Overstaying in Japan: Why Reporting Yourself Before the Violation Investigation Begins Can Mean a 1-Year Ban Instead of a 5-Year Ban

Many people who have overstayed their period of stay in Japan describe the same sequence of events. They intended to go to the Immigration Services Agency and report themselves, but before they could, a police officer stopped them on the street. Or an immigration control officer had already begun looking into their case, and only afterwards did they say that they wanted to leave Japan. The question that follows is always the same: is it too late now? Under the Immigration Control and Refugee Recognition Act (the "Immigration Control Act"), the decisive line is whether you came forward before the violation investigation began, or expressed your intention to leave after it began. That single difference can change how long you must wait before you can enter Japan again, from one year to five.

What actually changes depending on whether the violation investigation has begun

What changes is not primarily whether you can receive a departure order, but how long you are denied landing in Japan after you leave. Article 24-3, item (i) of the Immigration Control Act covers both the person who reports voluntarily before the violation investigation begins (sub-item (a)) and the person who expresses an intention to leave after it begins (sub-item (b)). In other words, being caught first does not automatically close the departure order route. However, under Article 5, paragraph (1), item (ix)(f), a person falling under Article 24-3, item (i)(b) who departs under a departure order and who subsequently seeks to engage in the activities of Temporary Visitor status is denied landing for five years from the date of departure. By contrast, the general rule for someone who departs under a departure order is one year under Article 5, paragraph (1), item (ix)(e).

Where exactly do sub-items (a) and (b) of Article 24-3, item (i) divide?

The dividing line is the commencement of the violation investigation under Article 27. The two sub-items read as follows.

• (a) A person who, before the commencement of the violation investigation under Article 27, appeared voluntarily at an immigration office with the intention of promptly departing from Japan.
• (b) A person who, after the commencement of the violation investigation and before receiving the notice under Article 47, paragraph (3), expressed to an immigration inspector or immigration control officer the intention to depart promptly from Japan.

Sub-item (a) describes someone who walked into the immigration office on their own initiative before any investigation started. Sub-item (b) describes someone who, once the investigation was already under way, told an immigration inspector or immigration control officer that they wished to leave. Both can qualify for a departure order, but as explained below, the conditions for returning to Japan afterwards are not the same.

When does a "violation investigation" begin?

It begins when an immigration control officer starts investigating under Article 27 of the Immigration Control Act. The point that deserves emphasis is that the foreign national concerned has almost no way of confirming when that moment occurred. An investigation may already be under way through workplace inspections or inquiries to third parties, entirely without the person's knowledge. Being stopped by police, or receiving a call from immigration, usually happens after something has already been set in motion.

This means that deciding to "wait a little longer and see" is, in substance, a bet on facts you cannot verify. What separates sub-item (a) from sub-item (b) is not sincerity or effort. It is simply timing. That is why the decision to come forward should not be postponed.

Can you still receive a departure order after you have already been caught?

It is possible, because of Article 24-3, item (i)(b). There are, however, two limits.

The first is a time limit. Sub-item (b) requires the statement of intention to be made before the notice under Article 47, paragraph (3) is received. Deportation proceedings begin with the violation investigation (Article 27 onwards), pass through a written detention order (Article 39) or a supervision measure decision (Article 44-2, paragraph (7)), continue to the violation examination by an immigration inspector (Article 45 onwards), and reach the finding notified under Article 47, paragraph (3). Once that notice has been received, sub-item (b) is no longer available.

The second is a set of substantive limits. To be eligible for a departure order, all five requirements of Article 24-3, items (i) through (v) must be satisfied: (1) falling under item (i)(a) or (b); (2) not falling under any of Article 24, items (iii) through (iii)-5, item (iv)(c) through (iv)(y), item (viii) or item (ix); (3) not having been sentenced, after entering Japan, to kōkinkei (custodial sentence) for certain offences under the Penal Code (breaking into a residence; counterfeiting of currency, documents, securities and electromagnetic records of payment cards; gambling; homicide; injury; unlawful capture and confinement; kidnapping and abduction; theft and robbery; fraud and extortion; stolen property) or for the other offences listed in that provision; (4) never having been deported from Japan, and never having departed under a departure order pursuant to Article 55-85, paragraph (1); and (5) being reasonably expected to depart from Japan promptly.

Why is the five-year bar limited to Temporary Visitor status?

Because Article 5, paragraph (1), item (ix)(f) is written that way. It applies to a person falling under Article 24-3, item (i)(b) who departed under a departure order and who subsequently seeks to engage in the activities of Temporary Visitor status, and it denies landing for five years from the date of departure.

As a result, even among people who left under a departure order, someone who reported voluntarily before the investigation began (item (i)(a)) is measured by the one-year period under Article 5, paragraph (1), item (ix)(e). Someone who expressed the intention only after the investigation began (item (i)(b)) is also measured by that one-year period when seeking to enter under a status of residence other than Temporary Visitor. The five-year period under item (ix)(f) applies only where the purpose of the new entry is Temporary Visitor activity.

This means the answer can differ with your reason for returning. A short trip for sightseeing, visiting relatives or business raises the five-year period, while returning under a work status or a status such as Spouse or Child of Japanese National is measured against one year. Even then, the expiry of the landing denial period does not mean entry is assured. Separately there is the issuance of a visa, the question of whether your activities fit a status of residence, and the landing permission criteria, and a past overstay will inevitably be taken into account. Outcomes vary considerably with the individual circumstances.

How soon must you leave Japan after receiving a departure order?

Under Article 55-85, paragraph (1), the supervising immigration inspector orders prompt departure and sets a departure deadline within a period not exceeding 15 days. Under paragraph (3) of the same Article, conditions may be attached, such as restrictions on residence and area of movement.

