Overstaying in Japan: How to Build Evidence for the Eight Factors in Article 50(5) of the Immigration Control Act

Your permitted period of stay has expired, and you are still in Japan. Days pass without a clear plan. You do not want to be separated from your family, and you do not want to give up the life you have built here. Yet it is not obvious what you are supposed to argue, or who will even listen to your explanation. We hear this often from the people who come to us.

Special permission to stay (zairyū tokubetsu kyoka, 在留特別許可) is not decided on a caseworker's impression alone. Following the 2023 amendment to the Immigration Control and Refugee Recognition Act (the Immigration Control Act), the matters that must be taken into account are now written into Article 50, paragraph (5). In other words, the law itself sets out the boxes you are expected to fill in. This article takes those boxes one at a time and explains, concretely, what to gather for each and how to put it together.

What factors are considered when special permission to stay is decided?

Article 50(5) of the Immigration Control Act lists the following: the reason the person wishes to remain; family relationships; conduct (sokō); the circumstances under which the person came to enter Japan; the length of stay in Japan; the person's legal status during that period; the facts constituting the ground for deportation; and the need for humanitarian consideration. In addition to these, the provision requires consideration of domestic and international circumstances, the effect on illegal residents in Japan, and other matters.

The permission itself rests on Article 50(1), under which the Minister of Justice may grant special permission to stay, either on the foreign national's application or ex officio, even where the person falls within the categories of persons subject to deportation. Item (v) of that paragraph, "where the Minister of Justice otherwise finds grounds for specially permitting residence," is the provision most often relied on in overstay cases. The factors in paragraph (5) are the measuring stick for that item.

The important point is that these are not abstract judgments about character. They are sets of facts that can be confirmed by documents. We take them in turn below.

What should I submit for "the reason I wish to remain in Japan"?

Not a list of feelings, but concrete facts of daily life showing why it has to be Japan.

Start with your own written statement. Set out, in chronological order, when, where, with whom and how you have lived, and keep what you experienced yourself separate from what you heard from others. To that, attach evidence of where you actually live (a lease, records of rent payments, utility receipts), evidence of how you support yourself (pay slips, a certificate of employment or a written statement from an employer willing to keep you on), and evidence of your ties to Japanese society (Japanese-language study records and certificates, participation in local activities, statements from people who support you).

Explain, in specific terms, what would be lost if you had to leave. Do not simply write that it would be difficult. Name the people and the situations, and show whose life would be disrupted and how.

How far do I need to prove "family relationships"?

You need both the formal documents and evidence of how the family actually lives. One without the other is not enough.

Formal documents include the family register (koseki tōhon) where your spouse or child is a Japanese national, a certificate of acceptance of the marriage notification, a certificate of acceptance of the acknowledgement of paternity (ninchi), and a certificate of residence listing every member of the household. Documents from your country of nationality, such as a birth certificate or a certificate of legal capacity to marry, are often required as well.

Evidence of the reality of family life includes proof that you live together, proof that you share household finances (wages coming in matched against rent and living expenses going out, remittance records), photographs and message records showing how the relationship developed, and, where there are children, the maternal and child health handbook, proof of nursery or school enrolment, and records of accompanying them to medical appointments and school events. Written statements in which your spouse, children and relatives describe daily life in their own words also carry weight.

It is not unusual for the authorities of the country of nationality to refuse to issue a required document, or for no such system to exist there. In that situation, the fact that the document cannot be obtained must itself be documented, and substitute proof built up. Our office has handled a case in which marriage and acknowledgement of paternity were completed, and special permission to stay obtained, even though almost no official documents from the country of nationality were available.

What documents are used to assess "conduct"?

Conduct is examined from two sides: compliance with the law, and the fulfilment of ordinary civic obligations.

Gather documents on any criminal disposition (a notice of a decision not to prosecute, a summary order, a certified copy of a judgment), records of traffic violations, resident tax assessment and payment certificates, and records showing payment of national health insurance premiums and pension contributions. If there are arrears, do not leave them. Arranging payment in instalments and keeping the record of that arrangement is one practical response.

Where a case involving a victim is relevant, a settlement agreement, a receipt for compensation paid, and a receipt for an atonement donation are all evidence. Beyond that, set out in writing the environment that will prevent a repetition: a statement from a person willing to act as guarantor, secured housing and employment, and the specific way supervision will be exercised. The idea is not merely to express remorse, but to show that a mechanism to prevent recurrence is already in place.

