Departure Order in Japan: The Five Requirements Under Article 24-3 Explained for Overstayers

You stayed past the expiry date on your residence card, and you are still in Japan. Nothing has happened yet, but the worry does not go away. Will immigration find you? Will you be detained? What happens to your family? One of the questions we hear most often is whether the departure order system can be used. A departure order (shukkoku meirei, 出国命令) allows a person to leave Japan on their own, without the detention that normally accompanies deportation proceedings, and it shortens the period during which they are barred from returning. But it is not available to everyone. Article 24-3 of the Immigration Control and Refugee Recognition Act (Immigration Control Act) sets out five requirements, and all five must be satisfied. This article goes through them one by one, in the order they appear in the statute.

A note on citation format: Japanese statutes divide items into sub-items labelled with the Japanese characters i, ro, ha, ni, ho, he. In English these are conventionally rendered as (a), (b), (c), (d), (e), (f). This article uses the letters and gives the Japanese original where it helps.

What is a departure order, and how is it different from deportation?

A departure order is a procedure under which a foreign national who meets certain requirements is ordered to leave Japan on their own, without detention being the starting point (Article 24-3). The supervising immigration inspector orders prompt departure and sets a deadline that may not exceed 15 days (Article 55-85, paragraph (1)). Conditions may be attached, such as restrictions on residence and on the area of movement (Article 55-85, paragraph (3)).

Two differences from ordinary deportation proceedings matter most. First, a departure order does not presuppose physical detention under a written detention order. Second, the length of the landing denial period, that is, the period during which the person cannot re-enter Japan, is different. A person who leaves under a departure order is barred for one year from the date of departure (Article 5, paragraph (1), item (ix)(e)). A person who is deported is barred for five years from the date of deportation if they have no prior deportation and no prior departure order (Article 5, paragraph (1), item (ix)(c)), and for ten years if they do (item (ix)(d)). That difference shapes years of a person's life.

Which grounds for deportation can lead to a departure order?

Article 24-3 applies to foreign nationals who fall under Article 24, item (ii)-4, item (iv)(b), or items (vi) through (vii). Overstaying falls under Article 24, item (iv)(b), which covers a person who remains in Japan beyond their period of stay without receiving an extension or a change of status. So an overstayer is standing at the entrance to this procedure.

Standing at the entrance, however, is not the same as qualifying. Article 24-3 requires that all five of the following requirements be met. If even one is missing, a departure order is not available.

Requirement 1: Until when does coming forward voluntarily still count?

The first requirement is split into two alternatives. Under (a), the person appeared at an immigration office of their own accord, with the intention of leaving Japan promptly, before a violation investigation under Article 27 had begun. Under (b), after a violation investigation had begun but before receiving the notice under Article 47, paragraph (3), the person stated to an immigration inspector or an immigration control officer that they intend to leave Japan promptly.

In other words, the law offers two routes: coming forward before the investigation starts, and stating an intention to leave after it has started but before the finding is served. The point to watch is that which of the two applies changes what happens after departure. Where (a) applies and the person leaves under a departure order, the landing denial period is one year (Article 5, paragraph (1), item (ix)(e)). Where (b) applies and the person later seeks to come to Japan for activities under the temporary visitor status, the period becomes five years from the date of departure (item (ix)(f)). The same departure order, the same person, and a four-year difference produced by nothing more than the timing of coming forward.

Requirement 2: Do any other grounds for deportation also apply?

The second requirement is that the person does not fall under Article 24, items (iii) through (iii)-5, items (iv)(c) through (iv)(y), item (viii), or item (ix). Pure overstaying stops at item (iv)(b). Once something else is layered on top, this requirement fails.

The provisions that cause trouble in practice are the ones listed from item (iv)(c) onward, and the neighbouring items. Promoting illegal employment under Article 24, item (iii)-4 applies on the basis of the conduct itself and does not require that the person has been criminally punished. A guilty verdict for a drug-related offence under Article 24, item (iv)(h) applies even where the sentence was only a fine, and even where the sentence was suspended. Many people believe their situation is simply an overstay, when in law other grounds apply as well. Working this out requires reading the structure of the statute against the facts.

Requirement 3: Does a past conviction always rule out a departure order?

The third requirement is that, after entering Japan, the person has not been sentenced to kokinkei (custodial sentence) for certain offences. The list covers the Penal Code, Part II, Chapter XII (breaking into a residence), Chapters XVI through XIX (counterfeiting of currency, forgery of documents, forgery of securities, and unauthorised creation of electromagnetic records of payment cards), Chapter XXIII (gambling), Chapter XXVI (homicide), Chapter XXVII (injury), Chapter XXXI (unlawful capture and confinement), Chapter XXXIII (kidnapping and abduction), Chapter XXXVI (theft and robbery), Chapter XXXVII (fraud and extortion), and Chapter XXXIX (stolen property); offences under Articles 1, 1-2 and 1-3 of the Act on Punishment of Physical Violence; offences under the Act for Prevention of Robbery; 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.

Two points deserve attention. First, only offences committed after entry into Japan are covered. Second, what the provision requires is that the person has not been sentenced to a custodial sentence, so a sentence limited to a fine does not fall within this requirement on the face of the text. It is also worth noting that this provision contains no express carve-out for persons whose sentence was suspended. Article 24, item (iv)(i) and the proviso to Article 50, paragraph (1) each contain express exclusions of that kind, and Article 24-3, requirement 3 is drafted differently. Whether a particular record falls within this requirement depends on the offence, the provision applied and the sentence imposed, so please bring a copy of the judgment or summary order to the consultation.

