Will I Be Detained If I Turn Myself In for Overstaying in Japan? Detention Orders, Supervision Measures and Provisional Release

One of the most common questions we hear from people who are living in Japan after their period of stay has expired is this: if I go to the Immigration Services Agency and report myself, will I be detained that same day? The fear of being separated from your family, of losing your home and your job, can be paralysing, and while you hesitate, time keeps passing. This article follows the text of the Immigration Control and Refugee Recognition Act (Immigration Control Act) to explain when a person is physically detained, and when a person can continue living in the community while the procedure runs its course.

If I report myself to immigration, will I be detained on the spot

Reporting yourself does not automatically mean you will be detained on the spot. Once deportation proceedings begin, custody is handled in one of two ways: detention under a written detention order (shūyō reisho) issued pursuant to Article 39 of the Immigration Control Act, or a supervision measure decision (kanri sochi kettei) under Article 44-2, paragraph (7), which allows the procedure to continue while you live in the community. Separately, the departure order procedure under Article 24-3, which is premised on leaving Japan, does not involve detention at all. Which route applies depends on the facts of your case and your circumstances, so no one can promise in advance that you will not be detained.

What is a detention order under Article 39

Remaining in Japan after your period of stay has expired falls under Article 24, item (iv)(b) of the Immigration Control Act as a ground for deportation, and it is also the criminal offence of illegal residence under Article 70, paragraph (1), item (v), punishable by kōkinkei (custodial sentence) of up to three years, a fine of up to three million yen, or both. Deportation proceedings begin with a violation investigation by an immigration control officer (Article 27 and following), and proceed through examination (Article 45 and following), a finding (Article 47, paragraph (3)), a request for a hearing (Article 48), a determination (Article 48, paragraph (8)), an objection to the Minister of Justice (Article 49) and the Minister's decision. A written detention order is issued by a supervising immigration inspector where there is reasonable cause to suspect that the person is subject to deportation, and an immigration control officer takes the person into custody on that basis. Once detained, the rest of the procedure takes place while the person is held in an immigration facility.

What is the supervision measure system

A supervision measure allows a person to go through deportation proceedings while living in the community, under the supervision of a designated supervisor, instead of being detained. Where a supervision measure decision is made under Article 44-2, paragraph (7) of the Immigration Control Act as an alternative to detention under a detention order, the examination, the hearing and the objection all proceed without the person being held in custody. Whether you can keep your job, your medical treatment and your children's schooling has a direct effect on your ability to prepare the arguments and evidence that follow. Whether a supervision measure decision is made depends on individual circumstances, including the risk of flight or destruction of evidence, your living situation, and whether there is someone who can act as your supervisor.

If I receive a supervision measure decision, can I apply for special permission to stay

Yes. This is the provision that links the question of custody to the question of whether you may remain in Japan. Article 50, paragraph (2) of the Immigration Control Act provides that an application for special permission to stay (zairyū tokubetsu kyoka) is made by "a foreign national detained under a written detention order or a foreign national who has received a supervision measure decision", following the procedure prescribed by Ministry of Justice ordinance, to the Minister of Justice. In other words, the right to apply belongs not only to those in detention but equally to those under a supervision measure. Conversely, before either of those stages is reached, no statutory right to apply has yet arisen, and the work at that point consists of urging the authorities to exercise their own authority: Article 50, paragraph (1) speaks of permission granted "upon application by the foreign national or ex officio". So the question of detention is not only a question of liberty; it is also a question of when your right to apply comes into existence.

Note also that a case involving only illegal residence under Article 24, item (iv)(b) does not fall under the more demanding proviso to Article 50, paragraph (1), which applies to those sentenced to life imprisonment or to kōkinkei exceeding one year and similar cases. That is a point in your favour.

If I am detained, does that mean I can never go home

There is a procedure known as provisional release, which temporarily lifts the physical custody of a person who has been detained. A request can be made, and matters such as health, family circumstances, whether there is a place to live and a person willing to take responsibility for you, and whether there is a risk of flight are taken into account. Whether it is granted depends entirely on the individual case, and the outcome cannot be predicted in advance. What matters is that even while detained, the right to apply for special permission to stay under Article 50, paragraph (2) is not lost. Being detained is not the end of the matter.

