Why You May Need a Lawyer for Special Permission to Stay in Japan After Overstaying

You are living in Japan after your period of stay has expired, or someone in your family is in that situation. Many people in this position spend every day worrying about when they might be caught. If you still hope to build a life in Japan, the last remaining route is Special Permission to Stay (zairyū tokubetsu kyoka, 在留特別許可) under Article 50 of the Immigration Control and Refugee Recognition Act (the Immigration Control Act). At this point many people ask whether they should turn to a gyōseishoshi (administrative scrivener) or to a lawyer. This is not a question of who is better. It is a question of structure: different stages of the procedure call for different professionals. What follows explains that structure, article by article.

Do I need a lawyer to apply for Special Permission to Stay in Japan?

Not necessarily. Immigration paperwork covers a wide field in which a gyōseishoshi has real expertise. A gyōseishoshi registered as a filing agent prepares the supporting documents and files applications for certificates of eligibility, changes of status of residence and extensions of period of stay. Most day-to-day immigration procedures are handled within that framework.

Overstay cases, however, tend to bring three situations together, either at the same time or one after another. First, the overstay is treated as a criminal case and the person is arrested and held in custody. Second, the person is detained under a written detention order. Third, a deportation order has been issued and the dispute has to move to the courts. In these three situations the work consists of acting as defence counsel and of representing the client in litigation, which is the work of a lawyer.

If I am arrested for overstaying, do the criminal case and the immigration procedure run at the same time?

Yes. As a rule they run on two parallel tracks. If you deal with only one of them, the other can produce a result that cannot be undone.

On the criminal side, Article 70, paragraph (1), item (v) of the Immigration Control Act punishes "a person who stays in Japan beyond the period of stay without receiving an extension or change of the period of stay". The statutory penalty is kōkinkei (custodial sentence) of up to three years, or a fine of up to 3,000,000 yen, or both (main clause of Article 70, paragraph (1)). Overstaying is therefore not only an administrative problem; it is a criminal offence.

On the administrative side, Article 24, item (iv)(b) makes the same state of affairs a ground for deportation. The procedure begins with a violation investigation by an immigration control officer (Article 27 and following), moves through a written detention order (Article 39) or a supervision measure decision (Article 44-2, paragraph (7)), and then to examination by an immigration inspector (Article 45 and following) and a finding (Article 47, paragraph (3)). If you disagree with the finding you may request a hearing (Article 48) and receive a determination from a special inquiry officer (Article 48, paragraph (8)); if you still disagree you may file an objection with the Minister of Justice (Article 49). It is at the stage of the Minister's decision on that objection that Special Permission to Stay (Article 50) is either granted or a deportation order is issued (Article 51).

What you say in the criminal case will be compared with what you say in the immigration violation investigation, and documents filed with the Immigration Services Agency affect the evidence of mitigating circumstances in the criminal trial. That is why you need someone who can see both tracks on a single plan.

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

The severity of the criminal punishment and the question of whether you may remain in Japan are two separate matters. The belief that "a suspended sentence means everything is fine" is not accurate.

Article 24, item (iv)(j) makes it a ground for deportation to have been "sentenced to kōkinkei for life or for a term exceeding one year on or after 1 November 1951", but it expressly excludes a person granted a full suspension of execution of the sentence, and a person granted a partial suspension whose unsuspended portion is one year or less. So a fully suspended sentence for overstaying does not fall under item (iv)(j). However, the person already falls within a ground for deportation under Article 24, item (iv)(b). Even with a suspended sentence, the deportation procedure continues.

The criminal outcome also cuts the other way. The proviso to Article 50, paragraph (1) provides that where a person has been sentenced to kōkinkei for life or for a term exceeding one year (excluding a fully suspended sentence, and a partial suspension with an unsuspended portion of one year or less), among other categories, Special Permission to Stay may be granted only "where it is found that there are special circumstances such that refusing permission to stay in Japan would be lacking in humanitarian consideration". A case involving only unlawful residence (Article 24, item (iv)(b)) does not fall under that heightened requirement. That is an important point in favour of anyone seeking to remain. Conversely, once an actual custodial sentence exceeds one year, the heightened requirement applies and the outlook becomes considerably harder.

For that reason, working to keep the criminal outcome as light as possible is not only about the sentence. It also protects the foundation on which an application for Special Permission to Stay will rest. This is why the criminal case and the immigration case must be designed together from the very first day.

When and how is Special Permission to Stay applied for?

The timing is limited by statute. Article 50, paragraph (2) provides that an application may be made by a foreign national detained under a written detention order, or a foreign national subject to a supervision measure decision, following the procedure prescribed by Ministry of Justice ordinance. In other words, the right to apply arises only once one of those measures has been taken. Before that point, the work consists of asking the Minister to exercise the power on the Minister's own authority.

Under Article 50, paragraph (4), permission 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 has decided that the objection is without grounds. And Article 50, paragraph (3) provides that no application may be made once a deportation order has been issued. The window is narrow.

The matters to be weighed are also set out in the statute. Article 50, paragraph (5) requires consideration of the reasons for wishing to stay, family relationships, conduct, the circumstances of entry into Japan, the length of residence in Japan and the legal status held during that time, the facts giving rise to 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. Article 50, paragraph (10) further requires that, where permission is refused, the person must promptly be notified in writing with reasons attached.

How does a lawyer communicate with someone who is in custody or detention?

