Hiring or Housing Someone Who Has Overstayed in Japan: What Employers and Hosts Need to Know

You have someone working at your shop whose period of stay expired months ago. Or a friend had nowhere to go, so you let them use a spare room. We receive these consultations regularly, and they almost always begin with good intentions. Many people tell us they never imagined that the person doing the hiring or the housing could also be exposed. The Immigration Control and Refugee Recognition Act (Immigration Control Act) does not stop at the person who has overstayed. It also assigns responsibility, in both criminal and administrative form, to those who take part in that person's employment.

What responsibility does an employer face for hiring someone who has overstayed?

The exposure runs along two tracks. On the criminal side, Article 73-2 of the Immigration Control Act makes it an offence to cause a foreign national to engage in illegal work in connection with business activities, among other conduct. On the administrative side, where the employer is itself a foreign national, Article 24, item (iii)-4 makes that conduct a ground for deportation.

Illegal work here includes work for remuneration by a person who holds no status of residence. Once the authorised period of stay has passed, a person can no longer remain in Japan on the basis of a status of residence, so any paid work they do falls within that category, even a few hours of helping out. The precise statutory penalty and the scope of application vary with the conduct involved, so the actual application needs to be checked case by case.

If the employer is a foreign national, can deportation follow even without a criminal penalty?

Yes. Article 24, item (iii)-4 treats the act of promoting illegal work as a ground for deportation in itself, and does not require a conviction.

The contrast with neighbouring provisions makes the structure clear. Article 24, item (iv)(h) requires a guilty verdict under drug-related legislation, and applies even where the sentence is a fine or is suspended. Article 24, item (iv)(i) requires a kōkinkei (custodial sentence) for life or for a term exceeding one year, and excludes a person whose sentence has been suspended in whole. Item (iii)-4 carries no such requirement tied to a criminal disposition. So even where the prosecutor decides not to prosecute, or where the case ends in a fine, deportation proceedings may still move forward on the immigration side.

Does promoting illegal work close off the departure order route?

It does, and in practice this is the heaviest consequence. A departure order under Article 24-3 is available only to a person who satisfies all five of its requirements. The second requirement is that the person falls under none of Article 24, items (iii) through (iii)-5, item (iv)(c) through (iv)(y), item (viii) or item (ix). Item (iii)-4 sits squarely inside that list, so once a person is found to fall under it, the departure order route is closed.

The difference shows up in the period of denial of landing.

• A person who leaves under a departure order is denied landing for one year from the date of departure, under Article 5, paragraph (1), item (ix)(e).
• A person who is deported with no prior record of deportation or departure order is denied landing for five years, under item (ix)(c) of the same paragraph.
• A person who is deported and already has such a record is denied landing for ten years, under item (ix)(d).

The procedures also differ. A departure order does not presuppose detention, whereas deportation proceedings run through a written detention order (Article 39) or a decision on supervision measures (Article 44-2, paragraph (7)).

What if I checked the residence card before hiring?

Having checked does not automatically remove the exposure. Article 24, item (iii)-4 is drafted so that the conduct itself is the ground for deportation, and in practice the authorities have treated the question of whether it applies as not requiring intent or negligence. In a case involving a woman wrongly accused of promoting illegal work, we brought proceedings asking whether the principle of individual culpability reaches this situation and litigated it to the appellate level; even so, we cannot tell you that this practice has generally changed.

That is why building a factual record matters. At the point of hiring, check the status of residence shown on the residence card, the expiry date of the period of stay, and whether permission to engage in activity other than that permitted has been granted, and record what you checked and when. If the person is already on your payroll, simply dismissing them is not a clean solution either, since questions of unpaid wages and of whether a dismissal is lawful arise separately under labour law. Please seek advice before acting on your own reading of the situation.

Is there any liability for merely letting someone who has overstayed live with me?

Providing accommodation is not, by itself, promoting illegal work. What matters is the content of the conduct. Where housing and work are bound together, for instance where a dormitory or company housing is provided to workers, or where a person lives above the shop and helps run it, providing the accommodation may be assessed as part of the act of putting that person to work. The Immigration Control Act also carries penal provisions covering the harbouring or concealing of a person in an irregular situation for the purpose of enabling them to evade deportation, and which provision applies depends on the form the conduct takes.

Conversely, the bare fact that a family member or friend is living under the same roof is not something to panic about. What is assessed is the substance: whether there was a purpose of helping the person evade deportation, and whether the arrangement was tied to employment. And if the person providing the accommodation is a foreign national who was also involved in the work, the analysis returns to Article 24, item (iii)-4.

