When Is a Departure Order No Longer Available After You Are Caught Overstaying in Japan?

If you are living in Japan after your period of stay has expired, one question keeps coming back: if the police or the Immigration Services Agency find me, is the departure order system already out of reach? A departure order lets you leave Japan without the detention that normally accompanies deportation proceedings, and the waiting period before you can return is shorter. Whether you can use it depends on meeting all five requirements in Article 24-3 of the Immigration Control and Refugee Recognition Act (Immigration Control Act). This article works through them and explains which requirement closes the door once you have been caught.

If I have already been caught, is a departure order impossible?

Not necessarily. The mere fact that a violation investigation has begun does not destroy the possibility of a departure order. Article 24-3, item (i) provides two entrances. Sub-item イ (a) covers a person who, before a violation investigation under Article 27 begins, voluntarily appears at a regional immigration services bureau intending to leave Japan promptly. Sub-item ロ (b) covers a person who, after the investigation has begun but before receiving the notice under Article 47, paragraph (3), tells an immigration inspector or immigration control officer that he or she intends to leave Japan promptly. Even after an investigation has started, item (i) can still be satisfied so long as the finding has not been notified.

The difficulty is that Article 24-3 requires all five items to be satisfied. Where a person has been caught, the reason a departure order becomes unavailable usually lies in items (ii), (iii) and (iv).

What are the five requirements for a departure order?

A departure order is available to a foreign national who falls under Article 24, item (ii)-4, item (iv)(b) (ロ), or items (vi) through (vii), and who satisfies all of the following. Overstaying is Article 24, item (iv)(b) (ロ), so an overstayer stands at the entrance to the system.

• Item (i): the person falls under either イ (voluntary appearance before the violation investigation begins) or ロ (expression of intent to depart after it begins but before the Article 47, paragraph (3) notice).
• Item (ii): the person does not fall under any of Article 24, items (iii) through (iii)-5, item (iv) sub-items ハ (ha) through ヨ (yo), item (viii) or item (ix).
• Item (iii): the person has not, after entering Japan, been sentenced to a kōkinkei (custodial sentence) for certain listed offences.
• Item (iv): the person has never been deported from Japan, nor departed under a departure order issued under Article 55-85, paragraph (1).
• Item (v): it is reasonably expected that the person will leave Japan promptly.

Where a departure order is issued, the supervising immigration inspector orders prompt departure and fixes a deadline within a period not exceeding 15 days (Article 55-85, paragraph (1)), and may attach conditions such as restrictions on residence and area of movement (paragraph (3)). Unlike deportation proceedings, the departure order procedure is not premised on detention.

What circumstances knock you out under item (ii)?

Overstaying itself is Article 24, item (iv)(b) (ロ), which is not on the item (ii) exclusion list. What removes people from the system is an overstay combined with something else. Three situations arise often.

• Article 24, item (iv)(h) (チ): a guilty judgment for violation of drug-related legislation. This applies even where the penalty is only a fine, and even where the sentence is suspended. A drug case closes off the departure order route by itself.
• Article 24, item (iv)(i) (リ): a person sentenced, on or after 1 November 1951, to life imprisonment or to a kōkinkei exceeding one year. Excluded are those whose sentence was suspended in whole, and those given a partially suspended sentence where the unsuspended part is one year or less. In substance, this means an actual custodial term exceeding one year.
• Article 24, item (iii)-4: conduct promoting the illegal employment of foreign nationals. This item is satisfied by the conduct alone and does not require criminal punishment.

In practice, the trigger for being caught is often not the overstay itself but a separate incident. The first thing to check is whether that incident feeds directly into one of the item (ii) exclusions.

Does a custodial sentence for the offences listed in item (iii) rule out a departure order?

Item (iii) requires that the person, after entering Japan, has not been sentenced to a kōkinkei for the listed offences. The list comprises offences under Part II of the Penal Code, Chapter XII (breaking into a residence), Chapters XVI to XIX (counterfeiting of currency, forgery of documents, forgery of securities, and 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 and Others; offences under the Act for Prevention of Robbery and Other Related Matters; 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.

Three points matter. First, the provision is limited to sentences imposed after entering Japan, so a conviction from before you came is outside item (iii). Second, the wording is sentenced to a kōkinkei, so a disposition ending in a fine does not match it. Third, Article 24, item (iv)(i) (リ) contains an express carve-out for suspended sentences, whereas Article 24-3, item (iii) contains no such wording. That difference means a suspended custodial sentence does not allow you to skip the item (iii) analysis.

Note that the offence of overstaying itself, under Article 70, paragraph (1), item (v) (a kōkinkei of up to three years or a fine of up to 3 million yen, or both), does not appear in the item (iii) list. If the sentence is an actual custodial term exceeding one year, however, the person is caught by Article 24, item (iv)(i) (リ) and excluded under item (ii).

Can I use a departure order if I have been deported before?

No. Under item (iv), a person who has previously been deported from Japan, or who has previously left under a departure order issued under Article 55-85, paragraph (1), is outside the system. One such episode is enough, and the case proceeds under deportation procedures instead.

This also affects the period of denial of landing. A person with no such history who is deported is denied landing for five years from the date of departure under Article 5, paragraph (1), item (ix)(c) (ハ); a person who already has such a history and is deported again is denied landing for ten years under item (ix)(d) (ニ). Item (iv) is not a requirement you can arrange to satisfy after the fact. Because a single past episode constrains your options for years, it is the heaviest of the five.

