When Can You Apply for Special Permission to Stay in Japan? Article 50(2) and 50(3) of the Immigration Control Act

If your period of stay has expired and you are still living in Japan, one of the first things you may want to do is apply for Special Permission to Stay (在留特別許可). Many people assume this is something they can request at any time, at any counter. It is not. The Immigration Control and Refugee Recognition Act (Immigration Control Act, 入管法) sets out precisely who may apply and during what window. This is the single most misunderstood point in the whole overstay process, and it leads many people to a false conclusion: "I cannot apply right now, so there is no chance for me." This article walks through Article 50, paragraphs (2) and (3), explains when the right to apply arises and when it is lost, and sets out what can still be done before that right exists.

When can you apply for Special Permission to Stay?

Under Article 50, paragraph (2) of the Immigration Control Act, an application may be made by a foreign national who has been detained under a written detention order (収容令書), or a foreign national who has received a supervision measure decision (監理措置決定). The right to apply arises only once you are in one of those two positions.

That paragraph provides that the application for Special Permission to Stay is made to the Minister of Justice, in accordance with the procedure prescribed by Ministry of Justice ordinance, by "a foreign national detained under a written detention order or a foreign national who has received a supervision measure decision." A written detention order is issued under Article 39 and is the document under which a person is held in an immigration facility. A supervision measure decision is made under Article 44-2, paragraph (7); instead of detention, the person continues to live in the community under the supervision of a supervisor while the procedure goes forward.

Whether you are detained or placed under a supervision measure makes no difference to whether the right to apply exists. Conversely, if you have reported yourself to a regional immigration services bureau and an immigration control officer has just begun a violation investigation (違反調査) under Article 27 and following, but no written detention order and no supervision measure decision has yet been issued, then an application under Article 50, paragraph (2) cannot yet be made.

If no detention order or supervision measure decision has been issued yet, is there nothing you can do?

No. The main clause of Article 50, paragraph (1) provides that the Minister of Justice may grant special permission to stay "upon an application by the foreign national or ex officio." The statute places two routes side by side: the application route and the ex officio route.

The words "ex officio" matter a great deal in practice. Even before the right to apply has arisen, you can submit materials on your reasons for wishing to remain, your family relationships and your circumstances of life, state your position, and ask the authorities to exercise that ex officio power. The materials filed when you report yourself, what you say during the violation investigation, and everything you add afterwards all become the foundation on which the later decision is made.

This is where the misunderstanding usually arises. "You cannot apply" and "you cannot make your case" are entirely different things. The period before the right to apply arises is precisely the time to plan what to present, and how, in line with the factors listed in Article 50, paragraph (5), discussed below.

Until when can you apply for Special Permission to Stay?

Article 50, paragraph (3) provides that no application may be made after a written deportation order (退去強制令書) has been issued. The issuance of the deportation order marks the end of the window.

A written deportation order is issued by the supervising immigration inspector under Article 51, for example after the Minister of Justice has decided that an objection is without grounds. Once it is issued, the application route is closed. What remains is the judicial route: litigation seeking revocation of the decision or of the deportation order, and an application for a stay of execution to halt removal.

The window for applying is therefore a limited one: from detention under a written detention order or the issuance of a supervision measure decision, until a written deportation order is issued. Depending on the case, that stretch can move quickly. Starting to gather documents only after the window opens is often too late.

If you file an application, will a decision be made straight away?

No. 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 the determination under Article 48, paragraph (8), or after the Minister of Justice has decided that the objection is without grounds.

The deportation procedure runs as follows: violation investigation (Article 27 and following); issuance of a written detention order (Article 39) or a supervision measure decision (Article 44-2, paragraph (7)); violation examination by an immigration inspector (Article 45 and following), leading to a finding that the person falls within the categories subject to deportation (Article 47, paragraph (3)). If you disagree, you may request an oral hearing before a special inquiry officer (Article 48) and receive that officer's determination (Article 48, paragraph (8)). If you still disagree, you may file an objection with the Minister of Justice (Article 49) and receive a decision.

Article 50, paragraph (4) means that the question of Special Permission to Stay can be reached only once you have indicated at some point in that sequence that you will not contest matters further, or once the objection has been decided to be without grounds. The period during which you may apply (paragraphs (2) and (3)) and the point at which the permission question is decided (paragraph (4)) are two different things. Whether to request an oral hearing, accept the finding, or file an objection is therefore not a purely procedural choice; it determines at what moment, and with what evidence in place, your case is judged.

What factors are taken into account?

Article 50, paragraph (5) sets the factors out in the statute itself: the reasons for wishing to remain in Japan; family relationships; conduct; the circumstances under which the person came to Japan; the length of residence in Japan; the person's legal status during that time; the facts that gave rise to the ground for deportation; and the need for humanitarian consideration. In addition, domestic and international circumstances and the effect on unlawful residents in Japan, among other matters, are considered.

Article 50, paragraph (1) lists the cases in which permission may be granted: item (i), where the person has permanent residence permission; item (ii), where the person once held a family register in Japan as a Japanese national; item (iii), where the person is residing under the control of another as a result of trafficking in persons or the like; item (iv), where the person has been recognized as a refugee or as a person eligible for complementary protection; and item (v), where the Minister of Justice finds other circumstances warranting special permission to stay. Most overstay cases are examined under item (v).

