Children Born to Overstaying Parents in Japan: Residence Status, School and Special Permission to Stay

One of the questions we are asked most often by families who have overstayed their period of stay in Japan is not about themselves. It is about their children. The child was born in Japan, grew up speaking Japanese, and attends the local school, but has no residence card, and every time the conversation turns to the next school year the worry grows. Many parents tell us that they are less frightened for themselves than for their child's future. This article explains, following the text of the Immigration Control and Refugee Recognition Act (Immigration Control Act, 出入国管理及び難民認定法), where a child born into an overstaying family stands legally, and at which points the family still has choices.

Does a child born in Japan automatically become a Japanese national?

No. Being born on Japanese soil does not by itself confer Japanese nationality. Japanese nationality law is built around the nationality of the parents rather than the place of birth. Where both parents are foreign nationals, a child born in Japan is treated as a foreign national as well. The outcome can differ where, for example, the father is a Japanese national and acknowledgement of paternity (認知) or marriage is completed. This area is highly fact-specific, so please do not rely on assumptions; confirm the position early.

What residence status does the child of overstaying parents have?

A child born in Japan must go through a procedure to acquire a residence status within a set period after birth. If the family continues living in Japan without completing that procedure, the child too is left with no residence status (在留資格) and is placed, legally speaking, in a position where he or she may become subject to deportation. In other words, the parents' immigration situation is transferred directly onto the child's legal position.

As for the parents, remaining in Japan beyond the authorised period of stay is a ground for deportation under Article 24, item (iv)(b) of the Immigration Control Act, and at the same time constitutes the offence of illegal overstay under Article 70, paragraph 1, item (v). The child did not choose this situation. Yet under the structure of the law, the whole family ends up without residence status.

Can a child without residence status attend school in Japan?

In practice, local elementary and junior high schools widely accept children of compulsory school age regardless of residence status, and many such children grow up with Japanese as their first language. The constraints appear elsewhere. Access to health insurance and to various administrative services depends on the scheme and on how each municipality applies it, and there are situations in which enrolment or use is not possible. When the child moves on to high school and, later, to further study or work, the absence of a residence status becomes a concrete barrier, and the older the child grows, the less the problem can be postponed.

How does having children affect a decision on special permission to stay?

Article 50, paragraph 1 of the Immigration Control Act provides that even where a person falls within the categories subject to deportation, the Minister of Justice may grant special permission to stay (在留特別許可), either on the application of the foreign national or ex officio. Most overstay cases proceed under item (v) of that paragraph: where the Minister finds other grounds on which residence should specially be permitted.

Paragraph 5 now sets out the factors to be considered as a matter of law: the reasons for wishing to remain, family relationships, conduct, the circumstances of entry into Japan, the length of residence, the legal status held during that time, 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 circumstances. The fact that "family relationships" and "the need for humanitarian consideration" appear expressly in the statute matters. The child's age, the years spent growing up in Japan, Japanese language ability, school attendance, whether the child has ever lived in the country of nationality, and how education and daily life could realistically continue there are all matters to be argued concretely within those two statutory factors.

That said, the Guidelines on Special Permission to Stay (revised March 2024, in force from 10 June 2024) describe special permission as an exceptional and discretionary measure granted to foreign nationals who are otherwise to be removed from Japan. Having a child does not, on its own, produce a permission. The Guidelines treat prolonged illegal residence as a negative factor, while expressly stating that voluntarily appearing at a regional immigration services bureau in order to report one's own illegal residence is taken into account as a positive factor.

If a parent is criminally punished, does that affect the child's residence?

It does, but the severity of the criminal outcome and the family's ability to remain in Japan move on separate tracks.

The statutory penalty for illegal overstay, under the main clause of Article 70, paragraph 1, is kōkinkei (custodial sentence) of up to three years, a fine of up to 3,000,000 yen, or both. Even if the whole of the sentence is suspended in the criminal court, deportation proceedings do not stop. Article 24, item (iv)(i) makes a person sentenced to a kōkinkei for life or for more than one year subject to deportation, while excluding those whose sentence is suspended in whole; but illegal overstay is already a ground for deportation under Article 24, item (iv)(b). The belief that "the sentence was suspended, so our residence is safe" is simply wrong.

Conversely, where a parent receives an unsuspended kōkinkei of more than one year, the proviso to Article 50, paragraph 1 applies, and permission may then be granted only where it is found that there are special circumstances such that refusing residence in Japan would be lacking in humanitarian consideration. A case involving only illegal overstay (Article 24, item (iv)(b)) does not fall under that proviso. That is a favourable starting point for the family, but it is lost as the criminal outcome becomes heavier. This is precisely why work to keep the criminal disposition light and work to obtain special permission to stay must be designed together from the very first step.

When can an application for special permission to stay be filed?

