Is It Too Late to Marry After Being Caught for Overstaying in Japan?

You stayed in Japan past the end of your period of stay. During that time you met someone you want to build a life with. Then immigration officers or the police detained you, and your family suddenly began preparing marriage papers. Or perhaps the marriage was registered only after you were placed in detention. We hear this often, and there is almost always a real story behind it. But when the Immigration Services Agency decides your case, the question is not simply whether you are married. The question is when, and how, the substance of that marriage was built. Getting this distinction wrong is why a great deal of genuine effort ends up counting for very little.

If I marry after being caught, is special permission to stay still possible?

Nothing in the law says it is impossible. But completing the paperwork after the fact does not, by itself, lead to special permission to stay (zairyū tokubetsu kyoka, 在留特別許可) under Article 50 of the Immigration Control and Refugee Recognition Act (the Immigration Control Act). Article 50, paragraph (5) lists what must be weighed: the reasons for wishing to remain, family relationships, conduct, the circumstances of entry into Japan, the length of stay and the legal status held during it, the facts that gave rise to the ground for deportation, and the need for humanitarian consideration. On top of that, domestic and international circumstances and the effect on illegal residents in Japan are also considered. Marriage is one element within "family relationships." It is not a switch that decides the outcome on its own.

The Guidelines on Special Permission to Stay, revised in March 2024 and in force from 10 June 2024, describe this permission as an exceptional and discretionary measure granted to a foreign national who would otherwise be removed from Japan. Because it is exceptional, what is examined is not whether the forms are complete, but whether there is enough substance to justify not requiring departure.

What exactly does immigration look at in a marriage?

Not the fact of registration, but the substance of the marriage. In practice this means: whether the couple live together, since when, whether they share a household economy, whether daily contact has continued without long unexplained gaps, whether relatives, employers and neighbours know about the relationship, and where there is a child, whether acknowledgment of paternity and actual care are taking place.

Reading the published case collections not as individual stories but as types, a pattern appears. Where a marriage was registered but the reality of cohabitation or the continuity of the relationship was regarded as doubtful, the assessment tended to be negative; where the couple had shared their lives over a long period, the relationship was known to those around them, and a child was actually being raised, family relationships were more likely to be weighed positively. What separates the two is not the thickness of the file, but the content of daily life.

How is a marriage registered after detention begins assessed?

The timing of the marriage is not a legal disqualification. But where the marriage was concluded after deportation procedures had already begun, or after the person was taken into custody, the moment of decision usually arrives before much substance has accumulated. That is precisely the situation in which the marriage is most easily read as a form assembled to match the progress of the proceedings, and the assessment tends to be strict.

It is also difficult to ignore that Article 50, paragraph (5) expressly requires consideration of the effect on illegal residents in Japan. A practice in which registering a marriage after proceedings begin secures permission to stay is unlikely to develop. None of this means that a marriage concluded after detention is meaningless. The dividing line is whether you can show, concretely and in chronological order, that the relationship already existed and continued before the registration.

Does a period of living apart count against us?

Not automatically, but it does require a reasonable explanation. Distance from a workplace, housing conditions, caring for a family member, childbirth: there are many genuine reasons why couples live apart for a time. What matters is whether you can show that the relationship actually continued during that period. Records of contact, visits, financial support and photographs are examined to see whether they are spread across the whole period or clustered into a short window. Material concentrated in one brief span can itself raise doubts about whether the relationship was continuous.

What evidence shows that a marriage is real?

The following are typical. In each case what counts is not volume, but consistency across a timeline.

• Evidence of living together (residence records, the lease, utility accounts and delivery addresses)
• Evidence of a shared household economy (remittances, records of who bore living costs, an explanation of the household finances)
• Evidence of continuing contact (long-running message records, photographs spread over time)
• Evidence that others knew of the relationship (specific written statements from relatives, employers or neighbours)
• Where there is a child (documents on acknowledgment and birth, and material showing actual care and upbringing)

A written statement that merely says "they get along well" carries little weight. It should say when, where, who, and what that person actually saw.

When can an application for special permission to stay be filed?

Article 50, paragraph (2) provides that the application is made to the Minister of Justice, under procedures prescribed by Ministry of Justice ordinance, by a foreign national who has been detained under a written detention order or who has received a decision on supervision measures (kanri sochi, 監理措置). In other words, the right to file as an application arises only after detention under a written detention order or a supervision measure decision. Before that stage, what a lawyer does is not filing an application but seeking the exercise of the authorities' own discretion.

At the other end, Article 50, paragraph (3) provides that no application may be made once a written deportation order has been issued. As to timing, paragraph (4) provides that special permission may be granted only after the person has accepted the immigration inspector's finding (Article 47, paragraph (3)) or the special inquiry officer's determination (Article 48, paragraph (8)), or after the Minister of Justice has dismissed an objection as unfounded. The time available to build a file is therefore not open-ended; it is cut off by the progress of the procedure. Where permission is not granted, the person must promptly be notified in writing with reasons (Article 50, paragraph (10)).

