Overstaying in Japan With a Prior Deportation or Departure Order: What Changes

You are living in Japan after your period of stay expired, and this is not the first time you have been in trouble with immigration. Perhaps you were deported from Japan once before, or you left the country under a departure order. Many people in this situation ask the same question: since it has already happened once, does anything I do now really matter. It does. A prior deportation or a prior departure order changes your situation in three specific ways: whether you can use the departure order system at all, how many years you must wait before you can enter Japan again, and how your case is weighed when special permission to stay is considered.

If I was deported before, can I still use the departure order system

No. Article 24-3 of the Immigration Control and Refugee Recognition Act (Immigration Control Act) sets out five requirements for a departure order (shukkoku meirei, 出国命令), and item (iv) is that the person has never previously been deported from Japan and has never previously departed under a departure order issued under Article 55-85, paragraph (1). The five requirements are cumulative, so a single prior deportation closes this route even if everything else about your case would have qualified.

• Item (i)(a): before a violation investigation under Article 27 has begun, the person voluntarily appeared at an immigration office intending to depart promptly; or (b): after the investigation has begun but before receiving the notice under Article 47, paragraph (3), the person stated to an immigration inspector or immigration control officer the intention to depart promptly.
• Item (ii): the person does not fall under Article 24, items (iii) through (iii)-5, item (iv)(c) through (iv)(y), item (viii) or item (ix).
• Item (iii): after entering Japan, the person has not been sentenced to kōkinkei (custodial sentence) for breaking into a residence, counterfeiting of currency, documents or securities, gambling, homicide, injury, unlawful capture and confinement, kidnapping, theft and robbery, fraud and extortion, handling stolen goods, or the other offences listed in that item.
• Item (iv): the person has never previously been deported from Japan and has never previously departed under a departure order under Article 55-85, paragraph (1).
• Item (v): the person is expected to depart from Japan promptly.

The departure order system also applies only to foreign nationals who fall under Article 24, item (ii)-4, item (iv)(b), or items (vi) through (vii).

What if I left under a departure order rather than being deported

The result is the same. Article 24-3, item (iv) lists deportation and departure under a departure order side by side, and either one is enough to disqualify you. People who were allowed to leave quietly last time, without being detained, often assume the same path will be available again, but the departure order was designed as a one-time measure. What has to be avoided is planning around a quick voluntary departure and then finding yourself inside full deportation proceedings, facing detention and a much longer bar on re-entry.

How many years is the entry bar the second time around

If you are deported and you already had a prior deportation or a prior departure under a departure order, Article 5, paragraph (1), item (ix)(d) denies you landing in Japan for 10 years from the date of departure. For a first deportation the period under item (ix)(c) is 5 years, so the bar doubles.

• Item (ix)(e): a person who departed under a departure order — 1 year from the date of departure.
• Item (ix)(f): a person falling under Article 24-3, item (i)(b) (someone who expressed the intention to depart only after the violation investigation had begun) who departed under a departure order and then seeks to engage in activities as a Temporary Visitor — 5 years from the date of departure.
• Item (ix)(b): a person subject to deportation who received a decision under Article 52, paragraph (5) and departed voluntarily within the time limit (other than for temporary visitor purposes) — 1 year.
• Item (ix)(c): a person deported with no prior deportation or departure order history — 5 years.
• Item (ix)(d): a person deported who already had a prior deportation or departure order history — 10 years.
• Article 5, paragraph (1), item (x): a person deported for falling under Article 24, item (iv)(e) through (iv)(y) — no fixed period.

The difference between five and ten years decides whether you can return while your child is still in school, or while your parents still need you. Separately, Article 5, paragraph (1), item (v), concerning a record of punishment under narcotics-related legislation, carries no fixed period, so the bar is indefinite.

Does a prior deportation mean special permission to stay is impossible

The statute does not say that. Article 50, paragraph (1) provides that even where a person falls within the category of persons subject to deportation, the Minister of Justice may grant special permission to stay (zairyū tokubetsu kyoka, 在留特別許可), on the application of the foreign national or on the Minister's own authority, when one of the listed items applies. Item (v), covering other circumstances the Minister finds to warrant special permission, is the provision most often relied on in overstay cases, and nothing in the text excludes a person with a prior deportation from it.

That said, the assessment is harder, and we say so candidly. Article 50, paragraph (5) requires consideration of the reasons for wishing to stay, family relationships, conduct, the circumstances of entry into Japan, the length of stay and the person's legal status during that time, the facts giving rise to deportation, and the need for humanitarian consideration, along with domestic and international circumstances and the effect on illegal residents in Japan, among other matters. A prior deportation bears directly on the assessment of conduct, of the circumstances of entry, and of legal status during the stay. The Guidelines on Special Permission to Stay, revised in March 2024 and in force from 10 June 2024, describe special permission as an exceptional measure granted as a matter of grace to a foreign national who ought otherwise to be deported.

There is, however, a point in your favour. The proviso to Article 50, paragraph (1) imposes a stricter test on persons sentenced to kōkinkei (custodial sentence) for an indefinite term or for a term exceeding one year, excluding those whose sentence was suspended in full and those given a partially suspended sentence where the unsuspended portion is one year or less, and on certain other categories: permission may then be granted only where refusing it would be found to lack humanitarian consideration in light of special circumstances. A case involving overstay alone, under Article 24, item (iv)(b), does not fall under that proviso. Even with a prior deportation, so long as the present case is limited to overstaying, this heightened requirement does not apply.

