Will I Be Detained If I Report an Overstay in Japan? Detention Orders and the Supervision Measure (Kanri Sochi)

If your period of stay has expired and you are still living in Japan, the thing that keeps you awake is usually not the law itself. It is something far more concrete. If I walk into an immigration office and report myself, will I be taken into custody that same day and not come home? For people with young children, or with ongoing medical treatment, that fear is heavier still.

Since the amended Immigration Control and Refugee Recognition Act (Immigration Control Act, 出入国管理及び難民認定法) took effect on 10 June 2024, there are two tracks for how a person is physically handled during deportation proceedings: detention under a written detention order (収容令書), or the supervision measure (監理措置, kanri sochi), under which the procedure moves forward while you live in the community under a designated supervisor. This article explains where the dividing line lies and what the supervision measure requires of you.

If I report myself to immigration, will I be detained the same day?

Not necessarily. After an immigration control officer conducts a violation investigation under Article 27 and the following provisions, and reasonable grounds are found to suspect that the person falls under a ground for deportation, the supervising immigration inspector must examine whether to place that person under the supervision measure or to detain them (Article 39, paragraph (2)). If detention is chosen, a written detention order is issued (Article 39-2). If it is appropriate to proceed without detention, a supervision measure decision is made (Article 44-2, paragraph (1)). Remaining beyond your period of stay is a ground for deportation under Article 24, item (iv)(b), but falling under a ground for deportation and being detained are two separate determinations.

What is the difference between detention and a supervision measure decision?

Detention means being held in an immigration facility. The supervision measure means that deportation proceedings continue while you live in society under the supervision of a person selected as your supervisor. Article 44-2, paragraph (1) provides that a supervision measure decision is to be made when, having considered the degree of the risk that the person will flee or destroy evidence, the degree of the disadvantage the person would suffer from detention, and other circumstances, it is appropriate to conduct the deportation procedure without detaining them.

Even if you are already detained, you may request the supervising immigration inspector to place you under the supervision measure (paragraph (4)). If you cannot make that request yourself because of age, illness or another reason, a spouse, child, parent or other relative living with you may make it on your behalf, in that order (paragraph (5)). Acting on such a request or on its own authority, the office may decide to release the person and place them under the supervision measure (paragraph (6)). Where it is considered necessary to prevent flight or destruction of evidence, payment of a deposit may be imposed as a condition, in an amount set by Ministry of Justice ordinance (paragraphs (2) and (6)). One point is easy to miss: while a person is under the supervision measure, they are deemed not to be a person who remains beyond the period of stay within the meaning of Article 70, paragraph (1), item (v), and their residence during that time is deemed not to constitute illegal residence (paragraph (10)).

Who can serve as a supervisor, and what does a supervisor do?

The supervisor is selected by the supervising immigration inspector who makes the decision, from among persons who understand the duties of a supervisor, who have consented to serve as that foreign national's supervisor, and who are considered suitable in light of their ability to carry out the task (Article 44-3, paragraph (1)). No particular professional qualification is required by law. Relatives, acquaintances, people connected with a former employer, supporters and lawyers are all within contemplation.

The supervisor's duties are to keep track of the person's living circumstances and to provide guidance and supervision, within the scope necessary to secure their appearance and compliance with the conditions (paragraph (2)); to respond to consultations and endeavour to provide support relating to maintaining housing, necessary information, advice and other assistance (paragraph (3)); to notify the supervising immigration inspector when the statutory grounds arise (paragraph (4)); and to report on living circumstances and compliance when requested (paragraph (5)). A supervisor who wishes to resign must give advance notification (paragraph (7)), and the selection may be revoked where it is no longer appropriate for that person to continue (paragraph (6)). Identifying someone willing to act as supervisor at an early stage is, in practice, one of the most important pieces of preparation.

What conditions and reporting duties come with the supervision measure?

When the decision is made, conditions are imposed: restrictions on residence and on the scope of movement, the duty to appear when summoned, and any other conditions considered necessary to prevent flight and the destruction of evidence. These are the supervision measure conditions (Article 44-2, paragraph (1)). A written notice of the decision setting out the conditions is delivered to the person, and a certified copy to the supervisor (paragraph (7)). The person under supervision must report to the supervising immigration inspector on compliance with those conditions, on any activities carried out under permission, and on other matters specified by ordinance; the timing and method are set by ordinance and reports must be made periodically (Article 44-6). Failing to report, or making a false report, is a ground for revocation. If something changes, such as a move or a loss of contact with your supervisor, do not decide on your own to leave it alone. Speak to your supervisor and your lawyer first.

Can I work while I am under the supervision measure?

Working without permission is itself a criminal offence. Under a supervision measure imposed before a written deportation order is issued, the supervising immigration inspector may, where it is necessary for the person to maintain their livelihood and is considered appropriate, permit them, on their own application with the supervisor's consent, to engage in remunerated activity under an employment contract with a public or private organisation in Japan designated by the supervising immigration inspector, within the scope necessary to maintain that livelihood (Article 44-5, paragraph (1)).

A person who engages in remunerated activity, or in activity operating a business involving income, without that permission falls under Article 70, paragraph (1), item (ix). The statutory penalty under that paragraph is a kōkinkei (custodial sentence) of up to three years or a fine of up to three million yen, and both may be imposed together. By contrast, the supervision measure that applies after a written deportation order has been issued (Article 52-2) contains no such work permission scheme, so the same activity falls under Article 70, paragraph (1), item (x) and carries the same statutory penalty. When money becomes tight is precisely when you should not decide by yourself to start working.