What do "the circumstances of entry", "the length of stay" and "the legal status during that period" require?

These three amount to drawing a single, continuous timeline. Line up the landing permission seal in your passport, your residence card, and the record of every status of residence and period of stay you have been granted, so that it is clear which day your lawful stay ended and from which day you were beyond your period of stay.

As to entry, the questions are whether any false means were used and whether a broker was improperly involved. Where a student left school, or a technical intern trainee left the accepting organisation, gather material supporting the reason (notice of removal from the register or withdrawal, records of unpaid wages or of treatment at the workplace, correspondence with a consultation body). Whether there was a legitimate reason for leaving can change the assessment.

On length of stay, it is important to understand both sides accurately. A long period of unlawful residence is treated as a negative element under the guidelines. On the other hand, the foundations of life and the family relationships built up during that time may work in your favour as factors under Article 50(5). The point is not to emphasise how long it has been, but to show what that time contained.

Under legal status, set out the type of status held while your stay was lawful, whether permission to engage in activities outside your status was granted, and the history of any detention or supervision measure, including whether the conditions attached were observed.

Why are "the facts constituting the ground for deportation" the single most important item?

Because this item has the greatest effect on the outlook for special permission to stay.

Remaining in Japan beyond the permitted period falls under Article 24, item (iv)(b) of the Immigration Control Act as a ground for deportation. Separately, the proviso to Article 50(1) provides that where the person has been sentenced to a kōkinkei (custodial sentence) for life or for a term exceeding one year (excluding a person given a suspension of execution of the whole sentence, and a person given a partial suspension whose unsuspended portion is one year or less), or falls under Article 24, item (iii)-2, item (iii)-3, item (iv)(c), or items (iv)(e) through (iv)(y), permission may be granted only where there are found to be special circumstances such that refusing residence would lack humanitarian consideration.

A case involving only unlawful residence (Article 24, item (iv)(b)) is not subject to that heightened requirement in the proviso. That is a favourable feature. Conversely, if an unsuspended kōkinkei exceeding one year is imposed, or a conviction under drug-related legislation is added (Article 24, item (iv)(h), which applies even where the sentence is a fine or is suspended), the heightened requirement applies and the outlook becomes considerably more difficult.

What you gather for this item, therefore, is material that fixes exactly which item of Article 24 applies, together with material showing the content of any criminal disposition. And the work of obtaining a lighter criminal disposition is itself the work of improving this item. Criminal defence and immigration procedure must be designed as one from the very first step.

How do I build the case for "the need for humanitarian consideration"?

This is the work of turning the disadvantages of removal from an abstract worry into something that can be confirmed by documents.

If you are receiving medical treatment, gather a medical certificate, a document setting out the course of treatment and the outlook, and material on whether that treatment can be continued in your country of nationality. For children, the relevant material concerns school enrolment, the language they actually use, the level they have reached in their studies, and the fact that the basis of their life is in Japan. Whether a child born and raised in Japan could be educated in the language of the country of nationality needs to be addressed concretely.

Where a family would be separated, state, according to the present division of roles, who supports and cares for whom and what would happen if that were lost. As to general conditions in the country of nationality, rely on material published by public bodies, and do not write, on the basis of guesswork, about circumstances you cannot verify.

Are "domestic and international circumstances" and "the effect on illegal residents" beyond an individual's control?

You cannot move that item itself, but how your case is positioned within it depends on how you present it.

Article 50(5) requires that, in addition to the eight factors, domestic and international circumstances, the effect on illegal residents in Japan, and other matters be considered. The purpose is to look not only at the individual situation but also at the wider effect on comparable cases. That is precisely why you need to explain, with facts, how your case differs from others. Comparing your situation against published examples in which permission was granted and refused, and setting out the points in common and the points of difference, is meaningful work.

The Guidelines on Special Permission to Stay, revised in March 2024 and in force from 10 June 2024, state in the section on "other matters" that the fact that the foreign national reported to a regional immigration services bureau of their own accord in order to declare their unlawful residence is taken into account as a positive element. Voluntary appearance is material that reaches this item directly.

By when do I have to have the evidence ready?

What you can do depends on the stage the procedure has reached. Miss the moment, and you may not be able to apply at all.

