The Three Stages of Japan's Deportation Procedure: Violation Examination, Oral Hearing, and Objection

If you have stayed in Japan past the expiry of your period of stay, and you have either reported to an immigration office yourself or been detected by the authorities, the first question is usually the same: what happens next, and at which point will anyone actually listen to my side of the story. Japan's deportation procedure is not a single review. The Immigration Control and Refugee Recognition Act (Immigration Control Act) sets out three stages, the violation examination, the oral hearing, and the objection to the Minister of Justice. Each has a different decision-maker and a different set of arguments available. This article follows Articles 45 through 49 in order, and explains the point at which special permission to stay is decided (Article 50, paragraph (4)).

What is the order of the deportation procedure in Japan?

An inquiry begins, a decision is made about custody, and only then do the three stages of review take place. The sequence is as follows.

• Violation inquiry 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))
• Stage one: violation examination by an immigration inspector (Article 45 and following), concluding in a finding (Article 47, paragraph (3))
• Stage two: if you contest the finding, a request for an oral hearing (Article 48), concluding in a judgment by a special inquiry officer (Article 48, paragraph (8))
• Stage three: if you contest the judgment, an objection filed with the Minister of Justice (Article 49), concluding in a decision by the Minister
• After that, either special permission to stay (Article 50) or issuance of a written deportation order (Article 51)

If you accept the conclusion of one stage, the procedure does not move on to the next. If you contest it, you obtain a decision at the next stage.

What is examined at the first stage, the violation examination?

An immigration inspector examines whether you fall under a ground for deportation. Where you have remained past your period of stay, the central question is Article 24, item (iv)(b) of the Immigration Control Act, which covers a person who stays in Japan beyond the period of stay without having received an extension or a change of that period. Other grounds may also arise, such as exclusive engagement in activities outside the scope of your status of residence under Article 24, item (iv)(a).

The conclusion is communicated as a finding under Article 47, paragraph (3). This stage is mainly an examination of whether a ground for deportation exists. It is not the moment at which your reasons for wishing to remain in Japan are weighed on their own terms; those are addressed at the later stages and in the decision on special permission to stay. Even so, what you say here is recorded in a written statement and becomes the foundation for everything that follows. How the period of stay came to be exceeded, how you have lived since, and what family ties you have should be stated accurately, without departing from the facts and without leaving anything out.

What can I do if I disagree with the finding?

You may request an oral hearing under Article 48. That is stage two. If you do not request one and instead indicate that you accept the finding, the procedure does not go further. There is a time limit for the request, and you must indicate your intention within a short period after receiving notice. There is very little room to hesitate, so we recommend contacting a lawyer on the day you receive the notice and deciding then.

What arguments can be made at the oral hearing?

The oral hearing is conducted by a special inquiry officer, who reviews whether the finding was correct, that is, whether there is any error in the conclusion that a ground for deportation applies. Where the facts are genuinely in dispute, for instance where there has been a misunderstanding about whether a status of residence existed or about when the period of stay began to run, this is the place to present documents and argue the point. The conclusion is a judgment under Article 48, paragraph (8). In practice, there are many cases in which the ground for deportation is no longer contested at this stage and the emphasis shifts to the circumstances supporting special permission to stay. Which posture to take depends on the facts and on how the factors in Article 50, paragraph (5), discussed below, are likely to be assessed.

What happens if I also disagree with the judgment?

You may file an objection with the Minister of Justice under Article 49. This is stage three, and the final stage within the deportation procedure itself. The Minister's conclusion takes the form of a decision. Even if the Minister decides that the objection is without grounds, that is not the end, because the moment after that decision is precisely when special permission to stay is considered.

At which of the three stages is special permission to stay decided?

Article 50, paragraph (4) provides that special permission to stay may be granted only after the person has accepted the finding under Article 47, paragraph (3), or accepted the judgment under Article 48, paragraph (8), or after the Minister of Justice has decided that the objection is without grounds. The point of decision therefore comes once the procedural conclusion has become fixed at one of the three stages. It is not necessary to exhaust all three. How far to contest depends on whether there is a genuine dispute about the ground for deportation, how far the evidence supporting your wish to remain has been assembled, and what your custody situation is.

The key statutory points are these.

• When an application may be made: under Article 50, paragraph (2), the application is made by a foreign national who has been detained under a written detention order or who has received a supervision measure decision. Before that point, what can be done is to urge the Minister to act on his or her own authority.
• When an application can no longer be made: under Article 50, paragraph (3), no application may be made after a written deportation order has been issued.
• Factors considered: under Article 50, paragraph (5), the reasons for wishing to stay, family relationships, conduct, the circumstances of entry into Japan, the length of stay and the legal status held during that time, the facts constituting the ground for deportation, and the need for humanitarian consideration, as well as domestic and international circumstances and the effect on illegal residents in Japan, and other circumstances.
• The heightened requirement: the proviso to Article 50, paragraph (1), applies to persons sentenced to life or to a kōkinkei (custodial sentence) exceeding one year, excluding a person given a full suspension of execution and a person given a partial suspension where the unsuspended portion is one year or less, and to certain other categories. For them, permission may be granted only where there are special circumstances such that refusing permission would be found to lack humanitarian consideration. A case involving only overstaying under Article 24, item (iv)(b) is not subject to that heightened requirement, which is a favourable point.
• Written reasons: under Article 50, paragraph (10), where special permission to stay is refused, the person must promptly be notified in writing with reasons attached.