When can the supervision measure be revoked and detention follow?

Article 44-4 governs this. Where a deposit was imposed as a condition and was not paid by the deadline, and where the supervisor's selection has been revoked or the supervisor has resigned or died and no new supervisor can be selected, the decision must be revoked (paragraph (1)). In addition, it may be revoked where the person has fled or there are reasonable grounds to suspect that they will, where they have destroyed evidence or there are reasonable grounds to suspect that they will, where they have violated the supervision measure conditions, where they have engaged in remunerated activity or the like without permission, or where they have failed to report or made a false report (paragraph (2)).

On revocation, a written revocation of the decision is prepared together with a written detention order, and the person is detained (paragraphs (3) and (6)). A deposit that has been paid may be confiscated in whole or in part (paragraph (5)). Separately, where a person violates the conditions by fleeing or by failing without justifiable reason to answer a summons, a penal provision is set out in Article 72, item (iii). The supervision measure is not a return to freedom. It is permission to live in the community on conditions.

How do detention and the supervision measure relate to special permission to stay?

Directly. Article 50, paragraph (2) provides that an application for special permission to stay (在留特別許可) is made to the Minister of Justice, in accordance with procedures specified by ordinance, 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 arises only once one of those two states has been reached; before that point, what can be done is to urge the Minister to exercise the power on their own authority. Under paragraph (3), no application can be made once a written deportation order has been issued. The point of decision comes when the person accepts the finding of the immigration inspector (Article 47, paragraph (3)) or the determination of the special inquiry officer (Article 48, paragraph (8)), or after the Minister has ruled that an objection is without grounds (Article 50, paragraph (4)).

Whether you can remain in the community is therefore not merely a question of convenience. It affects how quickly you can gather documents establishing your family relationships, housing, livelihood and work history, and how you build your case around the matters listed in Article 50, paragraph (5). Custody and residence cannot be separated.

Why it matters to come forward before you are caught

It makes a difference both to how you are treated physically and to when you may enter Japan again. The degree of the risk of flight or destruction of evidence is one of the considerations in deciding on the supervision measure (Article 44-2, paragraph (1)). A case in which the person came forward before any violation investigation began, has a clear address, and has already identified a specific person willing to act as supervisor is a case in which that point is easier to explain. The Guidelines on Special Permission to Stay (revised March 2024, effective 10 June 2024) also expressly state that voluntarily appearing at a regional immigration services bureau in order to report unlawful residence is taken into account as a positive factor, while prolonged unlawful residence is treated as a negative factor.

The number of years changes as well if you decide to leave. A person who voluntarily appeared before the violation investigation began (Article 24-3, item (i)(a)) and departs under a departure order faces a landing denial period of one year from the date of departure (Article 5, paragraph (1), item (ix)(e)). A person who expressed the intention to depart only after the investigation had begun (Article 24-3, item (i)(b)), and who then seeks to enter for short-term stay activities, faces five years (Article 5, paragraph (1), item (ix)(f)). If you are apprehended and no longer meet the requirements for a departure order, the case proceeds as deportation, with five years from the date of departure (item (ix)(c)), or ten years where there is a prior deportation or departure order (item (ix)(d)). The order in which you act decides the years that follow.

About our office

Funado International Law Office (Fuse Building Main Wing 3F, 3-4-10 Takada, Toshima-ku, Tokyo) concentrates on criminal defence for foreign nationals and immigration procedures, with a client base centred on Chinese nationals. Daisuke Matsumura, attorney at law (Daiichi Tokyo Bar Association, registration number 59077, admitted 2019), handles every stage personally, from the first detention interview to the close of trial, without delegating to clerical staff or junior attorneys. For Chinese, a dedicated in-house interpreter experienced in cases involving foreign nationals is available on site, so clients can use an interpreter who acts for them, separately from the interpreter appointed by the investigating authorities. For other languages, we arrange an interpreter according to the circumstances of the case. Renewal or change of status of residence after criminal proceedings conclude is handled on a one-stop basis with an affiliated administrative scrivener.

One representative matter involved obtaining special permission to stay, widely regarded as difficult to secure, in a single round of proceedings. The client had entered for tourism, had a child with a Japanese woman, lost his status of residence and was arrested and prosecuted for unlawful residence. Marriage and acknowledgement of paternity were incomplete and the filings were initially refused; our office negotiated from a constitutional perspective, completed both, conducted the examinations with the criminal trial in view, analysed past grants, and obtained the permission.

Another matter concerned a woman accused of promoting illegal employment and facing deportation. Against the established practice that grounds for deportation require neither intent nor negligence, our office brought litigation questioning the reach of the principle of culpability and pursued it through the appellate stage. Special permission to stay was subsequently granted.

Where custody is at stake, much can be prepared before you come forward: identifying a person willing to serve as supervisor, assembling material on housing and living circumstances, and preparing a request to be placed under the supervision measure. The first consultation is free of charge, and fees are quoted according to the case.

Closing

Whether the outcome is detention or the supervision measure depends heavily on what you can put in front of the office on the day you appear. Housing, a person willing to act as supervisor, and documents showing your family relationships and the reality of your daily life. Putting these in order before you move is the best preparation there is.

This article is a general explanation. For your own case, please consult a lawyer directly. Past results are based on the individual circumstances of each matter 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)

Practice centred on criminal defence for foreign nationals and immigration procedures, primarily for clients of Chinese nationality.

Results include an acquittal in a Stimulants Control Act case (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 a matter regarded as difficult.

Contact

Funado International Law Office

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

WeChat ID: matsumura1119

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