japan promptly and reliably). Where a departure order is issued, the supervising immigration inspector sets a departure deadline within a period not exceeding 15 days (Article 55-85, paragraph (1)), and the procedure does not presuppose detention.

The clearest difference is the period of denial of landing. A person who departs under a departure order is denied landing for one year from the date of departure under Article 5, paragraph (1), item (ix)(e). Where the intention to leave was expressed only after the violation investigation had begun, falling under Article 24-3, item (i)(b), and the person later seeks to engage in the activities of a temporary visitor, the period is five years under item (ix)(f). If detection means the requirements for a departure order cannot be met, deportation follows: five years under item (ix)(c) with no previous deportation or departure order, and ten years under item (ix)(d) where such a history exists. The Guidelines on Special Permission to Stay (revised in March 2024, in force from 10 June 2024) treat special permission as an exceptional and discretionary measure, and state that appearing voluntarily at a regional immigration office in order to report illegal residence is taken into account as a positive factor, while prolonged illegal residence is a negative factor.

About our office

Funado International Law Office is 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. The attorney in charge, Daisuke Matsumura, is a member of the Dai-Ichi Tokyo Bar Association (registration number 59077, admitted 2019).

Three features define how we work. First, Mr. Matsumura personally handles every stage, from the first interview at the detention facility to the close of trial, without delegating to clerical staff or junior attorneys. Where the criminal and immigration tracks move together, what was said and when becomes material for later decisions, so one attorney holding the whole picture has real value. Second, a dedicated Chinese interpreter experienced in cases involving foreign nationals is permanently based at our office; for other languages we arrange an interpreter according to the circumstances of the case. The client therefore has access to an interpreter acting for the client, separate from the one appointed by the investigating authorities. Third, matters after the criminal process, such as renewal or change of status of residence, are handled together with an affiliated administrative scrivener.

Case D-1: special permission to stay, regarded as difficult to obtain, secured in a single round of proceedings. The client entered Japan for tourism and had a child with a Japanese woman, but lost his status of residence and was arrested and prosecuted for illegal residence. Marriage and acknowledgment of paternity were incomplete and the filings were initially refused. Mr. Matsumura negotiated with the authorities from a constitutional standpoint, achieved the marriage and the acknowledgment, and conducted the defendant questioning and witness examination with the immigration case in view. Despite the near absence of official documents from the country of nationality, favourable evidence was gathered and past grant decisions analysed, and permission was obtained in one round.

Case D-2: relief for a woman facing deportation over an allegation of promoting illegal work. Wrongly accused of promoting illegal employment, she 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 culpability and pursued it to the appellate level. Special permission to stay was subsequently granted.

The first consultation is free of charge. Fees are quoted according to the case.

Closing note

The criminal case and the immigration case are separate procedures, yet each early step affects both. The 48 hours after arrest, the moment of a non-prosecution decision, and the finding, determination and ruling on objection arrive in sequence, and once a written deportation order is issued an application for special permission to stay is no longer possible. The time available to act is limited.

This article is a general explanation. For an individual case, please consult a lawyer directly. Past outcomes reflect the particular circumstances of those cases 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)

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

Outcomes 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 special permission to stay in a case regarded as difficult.

Contact

Funado International Law Office

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

WeChat ID: matsumura1119

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