Article 50, paragraph 2 provides that the application 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. Only from that stage can the matter take the form of an application; before it, the work consists of asking the authorities to exercise their power on their own initiative. Paragraph 3 provides that no application may be made once a written deportation order has been issued. The procedure runs from the violation investigation through detention or supervision measures, examination by an immigration inspector and a finding under Article 47, paragraph 3, a hearing and the special inquiry officer's determination under Article 48, paragraph 8, and an objection to the Minister of Justice. Special permission is considered after the person accepts the finding or determination, or after the objection is dismissed as unfounded (Article 50, paragraph 4). Once a deportation order is issued, the remaining routes are judicial: an action to revoke the disposition and an application for a stay of execution. Where special permission is refused, notice must be given promptly in writing with reasons attached (Article 50, paragraph 10).

What difference does it make if the family comes forward before being caught?

Families with children often let time pass, afraid that taking any step will lead to detention. The law, however, provides plainly different outcomes for those who come forward and those who are apprehended.

The departure order system under Article 24-3 applies to a foreign national falling under Article 24, item (ii)-4, item (iv)(b), or items (vi) to (vii), who satisfies all five requirements: (1) having appeared voluntarily at an immigration services office with the intention of leaving Japan promptly, before a violation investigation under Article 27 has begun (item (i)(a)), or having stated an intention to leave Japan promptly after the investigation has begun but before receiving the notice under Article 47, paragraph 3 (item (i)(b)); (2) not falling under Article 24, items (iii) to (iii)-5, item (iv)(c) to (iv)(yo), item (viii) or item (ix); (3) not having been sentenced, after entry into Japan, to a kōkinkei for any of the offences the provision lists, among them breaking into a residence, counterfeiting of currency, documents or securities, gambling, homicide, injury, unlawful capture and confinement, kidnapping, theft and robbery, fraud and extortion, offences concerning stolen property, and offences under certain special statutes such as the Act on Punishment of Physical Violence and Others; (4) never having been deported from Japan and never having departed under a departure order; and (5) being expected with certainty to leave Japan promptly. Where a departure order is issued, the supervising immigration inspector sets a departure deadline not exceeding 15 days (Article 55-85, paragraph 1).

The difference then shows up in whether the family can return. A person who appeared voluntarily before the violation investigation began and departed under a departure order is denied landing for one year from the date of departure (Article 5, paragraph 1, item (ix)(e)). By contrast, a person who stated the intention to depart only after the investigation had begun (Article 24-3, item (i)(b)) faces five years if he or she later seeks to come to Japan for activities under a temporary visitor status (Article 5, paragraph 1, item (ix)(f)). If apprehension means the requirements for a departure order are not met and the person is deported, the period is five years from the date of removal (item (ix)(c)), or ten years where there is a prior deportation or departure order (item (ix)(d)).

Seen against a child's education, that gap of years bears directly on the family's plans for life. Whether the goal is to remain in Japan or to depart once and return later on a proper residence status, the range of options is widest before a violation investigation begins.

About our office

Funado International Law Office (Fuse Building Main Wing 3F, 3-4-10 Takada, Toshima-ku, Tokyo) concentrates on criminal defence for foreign nationals and on immigration procedures, primarily for clients of Chinese nationality. Daisuke Matsumura is a member of the Dai-Ichi Tokyo Bar Association (registration number 59077, admitted 2019). Two resolved matters involving families are set out below.

Case D-1: special permission to stay, regarded as difficult to obtain, granted in a single set of proceedings. The client had entered Japan as a tourist and had a child with a Japanese woman, but lost his residence status and was arrested and prosecuted for illegal residence. Marriage and acknowledgement of paternity had not been completed and the authorities initially declined the filings. Mr Matsumura negotiated from a constitutional standpoint and secured both, then conducted the examination of the defendant and witnesses with the criminal trial firmly in view. Although almost no official documents from the country of nationality existed, favourable evidence was assembled and past grants by the immigration authorities were analysed, and special permission to stay was obtained in one round of proceedings.

Case D-2: a woman facing deportation after a wrongful accusation. She was accused of promoting illegal employment and faced removal. Against the established practice that grounds for deportation require neither intent nor negligence, litigation was brought questioning the reach of the principle of culpability, and fought through to the appellate court. Special permission to stay was subsequently granted by the immigration authorities.

On how we work: Mr Matsumura handles every stage personally, from the first detention visit to the close of trial, without delegating the work to clerks or junior lawyers. A dedicated Chinese-language interpreter experienced in cases involving foreign nationals is based at the office, so clients can use an interpreter acting for them rather than only the interpreter assigned by the investigating authorities; for other languages, an interpreter is arranged according to the needs of the case. After the criminal proceedings end, renewals and changes of residence status are handled together with an affiliated administrative scrivener. The first consultation is free of charge, and fees are quoted according to the matter.

Closing

A child's immigration problem narrows the family's options as time passes. It stays out of sight while school life continues, then appears all at once at the point of further education or employment. Whichever path a family chooses, the moments before a violation investigation begins, and before a written deportation order is issued, carry great legal weight.

This article is a general explanation. For your own situation, please consult a lawyer directly. The resolved cases described above rest on their own particular facts and are not a guarantee of a similar outcome.

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)

Concentrates on criminal defence for foreign nationals and immigration procedures, primarily for clients of Chinese nationality.

Results 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 matter regarded as difficult.

Contact

Funado International Law Office

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

WeChat ID: matsumura1119

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