Arrested for Overstaying in Japan: Is It Already Too Late? What You Can Still Do After an Arrest

You stayed in Japan after your period of stay expired, and one day the police arrested you. Or you were stopped for something unrelated, an officer checked your residence card, and you were taken into custody on the spot. For the person arrested, and for the family waiting at home in Japan, this is the kind of moment that empties your mind. You are held in a detention cell, questioned in Japanese, and it is natural to start thinking, "Deportation is the only outcome now," or "I will never see my family in Japan again." Let us begin with the conclusion. An arrest does not mean that every option has disappeared. The range of choices does narrow, but even after an arrest there are several routes that the law still leaves open. This article walks through those routes, article by article.

If I have already been arrested, is it too late to do anything?

It is not too late. But the options genuinely shrink as time passes, so speed matters.

Remaining in Japan beyond your authorized period of stay is the offense of illegal residence under Article 70, paragraph (1), item (v) of the Immigration Control and Refugee Recognition Act (Immigration Control Act, 出入国管理及び難民認定法). The statutory penalty is a kōkinkei (custodial sentence) of up to three years, or a fine of up to 3,000,000 yen, or both. In other words, overstaying is not merely an administrative problem. It is a crime carrying criminal punishment. At the same time, under Article 24, item (iv)(b), illegal residence is a ground for deportation. A person who has been arrested therefore faces two parallel tracks at once: the criminal process and the immigration process.

The two tracks have different purposes and are decided by different authorities. Yet the number of decisions that truly have to be made right after an arrest is small. First: are you going to build your case around leaving Japan promptly, or around asking to remain in Japan? Second: whichever direction you choose, you must work from day one to keep the criminal disposition as light as possible. Letting days pass without settling those two points is the single most costly thing you can do.

Can I still receive a departure order after being arrested?

Yes, if the requirements are met. An arrest does not automatically close the door to a departure order (出国命令).

Article 24-3 of the Immigration Control Act defines who may receive a departure order. Item (i) is split in two. Sub-item (b) covers "a person who, after the commencement of the violation investigation and before receiving the notice under Article 47, paragraph (3), has expressed to an immigration inspector or immigration control officer the intention to depart from Japan promptly." So even if the immigration violation investigation has already begun, there is still room to satisfy item (i) as long as the notice discussed below has not yet been given.

However, a departure order requires that all five requirements of Article 24-3 be satisfied.

• Item (i): the person either appeared voluntarily at an immigration office before the violation investigation began (sub-item (a)), or expressed the intention to depart promptly after it began but before the Article 47, paragraph (3) notice (sub-item (b)).
• 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). A conviction under drug-related legislation, which falls under Article 24, item (iv)(h), is blocked here.
• Item (iii): after entering Japan, the person has not been sentenced to a kōkinkei (custodial sentence) for offenses under the Penal Code relating to breaking into a residence, counterfeiting of currency, documents, securities or electromagnetic records for payment cards, gambling, homicide, injury, unlawful capture and confinement, kidnapping and abduction, theft and robbery, fraud and extortion, or stolen property, nor for certain offenses under the Act on Punishment of Physical Violence and Others, the Act for Prevention of Larceny, the Act on Prohibition of Possession of Special Picking Tools, the Act on Punishment of Acts Inflicting Death or Injury on Others by Driving a Motor Vehicle, or the Act on Prevention of Disposal of Stolen Specified Metal Products.
• Item (iv): the person has never previously been deported from Japan, nor departed under a departure order issued pursuant to Article 55-85, paragraph (1).
• Item (v): the person is expected to depart from Japan promptly with certainty.

Note carefully that the offense of illegal residence itself is not on the list in item (iii). Whether the arrest concerns only overstaying, or also covers theft, fraud or another offense, therefore changes the outcome substantially. If a departure order is issued, the supervising immigration inspector orders prompt departure under Article 55-85, paragraph (1) and sets a departure deadline within a period not exceeding fifteen days. Under paragraph (3) of the same article, conditions such as restrictions on residence and on the scope of activities may be attached. Unlike deportation proceedings, the departure order procedure is not premised on detention.

What does "before receiving the notice under Article 47, paragraph (3)" actually mean in time?

It means the period up to the moment an immigration inspector, after conducting the violation examination, finds that you fall within the category of persons subject to deportation and gives you notice of that finding.

Deportation proceedings broadly follow this sequence: a violation investigation by an immigration control officer (Article 27 and following); detention under a written detention order (Article 39) or a supervision measure decision (Article 44-2, paragraph (7)); the violation examination by an immigration inspector (Article 45 and following); the finding and its notice (Article 47, paragraph (3)); a request for a hearing if you object (Article 48); the special inquiry officer's determination (Article 48, paragraph (8)); a filing of an objection with the Minister of Justice if you still object (Article 49); and then, after the Minister's decision, either special permission to stay (Article 50) or issuance of a written deportation order (Article 51).

