Overstaying in Japan with a Child: What to Know Before Reporting Yourself to Immigration

Your period of stay expired some time ago, you are still in Japan, and you have a child. Few situations feel more paralysing than this one. If it were only yourself, you might be able to make a decision. But when your child attends a Japanese school, speaks Japanese with friends, and can barely speak the language of your home country, the first thought is usually not about you at all. It is: if I report myself to the Immigration Services Agency, what happens to my child? The difficulty is that waiting narrows the options. This article sets out, following the text of the Immigration Control and Refugee Recognition Act (Immigration Control Act, 出入国管理及び難民認定法), where the legal turning points lie for a parent with a minor child who is considering voluntary appearance and reporting (出頭申告), and what should be prepared in advance.

Does having a minor child make voluntary reporting more favourable?

Having a child does not decide the outcome by itself, but it is expressly written into the law as a matter to be considered. Article 50, paragraph (5) of the Immigration Control Act provides that, in deciding on special permission to stay (在留特別許可), the Minister of Justice shall consider the reasons for wishing to stay, family relationships, conduct, the circumstances of entry into Japan, the length of residence in Japan, the legal status during that period, the facts that gave rise to the ground for deportation, and the need for humanitarian consideration. A minor child bears directly on "family relationships" and on "the need for humanitarian consideration." That same paragraph, however, also requires consideration of domestic and international circumstances and of the effect on illegal residents in Japan, among other matters. A child, in other words, does not lead automatically to permission. The real turning point is whether the reality of the child's life can be shown concretely, through documents.

Will my child also become subject to deportation?

That depends on your child's own residence status. If your child has likewise remained in Japan beyond the authorised period of stay, the child falls under Article 24, item (iv)(b) of the Immigration Control Act (a person who stays in Japan beyond the period of stay without receiving an extension or change of that period) and is treated, like the parent, as a person with a ground for deportation. A child who holds Japanese nationality is not subject to deportation at all. The first thing to confirm, therefore, is each child's nationality, whether the child holds a status of residence, and when that status expires. Even within one family, how each member lost their status, and whether anyone has previously been deported or has received a departure order, can differ from person to person. If you go to report yourself while these points remain vague, the procedures for different family members will diverge, and explaining the discrepancies afterwards becomes very difficult.

How are my child's schooling and inability to speak our home language evaluated?

Both can be argued as bearing on the "length of residence in Japan," "family relationships," and "the need for humanitarian consideration" listed in Article 50, paragraph (5). The Guidelines on Special Permission to Stay (revised in March 2024 and in force from 10 June 2024) set out how each of these considerations is assessed. It is important to note, however, that the Guidelines describe special permission to stay as a measure granted "exceptionally and as a matter of grace to a foreign national who ought to be deported from Japan," and that a prolonged period of unlawful residence is itself assessed as a negative factor. A child's roots in Japan and the length of the unlawful stay are two sides of the same fact. For that reason it is not enough to say that the family has been here a long time. What is needed is a concrete account of how the child's life took shape during that period: school attendance, academic work and club activities, and ties to the local community. The same applies to language. Saying that the child "cannot speak it" is not sufficient on its own; you need to show the concrete disadvantage the child would suffer on return. Being able to hold everyday conversation but unable to read or write; never having studied school subjects at an age-appropriate level in that language; having no relative in the home country able to take the family in. Only at that level of detail does the point connect to the need for humanitarian consideration. Conversely, returning home every long holiday, or remaining enrolled at a school in the home country, tends to be assessed as showing that ties with the home country have been maintained. Both the helpful and the unhelpful facts should be identified beforehand.

What documents about my child should I prepare before reporting?

You need material that establishes family relationships and shows the reality of the child's life in Japan. The following are the basics.

• The child's passport and residence card, if any. If the passport is lost or expired, evidence of the reissue process at your embassy or consulate
• Documents relating to birth (certificate of the particulars recorded in the birth notification, the home country's birth certificate with a translation, and similar)
• Documents relating to marriage and acknowledgment of paternity. If those procedures are incomplete, material showing where they stand
• Certificate of enrolment, school reports, records of attendance, and notices issued by the school
• The maternal and child health handbook, vaccination records, and medical records (particularly important where there is a chronic condition or ongoing treatment)
• Documents concerning your housing, and the income and tax payment record of whoever supports the household
• Material showing ties to the local community (lessons and clubs, community events, written statements from supporters)

Volume alone is not the point. What matters is arranging the material so that a reader can follow where, exactly, your child's life is rooted in Japan.

If I have a child, will I avoid detention? And when can I apply for special permission to stay?

Avoiding detention cannot be promised. In deportation proceedings, after the violation investigation (Article 27 and the following articles), the case proceeds either to detention under a written detention order (Article 39) or to a decision on supervision measures (Article 44-2, paragraph (7)). Which of these applies is decided on the individual circumstances, and circumstances relating to the custody and care of a minor child are among the matters considered. As for special permission to stay, Article 50, paragraph (2) provides that the application is made to the Minister of Justice, in accordance with the procedures prescribed by Ministry of Justice ordinance, by a foreign national who has been detained under a written detention order or who has received a decision on supervision measures. The right to apply therefore arises only at that stage; before it, what can be done is to seek the exercise of the authorities' own discretion. Under Article 50, paragraph (3), once a written deportation order has been issued, no application can be made at all. What remains after issuance is litigation in court, in the form of a revocation action and an application for a stay of execution. Where a disposition refusing special permission is made, it must be notified promptly in writing with reasons attached (Article 50, paragraph (10)).

