Overstaying in Japan: How Much Does It Change If You Turn Yourself In Before You Are Caught?

Your period of stay expired, and you are still in Japan. You feel a weight every time you look at a calendar, and your heart jumps when you see a police officer at the station. Yet you still have a job, you still have family here, and tomorrow you still have to live in the same place. For people in this situation, the question we hear most often is simple: should I go to the Immigration Services Agency myself, or is it better to stay quiet?

There is an answer to that question, and it does not lie in feelings. It lies in the statute. Whether you are detected by the authorities or come forward on your own changes, as a matter of law, how many doors remain open to you afterwards. This article separates that difference into two layers: the difference written into the law, and the difference in how the law is applied. It also explains what does not change even if you report yourself.

What actually changes in law between being caught and reporting yourself?

In short, two things. First, whether you can use the departure order system (shukkoku meirei), which does not presuppose detention, under Article 24-3 of the Immigration Control and Refugee Recognition Act (the "Immigration Control Act"). Second, whether the period during which you are denied landing in Japan under Article 5, paragraph (1), item (ix) will be one year, five years, or ten years.

Some things do not change. Remaining in Japan beyond your authorized period of stay is a ground for deportation under Article 24, item (iv)(b), and reporting yourself does not remove that. Illegal residence is also a criminal offence under Article 70, paragraph (1), item (v), punishable by a kōkinkei (custodial sentence) of not more than three years or a fine of not more than three million yen, or both. Coming forward does not erase that criminality. Separating "what changes" from "what does not change" is the starting point for any decision.

Why does reporting yourself open the door to a departure order?

Because Article 24-3 of the Immigration Control Act limits who may receive a departure order. It applies to a foreign national 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.

• Item (i): (a) the person appeared at an immigration office voluntarily, with the intention of leaving Japan promptly, before a violation investigation under Article 27 began; or (b) after such an investigation began but before receiving the notice under Article 47, paragraph (3), the person stated to an immigration inspector or immigration control officer an intention to leave Japan promptly.
• Item (ii): the person does not fall under any of Article 24, items (iii) through (iii)-5, item (iv)(c) through (iv)(y), item (viii) or item (ix).
• Item (iii): since entering Japan, the person has not been sentenced to a kōkinkei (custodial sentence) for offences including breaking into a residence; counterfeiting of currency, documents or securities, and offences concerning electromagnetic records of payment cards; gambling; homicide; injury; unlawful capture and confinement; kidnapping and abduction; theft and robbery; fraud and extortion; offences concerning stolen property; offences under Articles 1, 1-2 and 1-3 of the Act on Punishment of Physical Violence and Others; offences under the Act for Prevention of Burglary; offences under Articles 15 and 16 of the Act on Prohibition of Possession of Special Picking Tools; offences under Article 2 and Article 6, paragraph (1) of the Act on Punishment of Acts Inflicting Death or Injury on Others by Driving a Motor Vehicle; and the offence under Article 22 of the Act on Prevention of Disposal of Stolen Specified Metal Products.
• Item (iv): the person has never previously been deported from Japan, and has never previously departed under a departure order pursuant to Article 55-85, paragraph (1).
• Item (v): the person is expected, with certainty, to leave Japan promptly.

Item (i) is the requirement that turns on your own conduct. If you state your intention to leave only after the procedure has moved forward, and the notice under Article 47, paragraph (3) has already been served, you no longer satisfy item (i). The departure order option is one that closes, door by door, as time passes.

If I leave under a departure order, how soon can I return to Japan?

As a rule, one year from the date of departure, under Article 5, paragraph (1), item (ix)(e). By contrast, a person who is deported is denied landing for five years from the date of deportation (item (ix)(c)), and a person who is deported again after a previous deportation or a previous departure under a departure order is denied landing for ten years (item (ix)(d)). The provisions are as follows.

• Departed under a departure order / Article 5(1)(ix)(e) / one year from the date of departure.
• A person falling under Article 24-3, item (i)(b) who departed under a departure order and thereafter seeks to engage in the activities of a temporary visitor / Article 5(1)(ix)(f) / five years from the date of departure.
• A person subject to deportation who received a decision under Article 52, paragraph (5) and departed voluntarily within the deadline (excluding those seeking temporary visitor status) / Article 5(1)(ix)(b) / one year from the date of departure.
• A person deported with no prior deportation and no prior departure under a departure order / Article 5(1)(ix)(c) / five years from the date of deportation.
• A person deported who already had a prior deportation or a prior departure under a departure order / Article 5(1)(ix)(d) / ten years from the date of deportation.
• A person deported as falling under Article 24, item (iv)(e) through (iv)(y) / Article 5(1)(x) / no fixed period.

