Reporting to Immigration as a Family After Overstaying in Japan: What Each Member Faces

Your permitted period of stay expired some time ago, and the whole family is still in Japan. One of you is working. The children go to a Japanese school. You have thought about going home, but the one thing you want to avoid above all is the family being split apart. Many families carry this worry for years without ever walking into an immigration office.

A family can report to immigration together. But immigration procedures are not applied to a "household". They are applied to each person separately. Even if you live under one roof and go to the same office on the same day, the outcome can differ from one family member to the next. This article sets out, provision by provision, what you should prepare and watch for when a whole family is considering voluntary reporting (shuttō shinkoku, 出頭申告).

Can the whole family report to immigration together?

Yes. Going as a family, on the same day, to the same Regional Immigration Services Bureau is common in practice. The procedure itself, however, moves forward person by person, not family by family.

Remaining in Japan beyond your period of stay is the offence of illegal residence under Article 70, paragraph (1), item (v) of the Immigration Control and Refugee Recognition Act (Immigration Control Act, 入管法). 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. At the same time, overstaying is a ground for deportation under Article 24, item (iv)(b). Both the offence and the ground for deportation arise separately in respect of each individual. That is why the violation investigation (Article 27 onward) and the violation examination by an immigration inspector (Article 45 onward) are conducted for each family member individually.

Can family members receive different outcomes?

Yes, they can. The sharpest difference usually appears in whether a person can use the departure order system (shukkoku meirei, 出国命令) under Article 24-3, which does not presuppose detention. It is available to a foreign national who falls under Article 24, item (ii)-4, item (iv)(b), or items (vi) to (vii), and who satisfies all five of the following requirements.

• Falling under Article 24-3, item (i)(a) (a person who, before the start of a violation investigation under Article 27, appeared at an immigration office on their own initiative with the intention of leaving Japan promptly) or item (i)(b) (a person who, after a violation investigation has begun but before receiving the notice under Article 47, paragraph (3), stated to an immigration inspector or immigration control officer an intention to leave Japan promptly)
• Not falling under Article 24, items (iii) to (iii)-5, item (iv)(c) to (iv)(y), item (viii) or item (ix) (Article 24-3, item (ii))
• Not having been sentenced to a kōkinkei, after entering Japan, for offences of 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 handling stolen goods; or for offences under Articles 1, 1-2 and 1-3 of the Act on Punishment of Physical Violence and Others, the Act for Prevention of Robbery, Articles 15 and 16 of the Act on Prohibition of Possession of Special Picking Tools, Articles 2 and 6, paragraph (1) of the Act on Punishment of Acts Inflicting Death or Injury on Others by Driving a Motor Vehicle, or Article 22 of the Act on Prevention of Disposal of Stolen Specified Metal Products (Article 24-3, item (iii))
• Never having been deported from Japan, and never having departed under a departure order issued pursuant to Article 55-85, paragraph (1) (Article 24-3, item (iv))
• Being reliably expected to leave Japan promptly (Article 24-3, item (v))

These five requirements are assessed for each person. It genuinely happens that a husband qualifies while a wife does not, or that parents qualify while an adult child does not. Anyone who fails a requirement cannot use the departure order route and proceeds to ordinary deportation procedures. Where a departure order is issued, the supervising immigration inspector sets a departure deadline of no more than 15 days (Article 55-85, paragraph (1)) and may attach conditions such as restrictions on residence and area of movement (paragraph (3) of the same Article).

What happens if one family member has been deported before?

That person alone loses access to the departure order route, because Article 24-3, item (iv) excludes anyone who has previously been deported, or who has previously left Japan under a departure order under Article 55-85, paragraph (1).

The consequence extends to when the person may return to Japan. The period of denial of landing is set by Article 5, paragraph (1), item (ix). A deported person with no prior record of deportation or departure order faces five years from the date of departure (item (ix)(c)); a deported person who already has such a record faces ten years (item (ix)(d)). By contrast, a person who leaves under a departure order faces one year from the date of departure (item (ix)(e)). Within a single family, a difference in past history can mean the difference between one year and ten. Separately, a person deported on the basis of Article 24, item (iv)(e) through (iv)(y) is denied landing with no fixed period under Article 5, paragraph (1), item (x). Article 5, paragraph (1), item (v), which concerns a record of punishment under narcotics-related laws, likewise has no time limit.