Article 50(2) provides that an 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 who has been detained under a written detention order or who has been made subject to a supervision measure decision. The right to apply therefore arises only once detention under a written detention order or a supervision measure decision has occurred. Before that point, the work consists of asking the Minister to exercise the power ex officio.

Article 50(4) provides that special permission may be granted only after the person has accepted the findings under Article 47(3) or the decision under Article 48(8), or after the Minister of Justice has determined that the objection filed is without grounds. And under Article 50(3), no application may be made once a written deportation order has been issued. After that order, the matter moves into the field of judicial relief: an action to revoke the order and an application for a stay of execution.

For that reason, evidence gathering has to run in parallel from the stage at which the violation investigation (Article 27 and following) begins. Documents obtained from your country of nationality take time to arrive. Starting only after the procedure is already moving is often too late.

What does it mean to act before you are caught?

From the standpoint of preparing evidence as well, whether you come forward yourself is a major fork in the road.

To qualify for a departure order under Article 24-3, all five requirements must be met. Item (i)(a) covers a person who, before the commencement of a violation investigation under Article 27, appeared at an immigration services office of their own accord with the intention of leaving Japan promptly. Item (i)(b) covers a person who, after the investigation has begun but before receiving the notice under Article 47(3), states to an immigration inspector or immigration control officer that they intend to leave Japan promptly.

The difference shows up in the period of denial of landing. A person who leaves Japan under a departure order is barred for one year from the date of departure under Article 5(1), item (ix)(e). By contrast, where a person falling under Article 24-3, item (i)(b) leaves under a departure order and then seeks to come to Japan for short-term stay activities, the period is five years from the date of departure under Article 5(1), item (ix)(f). If apprehension means the requirements for a departure order are not met, deportation follows: five years from the date of deportation under Article 5(1), item (ix)(c) where there is no prior history of deportation or departure order, and ten years under item (ix)(d) where such a history exists.

In addition, as noted above, voluntary appearance is treated under the guidelines as a positive element. Beginning to collect documents after being apprehended is not the same as appearing once your materials are in order; both the quality of what you can submit and the way the procedure unfolds will differ. Whether to seek continued residence in Japan, or to leave once and aim to return later, is a decision of strategy that should be made early, after looking at the evidence.

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 on immigration procedures, with a client base centred on Chinese nationals.

In one case we handled, a person who had come to Japan for sightseeing had a child with a Japanese woman, but lost his status of residence and was arrested and prosecuted for unlawful residence. The marriage and acknowledgement of paternity had not been completed, and the authorities initially declined to accept the filings. Mr. Matsumura negotiated with the authorities from a constitutional standpoint, achieved the marriage and the acknowledgement, and conducted the defendant's examination and witness examination with the criminal trial for violation of the Immigration Control Act firmly in view. Even though almost no official documents from the country of nationality existed, favourable material was assembled and past published examples of permission were analysed, and special permission to stay was obtained in a single set 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, we brought proceedings testing the reach of the principle of culpability and pursued them to the appellate stage. Special permission to stay was subsequently granted by the immigration authorities.

As to how we work, Mr. Matsumura handles every stage personally, from the first visit at the detention facility through to the close of trial. We do not delegate the work to clerical staff or junior lawyers. A dedicated Chinese-language interpreter experienced in cases involving foreign nationals is based at the office; for languages other than Chinese, we arrange an interpreter according to the needs of the case. This means you can use an interpreter who acts for you, separate from the interpreter appointed by the investigating authorities. For renewal or change of status of residence after the criminal proceedings end, we work together with an affiliated administrative scrivener so that everything is handled in one place. The first consultation is free of charge, and fees are quoted according to the case.

In closing

The factors in Article 50(5) are, seen from the other side, the State telling you what you need to show. Each item calls for different material, and documents from abroad take time to arrive. The earlier you begin, the more facts you will be able to put forward.

This article is a general explanation. For your own situation, please consult a lawyer directly. Past case results reflect the particular circumstances of those cases and do not guarantee a similar outcome.

Author

Daisuke Matsumura, Attorney at Law

Dai-Ichi Tokyo Bar Association (Registration No. 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.

Case results include an acquittal in a prosecution under the Stimulants Control Act (possession for the purpose of profit), a decision not to prosecute in a specialised 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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