What does it mean to be reasonably expected to leave Japan promptly?

Item (v) asks about the practical feasibility of departure: whether you hold a passport or can have one reissued, whether you can secure an air ticket and the cost of leaving, whether your residence and a person who can vouch for you are clear until departure, and whether someone will receive you on return. Conversely, if you appear likely to disappear, or no preparation has been made at all, this requirement becomes hard to meet. If you are considering appearing voluntarily, arranging your passport and travel plans beforehand is itself evidence supporting item (v).

If a departure order is unavailable, when can I return to Japan?

Where a departure order cannot be used, the case proceeds through deportation procedures: violation investigation (Article 27 onwards), a written detention order (Article 39) or a supervision measure decision (Article 44-2, paragraph (7)), examination by an immigration inspector (Article 45 onwards), a finding (Article 47, paragraph (3)), an oral hearing (Article 48), an objection to the Minister of Justice (Article 49), and finally either special permission to stay (Article 50) or a written deportation order (Article 51).

The period of denial of landing varies sharply with the route by which you leave. Departure under a departure order carries one year from the date of departure under Article 5, paragraph (1), item (ix)(e) (ホ). However, a person who falls under Article 24-3, item (i)(b) (ロ), that is, who expressed the intention to depart only after the violation investigation began, and who then seeks to come to Japan for short-term stay activities, is denied landing for five years under item (ix)(f) (ヘ). Deportation carries five years under item (ix)(c) (ハ) or ten years under item (ix)(d) (ニ). A person deported for falling under Article 24, item (iv) sub-items オ (o) through ヨ (yo) is denied landing with no fixed period under Article 5, paragraph (1), item (x).

For those with a settled life or family in Japan, the real question is whether any route to remain exists, which means special permission to stay under Article 50. The application is made to the Minister of Justice by a foreign national detained under a written detention order or subject to a supervision measure decision (Article 50, paragraph (2)), and no application can be made once a written deportation order has been issued (Article 50, paragraph (3)). The heightened requirement in the proviso to Article 50, paragraph (1) applies to persons sentenced to life imprisonment or a kōkinkei exceeding one year and similar categories; a case involving only overstaying under Article 24, item (iv)(b) (ロ) is not subject to it, which is a favourable feature of overstay-only cases.

Why acting before you are caught matters

Lined up together, the requirements share a pattern. Items (ii) and (iii) are lost when another incident is added on top of a continuing overstay. Item (iv), once lost, cannot be recovered. Item (i) shifts from the favourable イ to the less favourable ロ at the single moment the violation investigation begins, which can turn a one-year wait for a short-term stay into five years. The requirements quietly diminish as time passes.

Administrative practice points the same way. The Guidelines on Special Permission to Stay (revised in March 2024, in force from 10 June 2024) describe special permission to stay as an exceptional and discretionary measure for a foreign national who is otherwise to be deported, and expressly state that voluntarily appearing at a regional immigration services bureau in order to report unlawful residence is considered a positive factor, while prolonged unlawful residence is assessed as a negative factor. That said, voluntary appearance is not always the best first step. Your family situation, whether you hope to remain or have decided to leave, and whether another incident is involved all change the order of steps, so it is worth confirming which requirements are already in danger before you appear.

About our office

Funado International Law Office is located at Fuse Building Main Wing 3F, 3-4-10 Takada, Toshima-ku, Tokyo. Attorney Daisuke Matsumura focuses on criminal defence for foreign nationals, chiefly clients of Chinese nationality, and on immigration procedures. He 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 on staff, so clients can use an interpreter who works for them rather than only the interpreter designated by the investigating authorities; for other languages, we arrange interpreters as the case requires. Renewal or change of status of residence after the criminal process is handled on a one-stop basis with an affiliated administrative scrivener.

In one past case, a client who had come 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. The marriage and acknowledgement of paternity were incomplete and the authorities initially refused the filings; the office negotiated from a constitutional standpoint, secured both, gathered favourable evidence although almost no official documents from the country of nationality existed, analysed past grant cases, and obtained special permission to stay in a single round of proceedings.

In another, a woman wrongly accused of promoting illegal employment faced deportation. Against the established practice that deportation grounds require neither intent nor negligence, the office 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. Promoting illegal employment falls under Article 24, item (iii)-4 and feeds directly into the item (ii) exclusion.

The first consultation is free of charge, and fees are quoted according to the case. Whether you have not yet been caught or are already under investigation makes a substantial difference to the steps that should be taken, and you are welcome to consult us simply to get your situation organised.

Closing

Being caught does not by itself end the possibility of a departure order. What ends it is the addition of circumstances falling under item (ii), a custodial sentence for one of the offences listed in item (iii), or the prior history described in item (iv). Each tends to accumulate over time, and the speed of the first response translates directly into the range of options available.

This article is a general explanation. For your own case, please consult a lawyer directly. Past case results reflect the individual circumstances of those matters and do not guarantee 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)

Focuses on criminal defence for foreign nationals, chiefly clients of Chinese nationality, and on immigration procedures.

Case results include an acquittal in a Stimulants Control Act case (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 a case regarded as difficult.

Contact

Funado International Law Office

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

WeChat ID: matsumura1119

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