How does the timing of reporting change the re-entry ban?

It changes it significantly. The key is the difference between (a) and (b) of Article 24-3, item (i).

A person who comes forward before a violation investigation has begun falls under (a), and if they leave under a departure order, the period of denial of landing is one year from the date of departure (Article 5, paragraph (1), item (ix)(e)). A person who states an intention to leave only after a violation investigation has begun falls under (b), and if they later seek to engage in activities under a "Temporary Visitor" status, the period becomes five years from the date of departure (item (ix)(f)).

If one family member is caught first, and the ensuing investigation reveals the status of the others living in the same household, the remaining family members who come forward afterwards may be treated under (b) rather than (a). The moment immigration or the police make contact with anyone in the household is a turning point for everyone else in it.

Can a family apply for special permission to stay together?

You can raise it for the whole family, but pay attention to when an application is possible and to the unit in which the decision is made.

Under Article 50, paragraph (1), the Minister of Justice may, even where a person falls within those subject to deportation, grant special permission to stay (zairyū tokubetsu kyoka, 在留特別許可), either upon the application of the foreign national or ex officio. Most overstay cases are considered under item (v) of that paragraph (where the Minister finds other grounds warranting special permission). Under paragraph (2), the application is made, in accordance with Ministry of Justice ordinance, by a foreign national who has been detained under a written detention order or who has received a supervision measure decision; before that stage, what you can do is urge the authorities to act on their own initiative. Under paragraph (3), no application can be made once a written deportation order has been issued.

Paragraph (5) sets out the factors by statute: the reasons for wishing to stay, family circumstances, 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, as well as domestic and international circumstances and the effect on illegal residents in Japan, among other matters. Because family circumstances are an express statutory factor, presenting the reality of your family carefully does matter. Even so, permission is decided one person at a time.

The proviso to Article 50, paragraph (1) adds a stricter requirement for persons sentenced to indefinite imprisonment or to a kōkinkei exceeding one year (excluding those whose sentence was suspended in whole, and those under a partial suspension where the unsuspended portion is one year or less), among others: permission may be granted only where there are special circumstances such that refusing it would be found to lack humanitarian consideration. A case involving only illegal residence under Article 24, item (iv)(b) does not fall under this stricter requirement. That is a favourable point for families. Conversely, if one family member has received an unsuspended sentence exceeding one year in a separate criminal case, that person's prospects become markedly harder.

The Guidelines on Special Permission to Stay (revised in March 2024, effective 10 June 2024) describe special permission as an exceptional and discretionary measure for a foreign national who ought to be deported, and expressly list the fact that the person appeared at a Regional Immigration Services Bureau on their own initiative in order to report their illegal stay as a positive factor. Prolonged illegal residence, on the other hand, is treated as a negative factor.

What can we do if outcomes differ within the family?

Start by confirming the reasons. Article 50, paragraph (10) requires that, where special permission is refused, the person be promptly notified in writing with reasons attached.

It also helps to keep the procedural sequence in view. After the violation investigation (Article 27 onward), and following detention under a written detention order (Article 39) or a supervision measure decision (Article 44-2, paragraph (7)), an immigration inspector conducts the violation examination (Article 45 onward). A person dissatisfied with the finding (Article 47, paragraph (3)) may request a hearing (Article 48); a person dissatisfied with the special inquiry officer's determination (Article 48, paragraph (8)) may file an objection with the Minister of Justice (Article 49). Special permission is decided once the person has accepted the finding or determination, or once the objection has been ruled groundless (Article 50, paragraph (4)). Once a written deportation order is issued, Article 50, paragraph (3) bars any application, and the matter moves into judicial remedies such as a revocation suit and a petition for a stay of execution.

Even where some family members end up returning home, that is not the end of the matter. The provision under which a person departs determines whether the next possible return to Japan is in one year, five years, or ten. The stay of those who remain and the re-entry of those who leave have to be designed on the same drawing board.

What should a family organise before reporting?