At the stage of a police arrest, the immigration process has often not yet begun in earnest. In practice the criminal process usually runs first, and the immigration process starts moving after it ends. So the period right after an arrest, which feels like the moment of least time, is in fact valuable time for setting a strategy. If nothing is decided during that period, the finding notice may arrive before you realize it, and the entrance to Article 24-3, item (i) closes on its own.

If I leave under a departure order after an arrest, how many years before I can return to Japan?

It may be one year or five years, depending on the status of residence you intend to use when you return. Compared with deportation, the difference is clear.

• A person who departs under a departure order is, as a rule, denied landing for one year from the date of departure under Article 5, paragraph (1), item (ix)(e).
• However, where a person falling under Article 24-3, item (i)(b) (that is, someone who expressed the intention to depart only after the violation investigation had begun) departs under a departure order and then seeks to engage in activities as a temporary visitor, the period is five years from the date of departure under Article 5, paragraph (1), item (ix)(f).
• A person who has been deported and who had no prior deportation or departure order history is denied landing for five years from the date of deportation under Article 5, paragraph (1), item (ix)(c).
• A person who has been deported and who already had a prior deportation or departure order history is denied landing for ten years from the date of deportation under Article 5, paragraph (1), item (ix)(d).
• A person deported as falling under Article 24, item (iv)(e) through (iv)(y) is subject to Article 5, paragraph (1), item (x), for which no fixed period is provided. Article 5, paragraph (1), item (v), which concerns a record of punishment under drug-related legislation, likewise imposes denial of landing with no fixed period.

In practical terms, someone who expresses the intention to depart after an arrest and receives a departure order faces five years if they later seek to come to Japan as a temporary visitor for tourism or similar purposes, but the one-year benchmark under item (ix)(e) if they seek to come under another status of residence, such as spouse or child of a Japanese national. By contrast, deportation means five or ten years regardless of the purpose of the future visit. Even after an arrest, acting with this difference in mind can change how the years ahead are planned.

If I am not prosecuted, or if my sentence is suspended, can I stay in Japan?

The severity of the criminal disposition and the question of whether you can remain in Japan are separate issues. The belief that "a suspended sentence means everything is fine" is mistaken.

Illegal residence is itself a ground for deportation under Article 24, item (iv)(b). Whether the criminal outcome is a non-prosecution disposition, a fine, or a suspended sentence, the fact that this ground applies does not change. Article 24, item (iv)(i) treats "a person who has been sentenced to a kōkinkei (custodial sentence) for life or for more than one year" as a ground for deportation, while excluding a person who has received a suspension of the whole sentence, and a person under a partial suspension whose unsuspended portion is one year or less. But what is excluded is only the application of item (iv)(i). Item (iv)(b) applied from the start.

Even so, the criminal disposition is decisive, because it feeds directly into the framework for special permission to stay. The proviso to Article 50, paragraph (1) provides that where the person has been sentenced to a kōkinkei for life or for more than one year (excluding a person who received a suspension of the whole sentence, and a person under a partial suspension whose unsuspended portion is one year or less), or falls under Article 24, item (iii)-2, item (iii)-3, item (iv)(c) or items (iv)(e) through (iv)(y), permission may be granted "only where the Minister of Justice finds special circumstances such that refusing permission to stay in Japan would be lacking in humanitarian consideration." A case involving illegal residence alone, under Article 24, item (iv)(b), is not subject to that heightened requirement. That is a favorable feature of an overstay-only case. But once an unsuspended sentence exceeds one year, the heightened requirement applies.

Criminal defense work aimed at a non-prosecution disposition, a fine by summary order, or a suspended sentence is therefore also work that protects the preconditions for special permission to stay. That is precisely why the criminal case and the immigration case cannot be handled separately and must be designed as one from the outset. The likely criminal outcome varies widely from case to case, depending on how long the overstay lasted, whether there was unauthorized work, whether other violations such as forged documents are involved, whether the person came forward voluntarily, and how clearly established their livelihood and family relationships are.

Can I still apply for special permission to stay after an arrest?

Yes. But the statute limits when an application can be filed, and there is a hard deadline.

Article 50, paragraph (2) provides that an application for special permission to stay is made to the Minister of Justice, in accordance with procedures prescribed by Ministry of Justice order, by a foreign national who has been detained under a written detention order or who has received a supervision measure decision. The right to apply therefore arises only once detention under a written detention order or a supervision measure decision has occurred. Before that point, the work consists of submitting materials and asking the authorities to exercise their own authority.

And under Article 50, paragraph (3), no application may be made after a written deportation order has been issued. That is the practical deadline. After issuance, relief shifts to the judicial arena, through an action to rescind the disposition and an application for a stay of execution, and both the burden and the difficulty rise sharply. Article 50, paragraph (4) further provides that special permission to stay 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.

The matters to be considered are set out in Article 50, paragraph (5): the reasons for wishing to stay, family relationships, conduct, the circumstances of entry into Japan, the length of stay in Japan and the legal status held during that time, the facts constituting the ground for deportation, and the need for humanitarian consideration, together with domestic and international circumstances, the effect on illegal residents in Japan, and other matters. Most overstay cases are examined under Article 50, paragraph (1), item (v), "where the Minister of Justice finds grounds for granting special permission to stay." Where permission is refused, Article 50, paragraph (10) requires that the person be promptly notified in writing with reasons stated.