If I leave Japan under a departure order, will I be detained

The departure order procedure does not presuppose detention. To qualify, all five requirements of Article 24-3 of the Immigration Control Act must be satisfied. Item (i) requires that the person either (a) appeared voluntarily at an immigration office before the violation investigation began, with the intention of leaving Japan promptly, or (b) after the investigation began but before receiving the notice under Article 47, paragraph (3), stated to an immigration inspector or immigration control officer an intention to leave Japan promptly. Item (ii) requires that the person does not fall under Article 24, items (iii) through (iii)-5, items (iv)(c) through (iv)(yo), item (viii) or item (ix). Item (iii) requires that the person has not been sentenced to kōkinkei for certain offences, including breaking into a residence, counterfeiting, gambling, homicide, injury, unlawful capture and confinement, kidnapping, theft and robbery, and fraud and extortion. Item (iv) requires that the person has never previously been deported or departed under a departure order. Item (v) requires that the person is expected to leave Japan promptly. When a departure order is issued, the supervising immigration inspector sets a departure deadline not exceeding fifteen days (Article 55-85, paragraph (1)) and may attach conditions restricting residence and area of movement (paragraph (3)). This is, however, a system premised on leaving Japan, and anyone who wishes to remain should weigh it carefully against seeking special permission to stay within the deportation procedure.

Can I still seek special permission after a deportation order is issued

No. Article 50, paragraph (3) of the Immigration Control Act provides that no application for special permission to stay may be made after a written deportation order has been issued. Furthermore, under Article 50, paragraph (4), special permission may be granted only after the person has accepted the finding under Article 47, paragraph (3) or the determination under Article 48, paragraph (8), or after the Minister of Justice has decided that the objection is without grounds. There is therefore a clear cut-off point: the issuance of the deportation order. After that, the matter moves into the field of judicial remedies, namely an action for revocation and an application for a stay of execution. The worst outcome is to cross that line while frozen by worry about detention.

Why acting before you are caught matters

Timing is decisive for the custody question as well. A person who appears voluntarily before the violation investigation begins falls under Article 24-3, item (i)(a), and if they leave under a departure order the period of denial of landing is one year from the date of departure (Article 5, paragraph (1), item (ix)(e)). By contrast, a person who states an intention to leave only after the investigation has begun falls under item (i)(b), and if they later seek to enter for short-term stay activities the period becomes five years from the date of departure (Article 5, paragraph (1), item (ix)(f)). Further, if being caught means the requirements of items (ii), (iii) or (iv) of Article 24-3 are no longer met, the departure order route is unavailable altogether, deportation follows, and the period of denial of landing is five years from the date of deportation (Article 5, paragraph (1), item (ix)(c)), or ten years where there is a previous deportation or departure order (item (ix)(d)). In addition, the Guidelines on Special Permission to Stay, revised in March 2024 and in force from 10 June 2024, expressly state that appearing voluntarily at a regional immigration office in order to report one's own illegal residence is treated as a positive factor. Prolonged illegal residence, on the other hand, is treated as a negative factor. Coming forward yourself, with your housing, work, family relationships and a possible supervisor set out clearly, is preparation that waiting can never provide, both for the supervision measure decision and for the case you will make for special permission to stay.

About our office

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

In cases where liberty is at stake, the speed of the first steps often determines the outcome. Mr Matsumura personally handles every stage, from the first visit at the detention facility through to the conclusion of trial; the work is not delegated to clerks or junior lawyers. For Chinese, a dedicated interpreter experienced in cases involving foreign nationals is on staff, so that you can use an interpreter who acts for you rather than the interpreter designated by the investigating authorities. For other languages, an interpreter is arranged according to the needs of the case. Renewals and changes of status of residence after the criminal procedure has ended are handled on a one-stop basis together with an affiliated administrative scrivener.

Two examples of past work. In the first, a client who had come to Japan as a tourist had a child with a Japanese woman, lost his status of residence and was prosecuted for illegal residence. The marriage and acknowledgment of paternity were incomplete and the filings were initially refused; after negotiation from a constitutional standpoint both were completed, favourable evidence was gathered although the country of nationality issues almost no official documents, and by analysing past grants special permission to stay was obtained in a single round of proceedings.

In the second, a woman wrongly accused of promoting illegal work 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 up 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

Whether or not you will be detained is a real and pressing worry. But whether custody takes the form of a detention order (Article 39) or a supervision measure decision (Article 44-2, paragraph (7)), when the right to apply for special permission arises (Article 50, paragraph (2)), and the cut-off marked by the issuance of a deportation order (Article 50, paragraph (3)) are all determined as the procedure moves forward. The more time passes, the narrower the available routes become. This article is a general explanation; for your own situation, please consult a lawyer directly. Past results reflect the individual 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 (3F Fuse Building Main Wing, 3-4-10 Takada, Toshima-ku, Tokyo)

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

Past results include an acquittal in a case of violation of the Stimulants Control Act (possession for the purpose of profit), a non-prosecution disposition in a special fraud case, and grants 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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