“I’ll Wait and See a Little Longer”: What Overstaying Time Costs You in Japan, and What It Gains You

Your period of stay has expired, and you are still living in Japan. You know this. But you have a job, a place to live, and people who depend on you, and the one decision you cannot make is to walk into the Immigration Services Agency tomorrow. So you tell yourself you will wait and see a little longer, until things settle down. A week becomes a month, and a month becomes a year. We hear this often. This article is not written to blame anyone for hesitating. It is written so that you understand, accurately, what is happening to your legal position during that waiting period. Time works against you in some ways and for you in others. Below we set out both meanings, article by article.

Is it strange to want to wait and see a little longer?

No, it is not strange. Admitting that your period of stay has expired and presenting yourself to the authorities means handing over your entire life at once. Hesitation is a natural human response. But in law, waiting is not treated as doing nothing. It is treated as a choice, and it has consequences. While you wait, the period of unlawful residence accumulates, and the requirements of the procedures available to you quietly change. So the point is not that you are at fault for hesitating. The point is that waiting is itself a choice with effects written into the statutes.

What is legally happening while I wait?

Two things are running at the same time: a criminal matter and an immigration status matter.

On the criminal side, remaining in Japan after your period of stay has expired constitutes the offense of illegal overstay under Article 70, paragraph (1), item (v) of the Immigration Control and Refugee Recognition Act (Immigration Control Act, 入管法). That item covers a person who "remains in Japan beyond the period of stay (including the period during which the person may stay in Japan under Article 20, paragraph (6)) without receiving an extension or a change of the period of stay." The opening clause of Article 70, paragraph (1) sets the statutory penalty at kōkinkei (custodial sentence) of not more than three years or a fine of not more than 3,000,000 yen, or both. Overstaying is therefore not only an administrative problem. It is a crime.

On the status side, Article 24, item (iv)(b) of the Immigration Control Act designates as a ground for deportation a person who "remains in Japan beyond the period of stay without receiving an extension or a change of the period of stay." This is the crucial point: that ground has existed since the first day after your period of stay expired. Being detected by the authorities does not create the ground for deportation. Detection is simply the event by which an already existing situation becomes known.

What do I lose as time passes?

The largest loss is the departure order option itself, and with it the shorter period during which you are barred from re-entering Japan.

The departure order (出国命令) is the procedure under Article 24-3 of the Immigration Control Act that allows a person to leave Japan without being placed in detention. It is available to a foreign national who falls under Article 24, item (ii)-4, item (iv)(b), or items (vi) through (vii), and who satisfies all five of the following requirements. The passage of time bears directly on items (i) and (iv).

• Item (i) The person falls under (a) or (b). (a) A person who, before the commencement of a violation investigation under Article 27, has voluntarily appeared at an immigration office with the intention of promptly departing from Japan. (b) A person who, after the commencement of a violation investigation but before receiving the notice under Article 47, paragraph (3), has stated to an immigration inspector or immigration control officer that the person intends to depart from Japan promptly.
• Item (ii) The person does not fall under any of Article 24, items (iii) through (iii)-5, item (iv)(c) through (iv)(y), item (viii) or item (ix).
• Item (iii) The person has not, after entering Japan, been sentenced to kōkinkei (custodial sentence) for an offense under Part II, Chapter XII (breaking into a residence), Chapters XVI through 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) or Chapter XXXIX (stolen property) of the Penal Code; an offense under Article 1, Article 1-2 or Article 1-3 of the Act on Punishment of Physical Violence; an offense under the Act on Prevention of Burglary; an offense under Article 15 or Article 16 of the Act on Prohibition of Possession of Special Picking Tools; an offense under Article 2 or Article 6, paragraph (1) of the Act on Punishment of Acts Causing Death or Injury by Driving a Motor Vehicle; or an offense under Article 22 of the Act on Prevention of Disposal of Stolen Specified Metal Products.
• Item (iv) The person has not previously been deported from Japan, and has not previously departed under a departure order issued pursuant to Article 55-85, paragraph (1).
• Item (v) The person is expected with certainty to depart from Japan promptly.

When a departure order is issued, the supervising immigration inspector orders prompt departure and, under Article 55-85, paragraph (1), sets a departure deadline of not more than 15 days. Conditions such as restrictions on residence and area of movement may be attached (paragraph (3) of the same Article).

This is where the passage of time bites. Article 5, paragraph (1), item (ix)(e) sets the period of denial of landing for a person who departed under a departure order at one year from the date of departure. However, where a person falls under the Article 24-3, item (i)(b) category, meaning the person stated the intention to depart only after the violation investigation had begun, departed under a departure order, and subsequently seeks to engage in the activities of a temporary visitor, Article 5, paragraph (1), item (ix)(f) sets the period at five years from the date of departure. Once the moment for voluntary appearance has passed and an investigation has started, "going home under a departure order" can mean a very different date for your next visit to Japan.