What does it mean to act before enforcement action is taken?

For a family with children, this difference carries particular weight. The departure order system under Article 24-3 applies only where five requirements are all satisfied, and item (i) of that article distinguishes two situations: (a) a person who, before the violation investigation under Article 27 has begun, appears at an immigration office of their own accord with the intention of leaving Japan promptly; and (b) a person who, after the violation investigation has begun but before receiving the notice under Article 47, paragraph (3), states to an immigration inspector or immigration control officer the intention of leaving Japan promptly. That distinction governs when you can next come to Japan. Where a person departs 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)). But where a person falling under Article 24-3, item (i)(b) departs under a departure order and then seeks to come to Japan to engage in the activities of a temporary visitor, the period is five years from the date of departure (Article 5, paragraph (1), item (ix)(f)). Further, if enforcement action means the requirements for a departure order are not met, the case proceeds as deportation: five years from the date of deportation for a person with no prior deportation or departure order (Article 5, paragraph (1), item (ix)(c)), and ten years for a person who already has such a history (item (ix)(d)). If you are thinking about your child's schooling, and about when the family could next be together in Japan, these periods cannot be left out of the decision between returning and staying. The Guidelines on Special Permission to Stay also state expressly that the fact that "the foreign national appeared at a regional immigration office of their own accord in order to report their unlawful residence" is considered as a positive factor.

If my sentence is suspended, can I stay in Japan?

Not necessarily. Criminal punishment and the right to remain are two separate questions, and this is where misunderstanding is most common. Remaining in Japan beyond the period of stay is an offence under Article 70, paragraph (1), item (v) of the Immigration Control Act, punishable by kōkinkei (custodial sentence) of not more than three years or a fine of not more than three million yen, or both. That statutory penalty does not change with the length of the overstay. What changes is the prosecutor's choice of disposition and the range of sentencing. Cases where the period is short, where the person came forward voluntarily, and where the basis of daily life and family relationships are clear tend towards lighter dispositions; cases where the period runs to years and is accompanied by unlawful work or forged documents tend towards heavier ones. The range varies with the individual case.

Against that background, Article 24, item (iv)(i) makes a person sentenced to indefinite kōkinkei or to kōkinkei exceeding one year subject to deportation, while excluding a person granted full suspension of execution of the sentence, and a person granted partial suspension where the portion not suspended is one year or less. But unlawful residence already constitutes a ground for deportation under Article 24, item (iv)(b) in its own right. Even with a suspended sentence, and even with a decision not to prosecute, the deportation procedure proceeds separately. Conversely, an unsuspended sentence exceeding one year brings into play the additional requirement in the proviso to Article 50, paragraph (1): permission may then 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 (Article 24, item (iv)(b)) does not fall under that proviso, which is a point in your favour. This is precisely why work to reduce the criminal disposition and work to obtain special permission to stay must be designed as one from the very first steps. Seen from the aim of protecting your child's life, they were never two separate tasks.

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 on immigration procedures, principally for clients of Chinese nationality. Daisuke Matsumura, the attorney in charge, is a member of the Daiichi Tokyo Bar Association (registration number 59077, admitted 2019).

At this office, Mr Matsumura handles every stage personally, from the first visit to a detained client through to the close of trial. The work is not delegated to clerical staff or junior lawyers. In cases where the outcome turns on an accumulation of details, such as a child's daily circumstances and each family member's separate immigration history, there is real value in one lawyer hearing the whole account from beginning to end. A dedicated Chinese-language interpreter experienced in cases involving foreign nationals is on staff, so that clients can use an interpreter who acts for them, separate from any interpreter appointed by the investigating authorities. For other languages, an interpreter is arranged according to the requirements of the case. Renewal or change of status of residence after the criminal proceedings conclude is handled on a one-stop basis with an affiliated administrative scrivener.

Past matters include the following.

• A client who had come to Japan as a tourist had a child with a Japanese woman, lost his status of residence, and was arrested and prosecuted for unlawful residence. The marriage and acknowledgment of paternity had not been completed and were initially refused by the authorities. Mr Matsumura negotiated with the authorities from a constitutional standpoint, secured the marriage and the acknowledgment, and conducted questioning of the defendant and examination of witnesses with the criminal trial in view. Despite the near-absence of official documents issued by the country of nationality, favourable evidence was gathered and past grants by the immigration authorities were analysed, and special permission to stay was obtained in a single set of proceedings.
• A woman was wrongly accused of promoting unlawful employment and faced deportation. Against the established practice that a ground for deportation requires neither intent nor negligence, proceedings were brought questioning the reach of the principle of individual culpability, and were 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

Voluntary reporting with a minor child means preparing more than a single adult would have to prepare. But what increases is not only the burden. The reality of your child's life in Japan is material to be argued, tied directly to the very matters Article 50, paragraph (5) sets out. Which documents, in what order, at which stage. The time available to work that out keeps shrinking while you wait.

This article is a general explanation. Please consult a lawyer directly about your individual case. Past results were based on 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 (Fuse Building Main Wing 3F, 3-4-10 Takada, Toshima-ku, Tokyo)

Concentrates on criminal defence for foreign nationals and immigration procedures, principally 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 decision not to prosecute in a special fraud case, and the grant of 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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