Where a criminal case is involved, one point requires care. The proviso to Article 50, paragraph (1) imposes a heavier requirement on a person sentenced to kōkinkei (custodial sentence, 拘禁刑) for an indefinite term or for a term exceeding one year (excluding a person whose sentence was suspended in whole, and a person given a partially suspended sentence where the unsuspended portion is one year or less), and on a person falling under Article 24, item (iii)-2, item (iii)-3, item (iv)(ha), or item (iv) sub-items オ (o) through ヨ (yo). For those persons, permission may be granted "only where there are found to be special circumstances such that refusing to permit residence in Japan would be lacking in humanitarian consideration."

A case involving only unlawful residence, that is Article 24, item (iv)(ro), does not fall within that heavier requirement. That is a favourable feature. Conversely, if a criminal court imposes an unsuspended sentence exceeding one year, the proviso applies and the outlook becomes markedly more difficult. For this reason, the work of reducing the criminal disposition and the work of obtaining Special Permission to Stay must be designed together from the very first step.

The Guidelines on Special Permission to Stay were revised in March 2024 (Reiwa 6) and took effect on 10 June of the same year. The Guidelines describe Special Permission to Stay as "a measure taken exceptionally and as a matter of grace towards a foreign national who ought to be deported from Japan," and state expressly that the fact that the person voluntarily appeared at a regional immigration services office in order to report their unlawful residence is considered as a positive factor. Prolonged unlawful residence, on the other hand, is assessed as a negative factor.

What happens if Special Permission to Stay is refused?

Article 50, paragraph (10) provides that where a disposition refusing Special Permission to Stay is made, the person must be notified promptly by a document setting out the reasons. Reasons given in writing can be examined and contested.

Once a written deportation order is then issued, Article 50, paragraph (3) closes the application route, and the matter moves into the judicial arena of revocation litigation and an application for a stay of execution. The nature of the procedure and the preparation required change completely, so please consult a lawyer as early as possible once that possibility comes into view.

Why it matters to act before you are detected

The application window opens with detention under a written detention order or a supervision measure decision, and closes with the issuance of a written deportation order. What you are able to put forward when that window opens is determined by the preparation done before it opens. Where the procedure begins with an enforcement action against you, that preparation time simply does not exist.

There is also a clear legal difference in the period of denial of landing. Article 24-3, item (i), sub-item イ (i) covers a person who, before a violation investigation under Article 27 has begun, voluntarily appears at an immigration services office with the intention of leaving Japan promptly; such a person may be dealt with by a departure order (出国命令). Where a person leaves under a departure order in that situation, the period of denial of landing is one year from the date of departure, under Article 5, paragraph (1), item (ix), sub-item ホ (ho).

By contrast, sub-item ロ (ro) of the same item covers a person who expresses the intention to leave only after the violation investigation has begun. If that person later seeks to come to Japan to engage in the activities of a temporary visitor, the period of denial of landing is five years from the date of departure, under Article 5, paragraph (1), item (ix), sub-item ヘ (he). Further, if an enforcement action means the requirements for a departure order are not met, for instance the requirement of never having been deported or having left under a departure order, or the requirement that prompt departure be reliably expected, the departure order route is unavailable and the case proceeds as deportation. The period of denial of landing is then five years from the date of deportation under Article 5, paragraph (1), item (ix), sub-item ハ (ha), or ten years under sub-item ニ (ni) where there is a prior record of deportation or of departure under a departure order.

Read together with the positive factor in the Guidelines, the decision to come forward voluntarily carries real legal weight, both where the aim is Special Permission to Stay and where the aim is to return home now and come back to Japan in the future.

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 immigration procedures, with a client base centred on Chinese nationals. Daisuke Matsumura (Dai-ichi Tokyo Bar Association, registration number 59077, admitted 2019) handles every stage personally, from the first detention visit through to the close of trial. The work is not delegated to clerical staff or junior lawyers.

A dedicated Chinese-language interpreter experienced in cases involving foreign nationals is based at the office. For other languages, an interpreter is arranged according to the requirements of the case. Clients can therefore use an interpreter who works for them, separately from the interpreter appointed by the investigating authorities. For renewal or change of status of residence after the criminal procedure has ended, we work on a one-stop basis with an affiliated administrative scrivener.

Two matters concerning Special Permission to Stay may be mentioned. In one, a client who had entered Japan for tourism had a child with a Japanese woman, lost his status of residence and was arrested and prosecuted. The marriage and acknowledgment of paternity had not been completed and the authorities initially refused to accept the filings; we negotiated on constitutional grounds and secured both, gathered favourable evidence even though almost no official documents were available from the country of nationality, and analysed past permission cases, obtaining Special Permission to Stay in a single set of proceedings.

In the other, a woman wrongly accused of promoting unlawful employment faced deportation. Against the established practice that grounds for deportation require neither intent nor negligence, we brought proceedings testing the reach of the principle of individual culpability and litigated 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 matter.

In closing

The right to apply for Special Permission to Stay arises with detention under a written detention order or a supervision measure decision, and is lost when a written deportation order is issued. What you can put before the authorities in that limited window depends on the preparation done beforehand. Even at a stage when you cannot apply, you can ask for the ex officio power to be exercised. Whatever stage you are at, begin by establishing precisely where you stand.

This article is a general explanation. Please consult a lawyer directly about your own case. The past matters described above rest on their own particular circumstances and are not a guarantee of 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 non-prosecution disposition in a specialised fraud case, and Special Permission to Stay in a matter regarded as difficult.

Contact

Funado International Law Office

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

WeChat ID: matsumura1119

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