Furthermore, depending on what the investigation reveals, the requirements in items (ii), (iii) and (iv) of Article 24-3 may not be met, in which case the departure order procedure is not available at all. The case then proceeds as a deportation. The period of denial of landing is then five years from the date of deportation under Article 5, paragraph (1), item (ix)(c) for a person with no prior deportation or departure order history, and ten years under item (ix)(d) for a person who already has such a history. A person deported on the basis of Article 24, item (iv)(e) through (iv)(y) falls under Article 5, paragraph (1), item (x), for which no fixed period is prescribed. Article 5, paragraph (1), item (v), which concerns a record of punishment for violations of narcotics-related laws, likewise prescribes no time limit.

Time also works against you on the criminal side. The statutory penalty does not change with the length of the overstay. What changes is not the statutory penalty but the prosecutor's choice of disposition and the range of sentencing. In practice, the length of the overstay, understood as the period during which the unlawful state was allowed to continue, is a central factor bearing directly on the severity of the disposition. Cases involving a short period, voluntary appearance, and a clear livelihood and family situation tend toward lighter outcomes. Cases running to several years, accompanied by unauthorized work and compounded by other violations such as forged documents, tend toward heavier outcomes. The actual outcome varies from case to case and is never determined by the length of stay alone.

Is there anything I gain as time passes?

Yes. What you gain is a record of life actually lived in Japan. As the years pass, family relationships develop, children are born, ties to the local community form, and records of tax payment and social insurance accumulate. These are not ignored when special permission to stay is considered.

Article 50, paragraph (5) of the Immigration Control Act provides that the Minister of Justice is to consider the reason the person wishes to stay, family relationships, conduct, the circumstances of entry into Japan, the length of residence in Japan, the person's legal status during that period, the facts constituting the ground for deportation, and the need for humanitarian consideration, and in addition domestic and international circumstances and the effect on illegal residents in Japan, along with other circumstances. Family relationships, conduct, and the need for humanitarian consideration are precisely the things that are built up in daily life.

Note carefully, however, that the same Article 50, paragraph (5) lists "the length of residence in Japan" alongside "the person's legal status during that period." Time accumulated without a status of residence is not automatically credited as a favorable circumstance. The Guidelines on Special Permission to Stay, revised in March 2024 and in force from 10 June 2024, characterize special permission to stay as "an exceptional and benevolent measure taken with respect to a foreign national who ought to be deported from Japan," and state that the prolongation of unlawful residence is evaluated as a negative factor. In other words, even in the context of special permission to stay, time pushes in both directions at once.

Do what I lose and what I gain balance out?

They do not, because they are different in kind.

What you lose is an option itself, and the loss is irreversible. The requirement in Article 24-3, item (i)(a), that you appeared voluntarily before the violation investigation began, cannot be recovered once that moment has passed. The clock does not run backward. The period of denial of landing is similarly definite: whether it is one year under item (ix)(e), five years under item (ix)(f), five years under item (ix)(c), or ten years under item (ix)(d) turns on whether the statutory requirements are met.

What you gain, by contrast, is one factor among many. Family relationships and a settled livelihood are weighed together with everything else in the comprehensive judgment under Article 50, paragraph (5). They are not the kind of thing that guarantees permission. And the very period over which they accumulate may itself be evaluated negatively as the prolongation of unlawful residence.

Something that certainly diminishes, traded for something that may or may not grow and that carries no guarantee. That is the trade you are making when you decide to wait and see.

What changes if I receive a sentence that is not suspended?

The structure of the statute makes special permission to stay considerably harder to obtain. The proviso to Article 50, paragraph (1) provides that where the person has been sentenced to kōkinkei (custodial sentence) for life or for a term exceeding one year (excluding a person granted full suspension of execution of the sentence, and a person granted 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 item (iv)(e) through (iv)(y), permission may be granted "only where it is found that there are special circumstances such that denying the person residence in Japan would be lacking in humanitarian consideration."

A case involving only illegal overstay under Article 24, item (iv)(b) does not fall within that heightened requirement. That is a favorable point. But if the overstay becomes prolonged and is compounded by unauthorized work or document forgery, the sentence may become heavier and the case may cross into the territory of the proviso. In this respect too, waiting narrows your prospects.

The reverse does not hold either. A light criminal outcome does not mean you may remain. Even with a suspended sentence, and even with a decision not to prosecute, the deportation procedure proceeds under Article 24, item (iv)(b). Article 24, item (iv)(i) treats as a ground for deportation a person "sentenced, on or after 1 November 1951, to kōkinkei (custodial sentence) for life or for a term exceeding one year," while excluding a person granted full suspension of execution of the sentence and certain others. What that exclusion removes is only the applicability of item (iv)(i). The person already falls under item (iv)(b). The belief that "a suspended sentence means everything is fine" is simply wrong. For that reason, the work of reducing the criminal disposition and the work of securing permission to stay must be designed as a single strategy from the very first step.

What does it mean to act before being detected?

It matters both under the statute and under the Guidelines.

