Analyzing Japan's Published Special Permission to Stay Cases: How to Locate Your Own Situation

People living in Japan after their period of stay has expired often ask us a single question: will special permission to stay (zairyu tokubetsu kyoka) be granted in my case. Whenever we face that question, there is one piece of work we always do. We read through the special permission cases published by the Immigration Services Agency of Japan and use them to gauge where the client's situation sits among them. This article explains how that method works, and where its limits lie.

What are the special permission cases published by the Immigration Services Agency

Alongside its Guidelines on Special Permission to Stay, the Immigration Services Agency publishes examples of cases in which permission was granted and cases in which it was refused. The Guidelines were revised in March 2024 (Reiwa 6) and have applied since 10 June 2024, in step with the amended Immigration Control and Refugee Recognition Act (the Immigration Control Act).

The published cases are written in abstract terms so that individuals cannot be identified. Even so, each sets out, in a consistent format, the nature of the violation, the length of stay in Japan and of the unlawful period, family relationships, conduct, and how the situation came to light. Those elements correspond to the matters that Article 50, paragraph (5) of the Immigration Control Act requires to be considered, and they are one of the few indications of how much weight the authorities have in practice given to each statutory factor.

What can you actually learn from reading the published cases

What you learn is not any single circumstance on its own, but the combination of circumstances. Article 50, paragraph (5) lists the reasons for wishing to remain, 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. It further requires consideration of domestic and international circumstances, the effect on unlawful residents in Japan, and other matters. The provision simply lists these side by side; it says nothing about which outweighs which.

The Guidelines state expressly that the fact that the foreign national "voluntarily appeared at a regional immigration services bureau in order to report their unlawful residence" is treated as a positive factor, while prolonged unlawful residence is assessed as a negative factor. The published cases show, in concrete form, how those factors have operated in actual decisions.

What are the limits of this method

There are two. First, because the descriptions are abstracted, the fine details that must have driven each decision are not written down. Two cases that look alike may well differ in what was left unwritten.

Second, under the Guidelines, special permission to stay is positioned as an exceptional and discretionary measure extended to a foreign national who is otherwise subject to deportation. The fact that similar permission was granted in the past does not guarantee that permission will be granted again. What we can properly say is limited to this: permission has been granted in cases whose essential circumstances are close to yours, and the positive factors present in those cases are also present here.

How do you find published cases close to your own

Set the axes of comparison first, then search. Rather than looking for cases with the same offence name or the same status of residence, break your own situation down along the following axes and gather comparable cases axis by axis.

• Which ground for deportation applies. Simple overstaying falls under Article 24, item (iv)(b) of the Immigration Control Act. Whether other grounds are also present, such as exclusively engaging in unauthorised activities under Article 24, item (iv)(a), changes the weight of the case.
• The criminal disposition. The proviso to Article 50, paragraph (1) provides that, for a person sentenced to kōkinkei (custodial sentence) for life or for a term exceeding one year and certain other persons, permission may be granted only where there are special circumstances such that refusing to allow the person to remain would be found to lack humanitarian consideration. A person given a full suspension of execution of the sentence is excluded. A case involving overstaying alone (Article 24, item (iv)(b)) does not fall under this heightened requirement, which is an important point in your favour.
• The length of residence and of the unlawful period. This cuts both ways: it shows an established life in Japan, and it also constitutes the negative factor of prolonged unlawful residence.
• Family relationships. The nationality and residence status of a spouse and children, and the actual situation of living together and of care and support.
• The circumstances of entry into Japan and the legal status held since.
• Conduct. Beyond any criminal record, this includes payment of taxes and social insurance contributions.
• How the situation came to light. Whether the person voluntarily appeared, or was detected in an enforcement operation.

Broken down this way, the broad heading of "overstaying cases" separates into narrower types. Only once you know which type your situation resembles can you narrow down the cases worth citing.