In addition, Article 5, paragraph (1), item (v) sets no time limit for a record of punishment under narcotics-related legislation, so that denial of landing has no fixed end date. Many people say, at the moment of decision, that they never intend to come back to Japan. Family circumstances and work opportunities change more often than expected. The gap between one year, five years, and ten years cannot be recovered later.

Is it still worth expressing an intention to leave after the investigation has started?

Yes, but the terms change. Under Article 24-3, item (i)(b), even after a violation investigation has begun, if you state to an immigration inspector or immigration control officer an intention to leave Japan promptly before the notice under Article 47, paragraph (3) is served, you may still qualify for a departure order, provided the other requirements are met. However, a person who qualifies under item (i)(b), departs under a departure order, and thereafter seeks to engage in the activities of a temporary visitor is denied landing for five years from the date of departure under Article 5(1)(ix)(f).

In other words, appearing voluntarily before the investigation begins (item (i)(a)) and stating your intention after it begins (item (i)(b)) are alike in that both make it easier to avoid detention, but they differ by four years when you later try to visit Japan on a short stay. Whether you moved first is written into the statute as a four-year difference.

If I turn myself in for overstaying, will I be detained immediately?

No one can promise that you will not be detained. What can be said is that the departure order procedure is structurally different from deportation because it does not presuppose detention. Where a departure order is issued, the supervising immigration inspector orders prompt departure and fixes a departure deadline within a period not exceeding fifteen days (Article 55-85, paragraph (1)). Conditions such as restrictions on residence and area of movement may be attached (paragraph (3) of the same Article).

Deportation procedure runs differently. After a violation investigation (Article 27 and following), the case proceeds through detention under a written detention order (Article 39) or a supervision measure decision (Article 44-2, paragraph (7)), then to a violation examination by an immigration inspector (Article 45 and following) and a finding (Article 47, paragraph (3)). If you contest the finding, you may request an oral hearing (Article 48); if you contest the special inquiry officer's determination (Article 48, paragraph (8)), you may file an objection with the Minister of Justice (Article 49). After that ruling, the case moves either to special permission to stay (Article 50) or to the issuance of a written deportation order (Article 51).

Note carefully where the right to apply for special permission to stay sits. Article 50, paragraph (2) provides that the application is made, in accordance with Ministry of Justice Order, by a foreign national who has been detained under a written detention order or who has received a supervision measure decision. Before that stage, what you can do is not an application but an effort to prompt the Minister to act on his or her own authority. And once a written deportation order has been issued, no application can be made at all (Article 50, paragraph (3)). Where you stand in the procedure determines which tools remain available.

How is "coming forward voluntarily" evaluated for special permission to stay?

It is treated as a positive factor. The Guidelines on Special Permission to Stay (revised March 2024, in force from 10 June 2024) describe special permission to stay as a measure granted exceptionally and as a matter of grace to a foreign national who is otherwise to be deported, and then set out how each of the factors listed in Article 50, paragraph (5) is assessed. Under the heading of "other circumstances," the Guidelines expressly state that the fact that the foreign national appeared voluntarily at a regional immigration office in order to report their illegal stay is considered as a positive factor.

Article 50, paragraph (5) requires consideration of the reasons for wishing to stay, family relationships, conduct, the circumstances of entry into Japan, the length of stay 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 circumstances. Voluntary appearance sits within "other circumstances" and is weighed together with everything else. Reporting yourself therefore does not by itself produce permission.

At the same time, the same Guidelines treat a prolonged illegal stay as a negative factor. The longer you wait, the more the positive factor is diluted and the more the negative factor accumulates. Where permission is refused, the authorities must promptly notify the person in writing with a statement of reasons (Article 50, paragraph (10)), so there remains room to examine the reasoning before deciding on the next step.

Does coming forward help on the criminal side?

The statutory penalty for illegal residence is the same regardless of how long the overstay lasted: a kōkinkei (custodial sentence) of not more than three years or a fine of not more than three million yen, or both (Article 70, paragraph (1), main clause and item (v)). What changes is not the statutory penalty but the prosecutor's choice of disposition and the range of sentencing.

In practice, the length of the overstay is central, because it measures how long the unlawful state of affairs was allowed to continue. Cases with a shorter period, voluntary appearance, and a clear basis of livelihood and family relationships tend toward lighter dispositions. Cases running for years, involving unlawful work, and compounded by other violations such as forged documents tend toward heavier ones. The range varies considerably from case to case, and any concrete forecast has to be made individually.