What should I watch for if a criminal case is running in parallel?

Overstaying is not only an administrative matter. It is an offence under Article 70, paragraph (1), item (v) of the Immigration Control Act, and 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. That penalty does not change with the length of the overstay. What changes is the disposition the prosecutor selects and the range of sentence. In practice, the length of time spent overstaying is treated as the period during which the unlawful situation was maintained, and it bears directly on the severity of the disposition. Cases where the period is short, where the person reported voluntarily, and where the basis of daily life and family ties are clear tend toward lighter dispositions; cases where the period runs to several years, where unlawful work is involved, and where further violations such as forged documents are added tend toward heavier ones. There is a considerable range from case to case.

Just as importantly, the severity of the criminal disposition and the question of whether you can remain in Japan are separate matters. Even with a suspended sentence, and even where the prosecutor decides not to prosecute, the deportation procedure continues under Article 24, item (iv)(b). Conversely, once an unsuspended sentence exceeds one year, the heightened requirement in the proviso to Article 50, paragraph (1), applies, and the outlook for special permission to stay becomes markedly harder. That is why work aimed at a lighter criminal disposition and work aimed at special permission to stay must be designed together from the first steps, and why what is said at each of the three stages should be decided with the progress of the criminal case in view.

Why acting before detection matters

All of the above concerns what happens once the deportation procedure has begun. But the way you enter that procedure changes a great deal, including whether you go through it at all, and when you may return to Japan after leaving.

The departure order system under Article 24-3 permits departure without detention where five requirements are all met. Item (i) distinguishes two situations: (a) a person who, before the violation inquiry under Article 27 has begun, appears at an immigration office of his or her own accord with the intention of leaving Japan promptly, and (b) a person who, after the violation inquiry has begun but before receiving the notice under Article 47, paragraph (3), states to an immigration inspector or immigration control officer an intention to leave Japan promptly.

That distinction determines when you may next come to Japan. A person who leaves under a departure order is denied landing for one year from the date of departure under Article 5, paragraph (1), item (ix)(e). A person falling under Article 24-3, item (i)(b), however, faces five years from the date of departure if he or she later seeks to engage in the activities of a temporary visitor, under item (ix)(f). Further, if detection means the other requirements for a departure order are not met, a departure order is unavailable and the case proceeds to deportation: five years from the date of deportation for a person with no prior deportation or departure order, under item (ix)(c), and ten years for a person who already has such a history, under item (ix)(d). A person deported on grounds falling under Article 24, item (iv)(e) through (s) is denied landing with no fixed period, under Article 5, paragraph (1), item (x).

The Guidelines on Special Permission to Stay, revised in March 2024 and in force from 10 June 2024, describe special permission to stay as an exceptional and discretionary measure for a foreign national who is to be deported. At the same time, they state expressly that appearing at a regional immigration office of one's own accord in order to report the illegal stay is taken into account as a positive factor, while prolongation of the illegal stay is assessed as a negative factor. At every one of the three stages, the fact of having come forward is a point in your favour, and the longer matters are left, the more that point erodes.

About our office

Funado International Law Office (Fuse Building Main Wing 3F, 3-4-10 Takada, Toshima-ku, Tokyo) focuses primarily on criminal defence for foreign nationals and on immigration procedures, with a client base centred on Chinese nationals. 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 handles every stage personally, from the first visit at the detention facility to the close of trial, without delegating to clerical staff or junior lawyers. Across the three stages, what is said at the violation examination carries into the oral hearing, and what is said at the oral hearing carries into the objection, so continuity in the person handling the case matters. Second, a dedicated Chinese-language interpreter experienced in cases involving foreign nationals is based at the office; for other languages, we arrange an interpreter according to the requirements of the case. Where Chinese is needed, this means you can use an interpreter who acts for you, separately from any interpreter designated by the investigating authorities. Third, matters after the criminal procedure ends, such as extension or change of a status of residence, are handled on a one-stop basis with an affiliated administrative scrivener.

Two related matters we have handled are set out below.

• Special permission to stay obtained in a single round of proceedings in a difficult case: the client came to Japan as a tourist and had a child with a Japanese woman, but lost his status of residence and was arrested and prosecuted for illegal stay. The marriage and acknowledgment of paternity were incomplete and the filings were initially refused. We negotiated with the authorities from a constitutional standpoint and brought both about, assembled favourable evidence despite the near absence of official documents from the client's country of nationality, and analysed past cases in which permission had been granted.
• Relief for a woman facing deportation over an allegation of promoting illegal work: the client was wrongly accused of promoting illegal employment and faced deportation. Against the established practice that grounds for deportation require neither intent nor negligence, litigation was brought questioning the reach of the principle of individual responsibility and pursued 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.

Closing

The deportation procedure proceeds in three stages, and what can be argued differs at each. Special permission to stay is considered only after the conclusion has become fixed at one of them, under Article 50, paragraph (4). What you argue at which stage, and when you submit which document, is often impossible to undo later. Whether the procedure has already begun or you are still considering whether to report voluntarily, please seek advice early.

This article is a general explanation. For your own case, please consult a lawyer directly. Past results reflect the particular 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 (Fuse Building Main Wing 3F, 3-4-10 Takada, Toshima-ku, Tokyo)

Focuses primarily 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 special 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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