During the criminal stage the lawyer meets the client as defence counsel; during detention, through visits at the detention facility. Where the family is in the home country, contact with them proceeds in parallel.

One point that is easily overlooked is interpretation. An interpreter arranged by the investigating authorities is there to move the procedure forward, not to choose words on the client's behalf. A single shade of meaning recorded in a written statement can work against the person later in the immigration procedure, and the same problem arises in the immigration violation investigation. Securing an interpreter who works for the client, and making sure that what is said in the criminal case and what is said before the Immigration Services Agency do not conflict, matters a great deal in practice.

A deportation order has already been issued. Is there anything left to do?

The route of applying for Special Permission to Stay is closed by Article 50, paragraph (3), but that does not mean every legal avenue is exhausted. What follows is judicial relief: an action to revoke the issuance of the deportation order and related dispositions, together with an application to stay their execution.

This stage requires representation in litigation. With removal approaching in real terms, the application has to be assembled in a short time, so the arguments made and the documents filed during the earlier immigration procedure become the foundation of the case in court. No one can guarantee what a court will decide, but the issuance of a deportation order is not in itself the end of the road.

How do a gyōseishoshi and a lawyer divide the work?

It helps to think of it as different stages calling for different professionals. Where the task is to obtain a certificate of eligibility, a change of status of residence or an extension of the period of stay, and to assemble the supporting documents and file them with the authorities, a gyōseishoshi registered as a filing agent brings a high level of expertise. Where a criminal case has been opened, where the person is in custody or detention, and where a deportation order has been issued and the matter must go to court, the work is centred on criminal defence and litigation, which is the work of a lawyer.

At this office, the criminal procedure and the stage up to Special Permission to Stay are handled by the lawyer, while extensions and changes of status of residence after the criminal case has ended are handled on a one-stop basis together with a partner gyōseishoshi. A useful first step is simply to identify which stage your own situation is at.

Is there any benefit in coming forward before being caught?

Yes, and the difference shows up clearly as a matter of law.

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 otherwise to be deported, and state expressly that "the foreign national having voluntarily appeared at a regional immigration services bureau in order to report their illegal stay" is taken into account as a positive factor. Prolonged illegal stay, on the other hand, is treated as a negative factor. Simply waiting does not make time your ally.

The same is true if you decide to leave Japan. The departure order under Article 24-3 applies where five requirements are all met, the first of which is that the person either appeared voluntarily at an immigration office before the violation investigation began (item (i)(a)), or, after it began but before receiving the notice under Article 47, paragraph (3), stated an intention to leave Japan promptly (item (i)(b)). The supervising immigration inspector sets a departure deadline of no more than 15 days (Article 55-85, paragraph (1)). The subsequent period of denial of landing then differs as follows.

• A person who left Japan under a departure order: one year from the date of departure (Article 5, paragraph (1), item (ix)(e))
• A person under Article 24-3, item (i)(b) who left under a departure order and then seeks to engage in activities as a temporary visitor: five years (item (ix)(f))
• A person deported who had no previous record of deportation or departure order: five years from the date of deportation (item (ix)(c))
• A person deported who already had such a record: ten years (item (ix)(d))

Coming forward voluntarily is not the same as giving up on staying in Japan. Whether to seek permission to remain or to leave and aim to return later, when to appear, and what to prepare beforehand are matters to be designed case by case. Walking into the counter with no preparation is not advisable.

About our office

Funado International Law Office is located at Fuse Building Main Wing 3F, 3-4-10 Takada, Toshima-ku, Tokyo. Daisuke Matsumura (Daiichi Tokyo Bar Association, registration number 59077, admitted in 2019) focuses his practice on criminal defence for foreign nationals, primarily clients of Chinese nationality, and on immigration procedures.

Three points describe how we work. First, Mr. Matsumura personally handles every stage, from the first visit at the detention facility to the close of trial; the work is not delegated to clerks or junior lawyers. Second, a dedicated Chinese-language interpreter experienced in cases involving foreign nationals is available in-house; for other languages, an interpreter is arranged according to the needs of the case. This means you can use an interpreter who works for you, separately from the interpreter designated by the investigating authorities. Third, extensions and changes of status of residence after the criminal case has ended are handled on a one-stop basis with a partner gyōseishoshi.

• Special Permission to Stay obtained in a single procedure in a case regarded as difficult — 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 stay. The marriage and acknowledgement of paternity had not been completed and the authorities initially refused to accept the filings. Mr. Matsumura negotiated with the authorities from a constitutional standpoint, achieved the marriage and the acknowledgement, and conducted the defendant examination and witness examination with the criminal trial in view. Despite the near-total absence of official documents from the client's country of nationality, favourable evidence was gathered and past grant decisions of the immigration authorities were analysed, and Special Permission to Stay was obtained in a single procedure.
• A woman facing deportation over promotion of illegal work — 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", proceedings were brought to test the reach of the principle of individual culpability, and the case was fought through to the appellate stage. 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. Where the person concerned is in custody, we also accept enquiries from family members.

In closing

In proceedings concerning Special Permission to Stay, the statute fixes when an application may be made (Article 50, paragraphs (2), (3) and (4)), and once a deportation order is issued that route closes. The weight of the criminal outcome feeds back into the immigration outlook through the proviso to Article 50, paragraph (1). Deciding at the outset who does what, and at which stage, therefore makes a real difference.

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

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

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 obtained in a case regarded as difficult.

Contact

Funado International Law Office

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

WeChat ID: matsumura1119

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