One more point deserves emphasis. The severity of the criminal disposition and whether you can remain in Japan are separate questions. Even if the prosecutor drops the case, and even if the sentence is suspended, the deportation procedure still proceeds by force of Article 24, item (iv)(b). Conversely, if you receive an actual custodial sentence exceeding one year, the proviso to Article 50, paragraph (1) applies, and permission may then be granted only where there are found to be special circumstances such that refusing permission to stay would be lacking in humanitarian consideration, a distinctly higher threshold. A case involving illegal residence alone (Article 24, item (iv)(b)) does not fall under that proviso, which is an important point in your favour. This is precisely why work to reduce the criminal disposition and work to obtain special permission to stay must be designed together from the very first steps.

What it means to act before you are caught

As set out above, the difference between being caught and reporting yourself is not a matter of attitude. It is written into the provisions. Appearing voluntarily before a violation investigation begins falls under Article 24-3, item (i)(a), and a departure under a departure order then carries a one-year denial of landing (Article 5(1)(ix)(e)). Stating your intention only after the investigation has begun (item (i)(b)) means five years if you later seek to enter as a temporary visitor (Article 5(1)(ix)(f)). If detection means you fail items (ii), (iii) or (iv), the departure order is unavailable altogether, and deportation brings five years (Article 5(1)(ix)(c)) or ten years (Article 5(1)(ix)(d)).

Time runs in one direction only. Once the violation investigation begins, the door under item (i)(a) closes. Once the notice under Article 47, paragraph (3) is served, the door under item (i)(b) closes as well. Once a written deportation order is issued, you can no longer even apply for special permission to stay (Article 50, paragraph (3)). Choosing to "wait and see a little longer" is, in practice, the same as choosing to give up the available options one by one.

That said, going in immediately is not always the best course. For those with a genuine basis for seeking to remain (marriage to a Japanese national, care of a child, a medical need), how far the supporting evidence has been assembled before you appear changes the weight of everything that follows. What to prepare, when, and in what order should be designed case by case. That is why we ask you to speak with us before you decide to go in.

About our office

Funado International Law Office is located at Fuse Building Main Wing 3F, 3-4-10 Takada, Toshima-ku, Tokyo. Daisuke Matsumura, the attorney in charge, is a member of the Dai-ichi Tokyo Bar Association (registration number 59077, admitted in 2019). His principal areas of focus are criminal defence for foreign nationals, mainly clients of Chinese nationality, and immigration procedures.

Three points characterise how we work. First, Mr. Matsumura personally handles every stage, from the first detention centre visit through to the close of trial; the work is not delegated to clerks or junior lawyers. Second, 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 needs of the case. This means you can use an interpreter who works for you, separately from the interpreter appointed by the investigating authorities. Third, matters that follow the criminal case, such as renewal or change of status of residence, are handled on a one-stop basis together with an affiliated administrative scrivener (gyōsei shoshi).

Two examples of past cases follow.

In one, a client who had entered Japan for tourism had a child with a Japanese woman, lost his status of residence, and was arrested and prosecuted for illegal residence. The marriage and acknowledgment of paternity had not yet been completed, and the authorities initially refused to accept the filings. Mr. Matsumura negotiated with the authorities from a constitutional standpoint, secured both the marriage and the acknowledgment, and conducted the defendant's examination and witness examinations with the immigration consequences firmly in view. Despite the near absence of official documents issued by the client's country of nationality, favourable evidence was gathered, and by analysing past cases in which the immigration authorities had granted permission, special permission to stay was obtained in a single round of proceedings.

In another, a woman was wrongly accused of promoting unlawful employment and faced deportation. Against the established practice that a ground for deportation requires neither intent nor negligence, the office brought proceedings testing the reach of the principle of culpability, and litigated through to the appellate stage. 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 case. Whether you are still considering whether to report yourself, have already been contacted by the police or immigration authorities, or have a family member in custody, please contact us first.

In closing

The difference between being caught and coming forward shows up in three places: whether a departure order is available, whether the denial of landing runs for one year, five years, or ten years, and whether you hold a positive factor when special permission to stay is assessed. In each case, the structure is the same, in that the options narrow as time passes. The time spent hesitating is itself quietly closing off the paths available to you.

This article is a general explanation. For your own case, please consult a lawyer directly. The past case results described above rest on 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 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, mainly clients of Chinese nationality, and immigration procedures.

Results include an acquittal in a case under the Stimulants Control Act (possession for the purpose of profit), a decision not to prosecute 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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