Immediately after an arrest, the person is in custody and cannot gather documents. That is exactly why counsel and family must move at this stage, assembling documents showing marriage and parent-child relationships, evidence of the reality of daily life in Japan, and materials relating to conduct.

What it means to act on your own before being caught

For someone already arrested this may sound like a closed chapter, but it is still worth understanding the difference.

A person who appears voluntarily at an immigration office with the intention of departing promptly, before the violation investigation begins, falls under Article 24-3, item (i)(a). In that case, if they depart under a departure order, the period of denial of landing is one year under Article 5, paragraph (1), item (ix)(e). By contrast, a person who expresses the intention to depart only after the violation investigation has begun falls under sub-item (b), and if they later seek to come to Japan as a temporary visitor, the period is five years under item (ix)(f). Further still, if being caught means the requirements of Article 24-3, items (ii), (iii) or (iv) can no longer be met, the departure order route is unavailable altogether, and deportation brings five years under item (ix)(c) or ten years under item (ix)(d).

The same holds for special permission to stay. The Guidelines on Special Permission to Stay, revised in March 2024 (Reiwa 6) and in force from 10 June 2024, position special permission to stay as "an exceptional and benevolent measure taken with respect to a foreign national who should be deported from Japan," and expressly state that the fact that "the foreign national appeared voluntarily at a regional immigration office in order to report their illegal residence" is considered a positive factor. Conversely, a prolonged period of illegal residence is assessed as a negative factor.

And even after an arrest, acting on your own still counts. Deciding on a direction and expressing your intention before the Article 47, paragraph (3) notice arrives; showing concrete remorse and the reality of your life within the criminal process; and, if you are seeking to remain, building up materials from an early stage. These are all actions the person and the family can still choose after an arrest. And if a family member or friend of yours is currently in a state of illegal residence and has not yet been caught, the sub-item (a) route remains open for that person.

About our office

Funado International Law Office (Fuse Building Main Wing 3F, 3-4-10 Takada, Toshima-ku, Tokyo) is led by attorney Daisuke Matsumura (Daiichi Tokyo Bar Association, registration number 59077, admitted 2019), whose principal areas of focus are criminal defense for foreign nationals, centered on clients of Chinese nationality, and immigration procedures.

Three features define how we work. First, Mr. Matsumura personally handles every stage, from the first detention-center visit immediately after arrest through to the close of trial. The work is not delegated to clerical staff or junior attorneys. Second, a dedicated in-house Chinese interpreter experienced in cases involving foreign nationals is available at the office. For languages other than Chinese, we arrange an interpreter according to the needs of the case. Being unable to tell how your own words are being rendered during questioning is one of the most serious problems in criminal cases involving foreign nationals, and having an interpreter working for you, separate from the one assigned by the investigating authorities, addresses it directly. Third, after the criminal process ends, renewals and changes of status of residence are handled on a one-stop basis together with an affiliated administrative scrivener.

Two related matters we have handled are described below.

Case D-1 (a difficult special permission to stay obtained in a single procedure). A client who had come to Japan for tourism had a child with a Japanese woman, but lost his status of residence and was arrested and prosecuted for illegal residence. The marriage and acknowledgment of paternity had not been completed and were initially not accepted by the authorities. Mr. Matsumura negotiated with the authorities from a constitutional standpoint, secured the marriage and the acknowledgment, and conducted the defendant questioning and witness examination with the immigration-law criminal trial firmly in view. Even though almost no official documents were available from the country of nationality, favorable evidence was gathered, and by analyzing past cases in which the immigration authorities had granted permission, special permission to stay was obtained in a single procedure.

Case D-2 (relief for a woman facing deportation). The client was wrongly accused of facilitating unlawful employment and faced deportation. Against the established practice holding that grounds for deportation require neither intent nor negligence, litigation was brought testing the reach of the principle of culpability, and the matter was contested up to the appellate level. Special permission to stay was subsequently granted by the immigration authorities.

The initial consultation is free of charge. Fees are quoted according to the circumstances of each case. Where the person concerned is in custody, we also accept consultations from family members.

Closing

The time after an arrest weighs heavily on the person and on the family. Even within that time, however, whether room remains under Article 24-3, item (i)(b), how far the criminal disposition can be kept light, and how much material can be assembled for special permission to stay all depend on whether anyone acts. Do not decide alone whether it is too late. Tell the facts to a professional at the earliest opportunity.

This article is a general explanation. For an individual case, please consult an attorney directly.

Past results are based on 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)

Principal areas of focus: criminal defense for foreign nationals, centered on clients of Chinese nationality, and immigration procedures.

Results include an acquittal in a case under the Stimulants Control Act (possession for the purpose of profit), a non-prosecution disposition in a specialized 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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