What additional disadvantages does the worker face?

For the worker, remaining in Japan is itself the offence of illegal residence under Article 70, paragraph (1), item (v). The statutory penalty is a kōkinkei (custodial sentence) of up to three years or a fine of up to three million yen, or both. On the administrative side, Article 24, item (iv)(b) makes the same situation a ground for deportation.

That does not make the fact of working irrelevant. 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 sentencing. Cases that run long and involve illegal work tend towards heavier dispositions, while cases that are short, where the person came forward voluntarily, and where the basis of daily life and family ties are clear, tend towards lighter ones, with real variation between cases. On the other hand, a case involving illegal residence alone does not fall within the heightened requirement in the proviso to Article 50, paragraph (1), which applies to persons sentenced to a kōkinkei for life or for a term exceeding one year, excluding those whose sentence has been suspended in whole. Keeping the criminal disposition from escalating therefore protects the ground on which special permission to stay is argued, which is why the criminal side and the immigration side must be designed as one from the very first step.

Why moving first, before enforcement action, matters

Employment cases have a distinctive feature: enforcement is sometimes directed at a place rather than a person. An inspection at business premises can bring the worker and the employer into the picture at the same moment, which makes the timing of any move decisive for both.

Article 24-3, item (i)(a) covers a person who, before an investigation into violations under Article 27 has begun, appears voluntarily at an immigration office with the intention of leaving Japan promptly; where such a person departs under a departure order, the period of denial of landing is one year, as set out above. By contrast, a person who expresses the intention to depart after the investigation has begun but before receiving the notice under Article 47, paragraph (3) falls under Article 24-3, item (i)(b), and if that person later seeks to enter for short-term stay activities, the period is five years under Article 5, paragraph (1), item (ix)(f). If enforcement action means the other requirements are not met, the departure order is unavailable altogether, leaving deportation with five or ten years. The Guidelines expressly treat appearing voluntarily at a regional immigration office to report one's illegal residence as a positive factor.

There is an important caveat. Where the employer is a foreign national found to fall under Article 24, item (iii)-4, the departure order route is not open to the employer at all. The best course for the worker and the best course for the employer may not coincide, and because the interests can conflict, we recommend that each side consult a lawyer separately.

About our office

Our office concentrates on criminal defence for foreign nationals and on immigration procedures, with a client base drawn primarily from Chinese nationals. Attorney Matsumura handles every stage personally, from the first visit to a client in police custody through to the close of trial, and work is not passed to clerks or junior lawyers. A dedicated Chinese-language interpreter experienced in cases involving foreign nationals is present at the office, so a client can use an interpreter who works for them, separately from the interpreter appointed by the investigating authorities; for languages other than Chinese, we arrange an interpreter according to the needs of the case. Renewal or change of status of residence after criminal proceedings conclude is handled together with an affiliated administrative scrivener as a single service.

One matter close to this topic involved a woman wrongly accused of promoting illegal work who faced deportation. Against the established practice that a ground for deportation requires neither intent nor negligence, we brought proceedings testing how far the principle of individual culpability extends and litigated to the appellate level. Special permission to stay was subsequently granted to her by the immigration authorities.

In another matter, a client who had lost his status of residence and been arrested and prosecuted obtained special permission to stay. The marriage and acknowledgment of paternity had not been completed and the authorities initially refused to accept the filings; Attorney Matsumura negotiated from a constitutional perspective, secured both, analysed the authorities' past grant decisions, and special permission to stay was obtained in a single set of proceedings.

The first consultation is free of charge, and fees are quoted according to the nature of the case. We accept consultations from employers, from those providing accommodation, and from the person concerned; where interests may conflict, we may advise that each side instruct a different lawyer.

Closing

The responsibility of an employer or a host is not resolved by saying that one did not know, or that one meant well. Article 24, item (iii)-4 makes the conduct itself a ground for deportation, and once it applies, the departure order route closes and the period of denial of landing moves from one year to five or ten. There is real value in mapping out what the facts are and which provisions they may touch, before events begin to move on their own.

This article is a general explanation. For an individual case, please consult a lawyer directly. Past results reflect the particular circumstances of those cases and do not guarantee a similar outcome.

Author

Daisuke Matsumura, Attorney at Law

Dai-Ichi Tokyo Bar Association (Registration No. 59077, admitted 2019)

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

Concentrates on criminal defence for foreign nationals and immigration procedures, with a client base drawn primarily from 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 a matter regarded as difficult.

Contact

Funado International Law Office

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

WeChat ID: matsumura1119

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