Overstaying a Visa in Japan Is a Crime, Not Just an Expired Card: The Legal Basis Explained

Your period of stay has expired, and you are still living in Japan. Every time you look at the date on your residence card, something tightens in your chest, yet there is no one you feel you can talk to, and another day passes. People in this situation often tell us the same thing: it is only a document that expired, so surely the paperwork can be redone at some point. The feeling is understandable, but under Japanese law, remaining in Japan after your period of stay has expired is not simply a lapsed document. It is a crime defined by the Immigration Control and Refugee Recognition Act (hereafter the Immigration Control Act), and at the same time it is a ground on which you can be deported. This article walks through the legal basis, article by article.

Is overstaying actually a crime in Japan?

Yes. It constitutes the offence of illegal residence under Article 70, paragraph (1), item (v) of the Immigration Control Act (入管法70条1項5号). That provision covers a person who "remains in Japan beyond the period of stay (including the period during which the person may stay in Japan under Article 20, paragraph (6)) without receiving an extension or change of the period of stay." The simple fact that your period of stay has expired while you are still in Japan satisfies the elements of this provision.

The statutory penalty appears in the main clause of Article 70, paragraph (1): a kōkinkei (custodial sentence) of up to three years, or a fine of up to three million yen, or both. The word kōkinkei may be unfamiliar. Under the Penal Code as amended in 2022 and in force from 1 June 2025, the two former types of custodial sentence were abolished and merged into the single sentence of kōkinkei. The phrase "or both" means that a custodial sentence and a fine may be imposed together.

Why is this not simply an administrative paperwork problem?

Because two entirely different tracks run at the same time in an overstay case: a criminal track and an administrative track. For many people, the greatest harm comes from letting time pass without understanding that this is a two-track structure.

The first track is criminal. As an offence under Article 70, paragraph (1), item (v), the case becomes the subject of investigation by the police or by immigration control officers, and a public prosecutor decides whether to bring charges.

The second track is administrative, namely the deportation procedure. Article 24, item (iv)(b) of the Immigration Control Act (24条4号ロ) lists, as a person subject to deportation, one who "remains in Japan beyond the period of stay without receiving an extension or change of the period of stay." The wording is almost identical to that of Article 70, paragraph (1), item (v). In other words, the single fact of overstaying is at once a basis for criminal punishment and a ground for being required to leave Japan.

If I pay the fine, can I stay in Japan?

No. The end of the criminal process is not the end of the immigration process. Even if you pay a fine, and even if the case ends without prosecution, the fact that brings you within Article 24, item (iv)(b) does not disappear. The deportation procedure continues along its own separate track.

Put the other way round, a light outcome in the criminal case does not mean you may remain in Japan. It is more accurate to expect that the decision about your residence begins in earnest only after the criminal outcome is known.

If I receive a suspended sentence, am I safe from deportation?

A suspended sentence does not stop the deportation procedure. This point is widely misunderstood, so it is worth reading the provisions closely.

Article 24, item (iv)(i) of the Immigration Control Act (24条4号リ) lists, as a ground for deportation, "in addition to those set out in (d) through (h), a person who has been sentenced, on or after 1 November 1951, to a kōkinkei for an indefinite term or for a term exceeding one year," and then adds: "provided, however, that this excludes a person who has received a suspension of execution of the whole of the sentence, and a person who has received a suspension of execution of part of the sentence where the portion not suspended is one year or less." It is true that a person given a fully suspended sentence does not fall within item (iv)(i).

That is no reason to relax, however. Whatever the criminal court decides, a person who has overstayed already falls within a ground for deportation under Article 24, item (iv)(b). Not falling within item (iv)(i) merely means that one ground for deportation is absent. The belief that "a suspended sentence means I can stay" confuses the relationship between these two items.

Is it still a crime if I overstayed by only a few days?