Requirement 4: What if you have been deported before?

The fourth requirement is that the person has never previously been deported from Japan and has never previously left Japan under a departure order issued pursuant to Article 55-85, paragraph (1). One prior deportation, or one prior departure under a departure order, is enough to fail this requirement. In practical terms, the departure order is a once-in-a-lifetime procedure.

This connects directly to the landing denial period. A person with a prior deportation or a prior departure order who is deported is barred for ten years from the date of deportation (Article 5, paragraph (1), item (ix)(d)). For anyone who has already left Japan once through immigration proceedings, the second time has to be planned with much greater care.

Requirement 5: What does it mean to be expected to leave promptly and reliably?

The fifth requirement is that the person is expected to leave Japan promptly and reliably. The first four requirements look backwards at facts that have already happened. This one looks forward and calls for a prediction, which means the question becomes how concretely that prediction can be supported.

Is there a valid passport? Are travel funds available? Is there somewhere to live and someone to rely on in the home country? Has the lease in Japan been ended and the work situation wound up? These matters should be capable of being explained on paper. Conversely, an expired passport or a lack of documents establishing civil status in the home country will slow things down, because a replacement passport has to be obtained through the embassy or consulate. That is work to begin before coming forward, not after.

If you want to stay in Japan, should you still choose a departure order?

This is where misunderstandings arise most often, so it should be said plainly. A departure order is built on the premise of leaving Japan. For someone with a Japanese spouse or children, or with a long-established life in Japan, a departure order may not be the right choice at all. In that situation the procedure has to be built around seeking special permission to stay (zairyu tokubetsu kyoka) under Article 50.

Special permission to stay can be sought by formal application only by a foreign national who has been detained under a written detention order or who has received a supervision measure decision (Article 50, paragraph (2)). No application can be made once a written deportation order has been issued (Article 50, paragraph (3)). In deciding, the Minister of Justice considers the reasons for wishing to remain, family relationships, conduct, the circumstances of entry into Japan, the length of stay and the legal status during that time, the facts constituting the grounds for deportation, and the need for humanitarian consideration, as well as domestic and international circumstances and the effect on illegal residents in Japan, among other matters (Article 50, paragraph (5)). Choosing between departure and an application to remain is a decision that is hard to reverse once the process is in motion, so it should be made before anyone walks into an immigration office.

Why acting before you are detected matters

Look again at the five requirements. Two of them are about timing. Requirement 4, the absence of a prior deportation or departure order, cannot be changed now. Requirement 1 can. Coming forward before a violation investigation begins puts a person within (a), and departure under a departure order carries a one-year bar. A statement made after the investigation has begun falls within (b), and a later attempt to enter as a temporary visitor carries a five-year bar. If detection also brings requirement 2 or requirement 3 into play, the departure order disappears as an option altogether, leaving deportation with a five-year bar (Article 5, paragraph (1), item (ix)(c)) or a ten-year bar (item (ix)(d)).

What produces that difference is not ability and not luck. It is when a person acts. The same is true on the side of special permission to stay: the Guidelines on Special Permission to Stay, revised in March of Reiwa 6 and in force from 10 June of the same year, expressly state that the fact that the foreign national came forward voluntarily to a regional immigration office in order to report their unlawful residence is treated as a positive factor. Prolonged unlawful residence, by contrast, is treated as a negative factor. The system is not built so that waiting improves the position.

About our office

Funado International Law Office is located 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. Daisuke Matsumura, a member of the Daiichi Tokyo Bar Association, handles every stage personally, from the first visit at the detention facility to the close of trial. The work is not passed to clerks or junior lawyers.

As for language support, a dedicated Chinese interpreter experienced in cases involving foreign nationals is on staff at the office. For other languages, we arrange an interpreter according to the requirements of the case. Having an interpreter who works for the client, separate from the interpreter appointed by the investigating authorities, matters a great deal when the five requirements above have to be examined against your own facts. After the criminal and immigration proceedings are over, renewals and changes of status of residence are handled together with an affiliated administrative scrivener.

Two examples of past work. In one case, a client who had come to Japan as a tourist had a child with a Japanese woman, then lost his status of residence and was arrested and prosecuted for unlawful residence. Because the marriage and the acknowledgment of paternity had not been completed, the authorities initially refused to accept the filings. Mr Matsumura negotiated with the authorities from a constitutional standpoint, secured the marriage and the acknowledgment, gathered favourable evidence in circumstances where almost no official documents were available from the country of nationality, analysed the immigration authorities' past grant decisions, and obtained special permission to stay in a single round of proceedings.

In the other, a woman was wrongly accused of promoting illegal employment and faced deportation. Against the established practice that grounds for deportation require neither intent nor negligence, we brought proceedings testing how far the principle of individual responsibility extends, 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. Fees are quoted according to the case.

Closing

A departure order is available only when all five requirements are met at once, and requirement 1 is still within reach of today's decision. The larger choice, whether to leave Japan or to seek permission to remain, has to be made before you come forward, because the options narrow as time passes. Whichever path you take, the starting point is an accurate reading of your own situation against the text of the statute.

This article is a general explanation. For your particular situation, please consult a lawyer directly. The past results described above arose from the individual circumstances of those cases and are not a guarantee of a similar outcome.

Author

Daisuke Matsumura, Attorney at Law

Daiichi 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.

Past 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 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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