Under the statute, appearing voluntarily at an immigration office before the violation investigation begins brings you within Article 24-3, item (i)(a), and the period of denial of landing after departing under a departure order is one year under Article 5, paragraph (1), item (ix)(e). If instead you fall within item (i)(b), having stated your intention to depart only after the investigation had begun, and you later seek to come to Japan as a temporary visitor, the period is five years under Article 5, paragraph (1), item (ix)(f).

Under the Guidelines on Special Permission to Stay, revised in March 2024 and in force from 10 June 2024, the section on "other circumstances" expressly states that the fact that the foreign national voluntarily appeared at a regional immigration office in order to report their unlawful residence is considered a positive factor. That single fact therefore operates both on the statutory period and on the discretionary evaluation.

Waiting also has one further characteristic that is easy to overlook. You do not get to choose the date on which you are detected. A street questioning, an inspection at your workplace, an inquiry arising from a family member's application: the trigger lies outside your control. Choosing to wait is choosing to carry, every single day, a situation that may come to light at any moment.

Would it not be better to consult a lawyer after I have a family or after more years have passed?

The feeling is understandable, but the record of life you build by waiting and the options you lose by waiting are not exchangeable for one another. Both can be pursued at the same time. The work of documenting your life in Japan carefully and organizing the evidence can be done just as well starting today.

Timing within the procedure also matters. Article 50, paragraph (2) provides that an application for special permission to stay is made to the Minister of Justice, in accordance with the procedure prescribed by Ministry of Justice order, by a foreign national detained under a written detention order or a foreign national who has received a supervision measure decision (監理措置決定). Before that stage, what can be done is not an exercise of a right to apply but activity seeking the exercise of the Minister's authority. Article 50, paragraph (3) provides that no application may be made after a written deportation order has been issued. Under Article 50, paragraph (4), 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 an objection is without grounds. The moment of decision is therefore fixed by the flow of the procedure (violation investigation under Article 27 and following; a written detention order under Article 39 or a supervision measure decision under Article 44-2, paragraph (7); the violation examination by an immigration inspector under Article 45 and following; the finding under Article 47, paragraph (3); a request for a hearing under Article 48; the determination by a special inquiry officer under Article 48, paragraph (8); an objection to the Minister of Justice under Article 49; the decision on that objection; and then either special permission to stay under Article 50 or the issuance of a written deportation order under Article 51), and preparation has to be ready in time for it. Where a decision is made not to grant special permission to stay, Article 50, paragraph (10) requires that the person be notified promptly in writing with reasons attached.

In addition, where marriage or acknowledgment of a child is arranged only after detection, that sequence itself becomes part of what is evaluated, and explaining the circumstances usually requires considerably more care. Because order can affect outcome, "later" is not necessarily better.

About our office

Funado International Law Office (Fuse Building Main Wing 3F, 3-4-10 Takada, Toshima-ku, Tokyo) concentrates its practice on criminal defense for foreign nationals and on immigration procedures, primarily for clients of Chinese nationality. The attorney in charge, Daisuke Matsumura, is a member of the Dai-ichi 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. We do not delegate to clerical staff or junior attorneys. Second, a dedicated Chinese-language interpreter experienced in cases involving foreign nationals is present at the office; for languages other than Chinese, we arrange an interpreter according to the needs of the case. This means you can rely on an interpreter who works for you, separately from the interpreter appointed by the investigating authorities. Third, matters after the criminal proceedings conclude, such as extension or change of status of residence, are handled together with an affiliated administrative scrivener as a single service.

Two related matters we have handled illustrate the point. In the first, a client who had come to Japan as a tourist had a child with a Japanese woman but lost his status of residence and was arrested and prosecuted for unlawful residence. The marriage and acknowledgment procedures had not been completed and the authorities initially refused to accept the filings. Mr. Matsumura negotiated with the authorities from a constitutional standpoint, brought the marriage and acknowledgment into effect, and conducted the defendant's examination and witness examination with the immigration criminal trial in view. Although his country of nationality issued almost no official documents, favorable evidence was assembled and past cases in which the immigration authorities had granted permission were analyzed, and special permission to stay was obtained in a single round of proceedings.

In the second, a woman was wrongly accused of the offense of promoting unlawful employment and faced deportation. Against the established practice holding that grounds for deportation require neither intent nor negligence, litigation was brought questioning the reach of the principle of culpability, and the case was fought to the appellate level. Special permission to stay was subsequently granted by the immigration authorities.

The first consultation is free of charge. Fees are quoted according to the circumstances of the case. It is entirely acceptable to come to us before you have decided whether to present yourself to the authorities. Knowing how many options you still have is valuable in itself, before you decide anything.

In closing

Waiting and seeing proceeds quietly. On days when nothing appears to be happening, the requirements of the procedures available to you and the date on which you could next come to Japan are both moving. Acting on your own initiative, by contrast, gives you a clear footing both under the statutes and in the evaluation applied under the Guidelines. Whichever you choose, we would like you to choose knowing what you still have.

This article is a general explanation. For your individual case, please consult a lawyer 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

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)

Practice concentrated on criminal defense 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 specialized fraud case, and the grant 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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