As far as the statutory penalty is concerned, the length of the overstay makes no difference. The range of up to three years of kōkinkei or a fine of up to three million yen is the same whether the overstay lasted days or years. What the length of the overstay changes is not the statutory penalty but which disposition the prosecutor chooses and the range of sentencing.

In practice, the length of an overstay, understood as the period over which an unlawful situation was maintained, is a central factor bearing directly on the severity of the disposition. Cases in which the period is short, the person voluntarily appeared before a regional immigration services bureau, and the basis of daily life and family relationships is clear tend to move towards lighter dispositions. Cases in which the period runs on at length, and in which unlawful work or the use of forged documents is added on top, tend to move towards heavier ones. These are tendencies only, and outcomes vary considerably from case to case.

One further point. If you filed an application to extend or change your period of stay within the deadline and no decision has yet been made, Article 20, paragraph (6) allows you to remain in Japan for a defined further period. That is precisely why the parenthetical wording in Article 70, paragraph (1), item (v) expressly includes that period. If your application is pending, first confirm whether you are inside this special period.

If it is a crime, is there no way to remain in Japan?

The door is not closed. Article 50 of the Immigration Control Act provides that even for a person subject to deportation, the Minister of Justice may grant special permission to stay, either on the application of the foreign national concerned or on the Minister's own authority. This is known as special permission to stay (在留特別許可). Most overstay cases are decided under item (v) of paragraph (1), covering cases where "the Minister of Justice otherwise finds grounds for specially permitting the person to stay."

Here there is one favourable point for cases involving nothing but an overstay. The proviso to Article 50, paragraph (1) imposes a heavier requirement on persons sentenced to a kōkinkei for an indefinite term or for a term exceeding one year (excluding those whose sentence was wholly suspended, and those given a partial suspension where the unsuspended portion is one year or less), and on certain other categories: permission may be granted "only where the Minister finds special circumstances such that refusing to permit the person to stay in Japan would be found to lack humanitarian consideration." A case involving only illegal residence under Article 24, item (iv)(b) does not fall within this aggravated requirement. Conversely, once a case results in an unsuspended sentence exceeding one year, that heavier requirement applies.

The matters to be considered are set out by statute in Article 50, paragraph (5): the reason for wishing to stay, family relationships, conduct, the circumstances of entering Japan, the length of stay in Japan and the legal status held during it, the facts giving rise to 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, Article 50, paragraph (10) requires that the person be notified promptly by a written document stating the reasons.

Procedurally, Article 50, paragraph (2) provides that an application for special permission to stay is made by a foreign national detained under a written detention order, or one subject to a supervision measure decision. In other words, the option of making a formal application arises only once the procedure has reached that stage. And under Article 50, paragraph (3), no application may be made after a written deportation order has been issued. There is, in short, a window of time for what can be done.

What does it mean to act before you are detected?

You may be thinking that if this is a crime, all the more reason to stay quiet. The structure of the law points the other way: the statute itself contains mechanisms that give favourable effect to those who come forward.

Article 24-3 provides for the departure order system, a procedure that does not presuppose detention. It applies to a person who falls under Article 24, item (ii)-4, item (iv)(b), or items (vi) through (vii), and who satisfies all five of the following requirements. First, the person must fall within either (a) "a person who, before the commencement of a violation investigation under Article 27, has voluntarily appeared at an immigration services office with the intention of promptly departing from Japan," or (b) "a person who, after the commencement of a violation investigation and before receiving the notice under Article 47, paragraph (3), has stated to an immigration inspector or immigration control officer that they intend to depart from Japan promptly." Second, the person must not fall under Article 24, items (iii) through (iii)-5, item (iv)(c) through (iv) sub-item ヨ, item (viii), or item (ix). Third, after entering Japan the person must not have been sentenced to a kōkinkei for certain listed offences, including breaking into a residence, counterfeiting of currency, documents, securities or electromagnetic records for payment cards, gambling, homicide, injury, unlawful capture and confinement, kidnapping and abduction, theft and robbery, fraud and extortion, and offences concerning stolen property. Fourth, the person must never have been deported from Japan, nor have departed under a departure order pursuant to Article 55-85, paragraph (1). Fifth, the person must be expected with certainty to depart from 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, paragraph (1)).