How does the criminal case affect a married applicant?

Overstaying is not only an administrative problem. It is a crime. Article 70, paragraph (1), item (v) covers a person who remains in Japan beyond the period of stay without obtaining an extension or a change, and the statutory penalty is a kōkinkei (custodial sentence) of up to three years or a fine of up to three million yen, or both.

The severity of the criminal outcome and the ability to remain in Japan are separate questions. Even a decision not to prosecute, or a suspended sentence, leaves the ground for deportation under Article 24, item (iv)(b) intact, and deportation procedures continue. "The sentence was suspended, so it is fine" is simply wrong.

Conversely, a heavier sentence raises the bar for special permission. The proviso to Article 50, paragraph (1) provides that for a person sentenced to a kōkinkei for life or for more than one year (excluding a person whose sentence was wholly suspended, and a person given a partially suspended sentence where the unsuspended part is one year or less), and for certain other categories, permission may be granted only where there are special circumstances such that refusing to permit the stay would be found to lack humanitarian consideration. A case involving only overstaying under Article 24, item (iv)(b) does not fall within that heightened requirement, which is a significant point in the person's favour. But a custodial sentence of more than one year actually served brings the heightened requirement into play. For that reason, the work of reducing the criminal exposure and the work of obtaining special permission must be designed as one strategy from the very first day. Evidence about the reality of a marriage serves both.

Why acting before you are caught changes the outcome

Anyone thinking about marriage should understand this point. Reporting yourself and being caught lead to concretely different legal results.

Article 24-3 sets out who may receive a departure order. Item (i)(a) covers a person who, before a violation investigation under Article 27 has begun, appears at a regional immigration services bureau on their own initiative with the intention of leaving Japan promptly. Where a person leaves under a departure order by that route, the period of denial of landing is one year from the date of departure (Article 5, paragraph (1), item (ix)(e)). By contrast, where the intention to leave is expressed only after the violation investigation has begun but before the notice under Article 47, paragraph (3) (Article 24-3, item (i)(b)), a person who then wishes to come to Japan for short-term stay activities faces a period of denial of landing of five years from the date of departure (Article 5, paragraph (1), item (ix)(f)).

Further, if being caught means the requirements in items (ii) to (iv) of Article 24-3 are not met (not falling under certain grounds for deportation; not having been sentenced to a kōkinkei for certain offences; and having no previous deportation or departure order), the departure order route is unavailable altogether. The case then proceeds as deportation, with a period of denial of landing of five years from the date of departure (Article 5, paragraph (1), item (ix)(c)), or ten years where there is a previous deportation or departure order (item (ix)(d)).

The Guidelines also state expressly that appearing voluntarily at a regional immigration services bureau in order to report one's own illegal residence is treated as a positive factor, while prolonged illegal residence is treated as a negative one. Waiting does not build the substance of a marriage, and it does not preserve the value of voluntary reporting. What waiting reliably accumulates is the negative weight of a longer period of unlawful stay.

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, with a client base centred on Chinese nationals. Cases are handled by Daisuke Matsumura, attorney at law, a member of Daiichi Tokyo Bar Association (registration number 59077, admitted 2019).

Three features define how we work. First, Mr. 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 attorneys. Second, a dedicated Chinese interpreter experienced in cases involving foreign nationals is available in-house; for other languages, an interpreter is arranged according to the needs of the case. This means a client can rely on an interpreter working for them, separate from the interpreter appointed by the investigating authorities. Third, residence status renewals and changes after the criminal case ends are handled on a one-stop basis together with an affiliated administrative scrivener.

In cases where marriage and residence status are intertwined, our results include the following.

A client who had entered Japan as a tourist had a child with a Japanese woman, lost his residence status, and was arrested and prosecuted for illegal residence. Because the marriage and the acknowledgment of paternity had not been completed, the authorities initially declined 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 questioning and witness examination with the criminal trial in mind. Even though almost no official documents from the country of nationality were available, favourable evidence was assembled and past grant decisions of the immigration authorities were analysed, and special permission to stay was obtained in a single round of proceedings.

In another matter, 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 litigation testing the reach of the principle of individual culpability and pursued it 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. Where the person concerned is in custody, we also accept consultations from family members.

In closing

Marrying after being caught does not close the door. But the substance of a marriage cannot be manufactured quickly after the fact, and the moment of decision is fixed by the progress of the procedure. That is exactly why it is worth obtaining a clear legal view while you are still thinking about marriage, or still hesitating.

This article is a general explanation. For your own case, please consult a lawyer directly. Past results reflect the particular circumstances of each case 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 and immigration procedures, with a client base centred on Chinese nationals.

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 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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