Unlike deportation proceedings, the departure order procedure is not premised on detention. Not having to go through the process while held in custody makes a practical difference: time with family, packing, settling wages, and terminating a lease all become manageable. If, however, you remain in Japan beyond the departure deadline, Article 70, paragraph (1), item (viii)-2 comes into play.

What happens if a departure order is not available?

The case proceeds as deportation. The landing denial periods are then as follows.

• A person who was subject to deportation but received a decision under Article 52, paragraph (5) and departed voluntarily by the deadline (excluding entry for Temporary Visitor purposes): Article 5, paragraph (1), item (ix)(b), one year from the date of departure.
• A person deported who had no prior deportation or departure order history: Article 5, paragraph (1), item (ix)(c), five years from the date of deportation.
• A person deported who already had a prior deportation or departure order history: Article 5, paragraph (1), item (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, paragraph (1), item (x), no fixed period.

In addition, Article 5, paragraph (1), item (v), which concerns a record of punishment under narcotics-related legislation, has no time limit either, and results in an indefinite landing denial. The question of whether a departure order is available is therefore not merely one year versus five years. It is also the question of whether you move onto the ladder of five years, ten years, or no fixed period at all.

What criminal penalty applies to overstaying?

Remaining in Japan beyond your period of stay is not only an administrative matter. It is a crime. Article 70, paragraph (1), item (v) of the Immigration Control Act punishes "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 obtaining an extension or change of the period of stay." The statutory penalty is kōkinkei (custodial sentence) of not more than three years, a fine of not more than 3,000,000 yen, or both.

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. As a tendency, cases with a shorter overstay, voluntary reporting, and a clear basis of daily life and family relationships tend toward lighter dispositions, while cases involving a long overstay, unauthorised work, and additional violations such as forged documents tend toward heavier ones. The range varies from case to case, and no figure can be given.

One further point matters greatly. The severity of the criminal disposition and the ability to remain in Japan are separate questions. Even with a suspended sentence or a decision not to prosecute, an overstay falls under Article 24, item (iv)(b) as a ground for deportation, and the deportation procedure continues. Conversely, a custodial sentence exceeding one year triggers the additional requirement in the proviso to Article 50, paragraph (1), and the outlook for special permission to stay becomes far more difficult. It is worth noting that a case involving only unlawful residence under Article 24, item (iv)(b) does not fall within that proviso, which is a favourable feature. For that reason, the work of reducing the criminal disposition and the work of seeking special permission to stay must be designed together from the very first steps.

What it means to act before you are caught

In this context, reporting yourself is not an abstract gesture of sincerity. It changes your position under the statute. Appear voluntarily before the violation investigation begins and you fall under Article 24-3, item (i)(a), so that departure under a departure order carries the one-year period of Article 5, paragraph (1), item (ix)(e). Express the intention only after the investigation has begun and you fall under item (i)(b), so that a later entry for Temporary Visitor activity carries the five-year period of item (ix)(f). If enforcement action means you no longer satisfy items (ii), (iii) or (iv), the departure order is unavailable altogether, and you move to deportation with five years under item (ix)(c) or ten years under item (ix)(d).

This difference in status is usually decided by a matter of days or weeks. The same wish to leave Japan produces a different answer depending on whether it was expressed before or after the investigation started, and that answer determines when you can next see your family.

In addition, the Guidelines on Special Permission to Stay, revised in March 2024 and in force from 10 June 2024, state expressly, under the heading of other circumstances, that the fact that the foreign national appeared voluntarily at a regional immigration office in order to report their unlawful residence is taken into account as a positive factor. A prolonged period of unlawful residence, by contrast, is assessed as a negative factor. The same Guidelines position special permission to stay as an exceptional and discretionary measure for a foreign national who is otherwise to be deported. It is never automatic. Even so, knowing where the act of coming forward sits within the system is valuable.

About our office

Funado International Law Office (Fuse Building Main Wing 3F, 3-4-10 Takada, Toshima-ku, Tokyo) focuses on criminal defence for foreign nationals and on immigration procedures, primarily for clients of Chinese nationality.

Three features define how we work. First, Attorney Daisuke Matsumura personally handles every stage, from the first detention visit through to the close of trial; the work is not delegated to clerks or junior lawyers. Second, a dedicated Chinese interpreter experienced in cases involving foreign nationals is on staff, so that a client can use an interpreter working for them rather than only the interpreter designated by the investigating authorities; for languages other than Chinese, we arrange an interpreter according to the requirements of the case. Third, for matters after the criminal proceedings end, such as extension or change of status of residence, we work on a one-stop basis with an affiliated administrative scrivener.

Two resolved cases are relevant to this topic.

Case D-1. A client who came to Japan as a tourist had a child with a Japanese woman, lost his status of residence, and was arrested and prosecuted for unlawful residence. Because the marriage and acknowledgement of paternity were incomplete, the authorities initially refused the filings. We negotiated from a constitutional perspective, achieved the marriage and acknowledgement, gathered favourable evidence and analysed past grants, and special permission to stay was obtained in a single procedure.

Case D-2. Wrongly accused of promoting illegal employment, the client faced deportation. Against the established practice that grounds for deportation require neither intent nor negligence, we brought litigation testing the reach of the principle of individual culpability and pursued it to the appellate stage. Special permission to stay was subsequently granted.

The first consultation is free of charge. Fees are quoted according to the case. Before contacting us, it helps to have three things clear: when your period of stay expired, what contact or investigation you have received so far, and whether you have family in Japan.

Closing

The line between "before" and "after" the violation investigation is drawn where you cannot see it. Yet which side of that line you stand on decides whether you can next set foot in Japan in one year, in five, or after the five or ten years that follow deportation. The earlier you act, the more roads remain open.

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 circumstances 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)

Focuses 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 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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