Will my criminal punishment be heavier because of the earlier case

The statutory penalty itself does not change. Overstaying is an offence under Article 70, paragraph (1), item (v), punishable under the main clause of that paragraph by kōkinkei (custodial sentence) of up to three years, a fine of up to three million yen, or both. What varies is not the statutory penalty but the prosecutor's choice of disposition and the sentence within that range. In practice, the length of the overstay, as the period over which the unlawful situation was allowed to continue, is a central factor: cases where the period is short, where the person came forward voluntarily, and where the basis of daily life and family relationships is clear tend toward lighter dispositions, while cases running for years, involving unlawful employment or further violations such as forged documents, tend toward heavier ones. A person who was deported once and has returned to the same unlawful situation will be asked to explain that history. Outcomes vary considerably from case to case, and no uniform prediction is possible.

The essential point is that the severity of the criminal punishment and the question of whether you can remain in Japan are separate matters. Even if the criminal case ends in a suspended sentence or a decision not to prosecute, deportation proceedings continue, because Article 24, item (iv)(b) already applies. The belief that a suspended sentence makes everything safe is wrong. Conversely, an actual custodial sentence exceeding one year triggers the proviso to Article 50, paragraph (1). For that reason, mitigating the criminal case and seeking special permission to stay must be designed together from the first step.

Why acting before enforcement action still matters

If you have a prior deportation or departure order, you have already lost the departure order option, which is precisely why how you act within the remaining procedure matters more. Coming forward voluntarily is not only a route to a departure order.

First, it is weighed in the decision on special permission to stay. The Guidelines expressly state that the fact that the foreign national voluntarily appeared at a regional immigration office in order to report their illegal residence is treated as a positive factor, while a prolonged period of illegal residence is treated as a negative factor. When you already carry the negative factor of a prior deportation, securing that positive factor is worth a great deal.

Second, what you can do depends on the stage you are at. Deportation proceedings run in this order: violation investigation (Article 27 onward), a written detention order (Article 39) or a decision on supervision measures (Article 44-2, paragraph (7)), examination by an immigration inspector (Article 45 onward), a finding (Article 47, paragraph (3)), a request for a hearing (Article 48), a determination by a special inquiry officer (Article 48, paragraph (8)), an objection to the Minister of Justice (Article 49), and a decision on that objection. Under Article 50, paragraph (2), the right to apply for special permission belongs to a foreign national detained under a written detention order or subject to a decision on supervision measures, and under Article 50, paragraph (3), no application may be made once a written deportation order has been issued. Time does not add options; it removes them.

Third, building the factual record takes time. Marriage and acknowledgment of paternity, official documents from your home country, evidence of employment and tax payment, and materials showing the reality of your family life cannot be assembled overnight. Gathering documents in a panic after enforcement action is very different from appearing voluntarily with the record already prepared.

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. Daisuke Matsumura is a member of the Dai-ichi Tokyo Bar Association (registration number 59077, admitted 2019). He handles every stage personally, from the first visit at the detention facility through to the close of trial, and we do not delegate those stages to clerical staff or junior lawyers. A dedicated Chinese-language interpreter experienced in cases involving foreign nationals is based at the office, so clients can rely on an interpreter working for them rather than only on the interpreter designated by the investigating authorities; for other languages we arrange an interpreter according to the requirements of the case. After the criminal process ends, renewals and changes of status of residence are handled on a one-stop basis with an affiliated administrative scrivener.

• Special permission to stay obtained in a single round of proceedings in a difficult 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 illegal residence. The marriage and acknowledgment of paternity were incomplete and the authorities initially refused the filings. Mr. Matsumura negotiated from a constitutional standpoint, the marriage and acknowledgment were completed, and the examination of the defendant and of witnesses was conducted with the criminal trial in view. Although almost no official documents were obtainable from the client's country of nationality, favourable evidence was assembled and, by analysing past grants of permission, special permission to stay was obtained in one round.
• Relief for a woman facing deportation over facilitation of unlawful employment. The client was wrongly accused of facilitating unlawful 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 culpability and pursued it to the appellate level. Special permission to stay was subsequently granted by the immigration authorities.

The first consultation is free of charge, and fees are quoted according to the case. Where there is a prior deportation or departure order, fewer procedural options remain, which makes the design of the first steps all the more important. The place to start is to confirm together which stage you are at.

Closing

A prior deportation or departure order is a serious matter: it closes off the departure order system under Article 24-3, item (iv), and it can extend the bar on landing to ten years under Article 5, paragraph (1), item (ix)(d). But the statute does not close off special permission to stay, and where the case involves overstaying alone the heightened requirement in the proviso to Article 50, paragraph (1) does not apply. What you submit, and when, can still affect the outcome.

This article is a general explanation. For your own situation, please consult a lawyer directly. The past matters described here turned on their individual circumstances and do not guarantee a similar result.

Author

Daisuke Matsumura, Attorney at Law

Dai-ichi 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, 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 special permission to stay obtained in a case regarded as difficult.

Contact

Funado International Law Office

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

WeChat ID: matsumura1119

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