What follows makes a substantial difference. The period during which you are denied landing before you may next enter Japan diverges under Article 5, paragraph (1), item (ix). A person who departs under a departure order is denied landing for one year from the date of departure under sub-item (e) (ホ). However, where a person falling within Article 24-3, item (i)(b), that is, one who expressed the intention to depart only after the violation investigation had begun, departs under a departure order and then seeks to engage in activities as a temporary visitor, the period is five years from the date of departure under sub-item (f) (ヘ). Further, where detection means the requirements for a departure order are not met and the case proceeds to deportation, the period is five years from the date of deportation under sub-item (c) (ハ), and for a person with a prior deportation or departure order it is ten years under sub-item (d) (ニ). Where deportation follows from Article 24, item (iv), sub-items オ through ヨ, Article 5, paragraph (1), item (x) sets no fixed period at all.

Administrative practice points the same way. 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 voluntarily appeared at a regional immigration services bureau in order to report their illegal residence is taken into account as a positive factor. Prolonged illegal residence, by contrast, is assessed as a negative factor. The longer you wait, the fewer the favourable elements and the greater the unfavourable ones.

About our office

Funado International Law Office (3F Fuse Building Main Wing, 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. Daisuke Matsumura, attorney at law (Daiichi Tokyo Bar Association, registration number 59077, admitted 2019), personally handles every stage, from the first visit at the police station through to the close of trial and on into the immigration procedure. The work is not passed to clerical staff or to 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. Being able to use an interpreter who acts for you, separately from the interpreter designated by the investigating authorities, matters a great deal, because the nuances of what is said during questioning and during immigration interviews can shape later decisions. For matters after the criminal process ends, such as extending or changing a status of residence, we work together with an affiliated administrative scrivener so that everything is handled in one place.

Two examples may be helpful. In one case, a client who had come to Japan as a tourist had a child with a Japanese woman, lost his status of residence, became an illegal resident, and was arrested and prosecuted. Because the marriage and the acknowledgement of paternity had not been completed, the authorities initially declined to accept the filings. Mr Matsumura negotiated with the authorities from a constitutional standpoint, the marriage and the acknowledgement were achieved, and questioning of the defendant and examination of witnesses were conducted with the criminal trial for violation of the Immigration Control Act firmly in view. Although almost no official documents were available from the country of nationality, favourable evidence was gathered and past cases in which the immigration authorities had granted permission were analysed, and special permission to stay was obtained in a single round of proceedings.

In another case, a woman was wrongly accused of the offence of promoting illegal work and faced deportation. Against the established practice that neither intent nor negligence is required for a ground of deportation to apply, litigation was brought to test how far the principle of individual responsibility extends, and the matter was pursued to the appellate court. Special permission to stay was subsequently granted by the immigration authorities.

The first consultation is free of charge, and fees are quoted according to the circumstances of the case.

Closing

An overstay is not merely a document that has run out of date. It is a crime under Article 70, paragraph (1), item (v), and at the same time a ground for deportation under Article 24, item (iv)(b). Understanding that two-track structure correctly, and then deciding at which stage and in what way to act, does a great deal to shape what follows. In particular, whether a departure order remains available, and whether you may next come to Japan after one year, five years or ten years, are determined by the moment at which you begin to act.

This article is a general explanation. For your own case, please consult a lawyer directly. Past results are based on the particular circumstances of each case and do not guarantee a similar outcome.

Author

Daisuke Matsumura, Attorney at Law

Daiichi Tokyo Bar Association (registration number: 59077, admitted 2019)

Funado International Law Office (3F Fuse Building Main Wing, 3-4-10 Takada, Toshima-ku, Tokyo)

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

Results 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 cases regarded as difficult.

Contact

Funado International Law Office

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

WeChat ID: matsumura1119

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