Check the following for every member of the family.

• Each person's date of entry, status of residence, expiry date and length of overstay (these differ even within one household)
• Whether the passport and residence card still exist, and the passport's validity
• Any past deportation or departure order, and the full entry and exit history (directly relevant to Article 24-3, item (iv))
• Each person's criminal record and prior arrests, with offence and sentence (directly relevant to Article 24-3, item (iii) and the proviso to Article 50, paragraph (1))
• Documents showing family relationships, such as marriage, birth and acknowledgment of paternity, including documents issued in your home country
• Materials showing the basis of your life in Japan, such as housing, livelihood and the children's schooling

The family needs to share a common understanding of the facts, but that is not the same as agreeing on a story. False statements and forged documents are themselves fresh violations and will decisively worsen the assessment of conduct under Article 50, paragraph (5). If family members' accounts conflict, the underlying facts themselves come under suspicion. Say plainly when you do not know something, and support what you do know with documents. This unglamorous work shapes the outcome for the whole family.

Why acting before enforcement matters

For a family, an enforcement action never affects only one person. Once one member is apprehended and a violation investigation begins, the status of the others in the household comes to light through that investigation. From that point, the remaining family members may be treated under Article 24-3, item (i)(b) rather than item (i)(a) (voluntary appearance before the investigation begins). That difference appears later as one year (Article 5, paragraph (1), item (ix)(e)) versus five years (item (ix)(f)) when someone who left under a departure order seeks to come to Japan as a Temporary Visitor.

Further, if enforcement means the requirements of items (ii), (iii) or (iv) of Article 24-3 are no longer met, the departure order option disappears altogether and the case proceeds to deportation, with a denial of landing of five years (Article 5, paragraph (1), item (ix)(c)) or ten years (item (ix)(d)). Coming forward voluntarily is, moreover, expressly listed in the Guidelines as a positive factor. The time spent hesitating is itself narrowing the range of procedures the family can still choose.

About our office

Funado International Law Office (3F Fuse Building Main Wing, 3-4-10 Takada, Toshima-ku, Tokyo) focuses on criminal defence for foreign nationals and immigration procedures, primarily for clients of Chinese nationality. Daisuke Matsumura, attorney at law (Daiichi Tokyo Bar Association, registration number 59077, admitted 2019), handles every stage personally, from the first detention visit to the close of trial, without delegating the work to clerks or junior lawyers. In family cases, each member has a different starting point, travel history and record, so identifying at the outset which procedure each person will be on is especially important.

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 circumstances of the case. Where Chinese is involved, clients can use an interpreter who works for them, separate from the interpreter appointed by the investigating authorities. 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 examples of past work. A client who had entered Japan as a tourist had a child with a Japanese woman, lost his status of residence, and was arrested and prosecuted for illegal residence. Because the marriage and the acknowledgment of paternity had not been completed, the authorities initially refused to accept the filings. Mr Matsumura negotiated with the authorities from a constitutional standpoint, secured the marriage and the acknowledgment, conducted the defendant questioning and witness examination with the criminal trial in mind, gathered favourable evidence even though almost no official documents were obtainable from the country of nationality, analysed past grants by the immigration authorities, and obtained special permission to stay in a single round of proceedings.

In another case, a woman was wrongly accused of promoting illegal employment and faced deportation. Against the established practice that grounds for deportation require neither intent nor negligence, the office brought litigation questioning the reach of the principle of individual culpability and pursued it 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. Several family members can be advised together.

In closing

Reporting as a family is a procedure that tests everyone's preparation at once. One person's history or record can shape the options open to the rest. That is precisely why it is worth laying out the facts for every family member and checking them properly before you act.

This article is a general explanation. For your own situation, 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

Daiichi Tokyo Bar Association (registration number: 59077, admitted 2019)

Funado International Law Office (3F Fuse Building Main Wing, 3-4-10 Takada, Toshima-ku, Tokyo)

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

Past results include an acquittal in a case under the Stimulants Control Act (possession for the purpose of profit), a non-prosecution decision in a specialised fraud case, and special permission to stay in a case regarded as difficult.

Contact

Funado International Law Office

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

WeChat ID: matsumura1119

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