Can you argue that similar cases were granted while yours was refused

Yes, that argument carries weight. Even where an administrative authority is given broad discretion, it may not treat comparable cases differently without a rational reason, and the equality under the law guaranteed by Article 14, paragraph (1) of the Constitution of Japan operates when the propriety of an administrative decision is reviewed. The argument cannot, however, be built on a claim of complete identity, which the abstracted published cases can never prove. It is built instead on similarity of essential circumstances: setting out the points held in common, then showing that the differences are not such as to justify a different outcome.

The argument gains force when combined with the statement of reasons required by Article 50, paragraph (10) of the Immigration Control Act, which provides that where a disposition refusing special permission to stay is made, the person must promptly be informed in writing with reasons attached. If those reasons do not explain what distinguishes the case from comparable cases in which permission was granted, that gap can be put squarely in issue at the next stage.

Where does this analysis go in a written submission

We usually set out headings in the order of the factors listed in Article 50, paragraph (5), and place the comparison with the published cases at the end of each heading. Under "family relationships", for example, we first prove the family relationships with evidence, then state that permission has been granted in cases where comparable family relationships were found and that the present case shares their essential circumstances. When citing a case, always identify the year of publication, the category, and the source. Negative factors are addressed head-on, with an explanation of why the other positive factors outweigh them here.

Why it matters to act before an enforcement operation finds you

Analyzing the published cases brings one point home every time: how the situation came to light largely determines the range of options that remain afterwards. Article 24-3 of the Immigration Control Act sets out the requirements for a departure order. Item (i)(a) covers a person who, before the commencement of a violation investigation under Article 27, voluntarily appeared at an immigration services office 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, paragraph (3), expressed to an immigration inspector or immigration control officer the intention of leaving Japan promptly. The further requirements include never having been deported or having left Japan under a previous departure order, and being reasonably expected to leave Japan promptly.

That difference carries straight through to the period of denial of landing. A person who leaves Japan under a departure order is subject to one year from the date of departure under Article 5, paragraph (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 to engage in the activities of a temporary visitor, the period is five years under item (ix)(f) of the same paragraph. If detection means the requirements for a departure order cannot be met, deportation follows: five years under item (ix)(c) for a person with no prior deportation history, and ten years under item (ix)(d) for a person who has already been deported or has left under a departure order. In addition, voluntary appearance is expressly identified in the Guidelines as a positive factor in the special permission decision.

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, with a client base centred on Chinese nationals. Daisuke Matsumura, the attorney in charge, is a member of the Daiichi Tokyo Bar Association (registration number 59077, admitted 2019).

Special permission to stay obtained in a single set of proceedings in a case regarded as difficult. The client had entered Japan for tourism and had a child with a Japanese woman, but lost his status of residence and was arrested and prosecuted for unlawful residence. We negotiated with the authorities so that the marriage and acknowledgment of paternity could be completed, gathered favourable evidence despite the near-absence of official documents, and analysed past cases in which permission had been granted. Special permission to stay was obtained. That case is where the method described in this article was actually used.

A woman facing deportation over facilitation of unlawful employment. She had been wrongly accused of facilitating unlawful employment. 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 litigated through 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 to the close of trial, without delegating to clerks or junior lawyers. A dedicated Chinese-language interpreter experienced in cases involving foreign nationals is based at the office; for other languages we arrange an interpreter according to the needs of the case. This means you can use an interpreter working for you, separate from the interpreter appointed by the investigating authorities. Renewals and changes of status of residence after the criminal process are handled on a one-stop basis with an affiliated administrative scrivener. The first consultation is free of charge, and fees are quoted according to the case.

In closing

Analyzing the published cases is patient work: learning what the decision-maker looks at, measuring where your own situation sits, and filling in the missing positive factors with evidence. Whether that work can be started while options still remain makes a great difference, because under Article 50, paragraph (3) of the Immigration Control Act no application for special permission to stay can be made once a written deportation order has been issued.

This article is a general explanation. Please consult a lawyer directly about your individual case. Past outcomes rest on the particular circumstances of those cases and are not a guarantee of a similar result.

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, with a client base centred on Chinese nationals.

Outcomes include an acquittal in a case under the Stimulants Control Act (possession for the purpose of profit), a decision not to prosecute 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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