Overstaying in Japan: Why a Non-Prosecution Decision Matters for Special Permission to Stay

If you have stayed in Japan past the expiry of your period of stay, there may come a day when the police contact you, or when you decide to report yourself to the immigration authorities. From that point, two sets of proceedings often start moving at once: a criminal case and an immigration case. People frequently ask whether the immigration side will resolve itself once the criminal case is over. It will not. These are two separate tracks running in parallel, and they influence each other strongly. If you act with only one of them in view, a result you win on one side can turn into a disadvantage on the other. This article explains how the severity of the criminal disposition feeds directly into the framework for special permission to stay, and why the two must be designed together from the first step.

If my criminal case ends in a non-prosecution decision, can I stay in Japan

No. A non-prosecution decision (fukiso shobun) is a prosecutor's decision not to pursue criminal liability. It does not restore a status of residence that has already been lost. Remaining in Japan after your period of stay has expired is itself a ground for deportation under Article 24, item (iv)(b) of the Immigration Control and Refugee Recognition Act (the Immigration Control Act). Whatever happens on the criminal side, that fact does not disappear.

So the immigration process continues on its own track: a violation investigation (Article 27 and following), detention under a written detention order (Article 39) or a supervision measure decision (Article 44-2, paragraph (7)), a violation examination by an immigration inspector (Article 45 and following) and a finding (Article 47, paragraph (3)); if you disagree, a request for a hearing (Article 48) and a determination by a special inquiry officer (Article 48, paragraph (8)); and if you still disagree, an objection to the Minister of Justice (Article 49). Only then is it decided whether special permission to stay is granted (Article 50) or a written deportation order issued (Article 51). The criminal outcome does not decide the immigration outcome, and precisely because it does not, what you do at the criminal stage shows up later.

Then why aim for a non-prosecution decision at all

Because the severity of the criminal disposition changes the framework in which special permission to stay is judged. There are four reasons.

• To avoid the heightened requirement in the proviso to Article 50, paragraph (1). Where a person has been sentenced to life imprisonment or to a kōkinkei (custodial sentence) exceeding one year, permission may be granted only where there are special circumstances such that refusing it would be lacking in humanitarian consideration. The bar rises by a full step.
• Because Article 50, paragraph (5) expressly lists conduct as a factor. That paragraph requires consideration of the reason for wishing to stay, family relationships, conduct, the circumstances of entry into Japan, the length of stay and the legal status held during that time, the facts giving rise to 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.
• Because the longer physical custody lasts, the less time and fewer means you have to assemble materials. While your liberty is restricted you cannot yourself obtain public documents from your home country or prove family relationships.
• Because the criminal disposition is written into the requirements for a departure order. Article 24-3 requires that the person has not been sentenced to a kōkinkei for certain offences, including breaking into a residence, counterfeiting of currency, documents, securities or payment cards, gambling, homicide, injury, unlawful capture and confinement, kidnapping and abduction, theft and robbery, fraud and extortion, and offences relating to stolen property.

If I receive a suspended sentence, am I safe from deportation

No. This is the most common misunderstanding. Article 24, item (iv)(i) treats a person sentenced to life imprisonment or to a kōkinkei exceeding one year as subject to deportation, but expressly excludes a person whose sentence is suspended in whole, and a person given a partially suspended sentence where the unsuspended portion is one year or less. So a sentence of one year and six months suspended for three years for overstaying does not fall within item (iv)(i).

That does not end the deportation process, because a person who has overstayed already falls within a ground for deportation from the outset under Article 24, item (iv)(b). The real significance of a suspended sentence is not that it removes the ground for deportation, but that it keeps you outside the heightened requirement in the proviso to Article 50, paragraph (1). Drug offences are handled differently: Article 24, item (iv)(h) makes a guilty judgment under drug-related legislation a ground for deportation even where the penalty is a fine or the sentence is suspended, and the denial of landing under Article 5, paragraph (1), item (v) carries no fixed period.

How does an unsuspended prison sentence change the outlook

Where the sentence is life imprisonment or an unsuspended kōkinkei exceeding one year, the proviso to Article 50, paragraph (1) applies, and permission may be granted only where there are special circumstances such that refusing it would be lacking in humanitarian consideration. This is no longer an ordinary weighing of the listed factors; a materially higher level of explanation is required.

Seen from the other direction, a case involving only overstaying (Article 24, item (iv)(b)) is not subject to that heightened requirement, which in practice is a significant point in your favour. Permission is then examined under Article 50, paragraph (1), item (v), covering cases where the Minister of Justice finds other circumstances warranting special permission to stay, and the work consists of filling in each factor in Article 50, paragraph (5) with evidence. The goal of criminal defence therefore cannot stop at guilt or innocence. Non-prosecution comes first; if that is out of reach, a fine or a fully suspended sentence; and even where an unsuspended sentence is unavoidable, the ceiling on the term must be kept in view, because the one-year line is the very line that divides the immigration framework.

Where exactly do the criminal and immigration processes connect

There are several connection points. The first is the content of the written statements taken during the investigation. What you say about how you came to stay, whether you worked, your family relationships, and whether you intend to return home is treated as background material later in the immigration process. A single sentence signed in an interview room without being fully checked through an interpreter can survive as an unfavourable fact.

The second is when the right to apply arises. Article 50, paragraph (2) provides that an application for special permission to stay is made by a foreign national who has been detained under a written detention order or made subject to a supervision measure decision. Before that stage, you are not filing an application but asking the authorities to act on their own authority.

The third is timing. Article 50, paragraph (3) provides that no application may be made once a written deportation order has been issued, and Article 50, paragraph (4) provides that 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 of Justice has ruled the objection to be without grounds. The window opens only within a limited period; once a deportation order is issued the matter moves into judicial remedies, namely an action for revocation and an application for a stay of execution. The criminal custody process is still running while the immigration deadlines move ahead, and reading that gap correctly is the single most important practical point.

What does designing the two together actually involve

It means building the following work so that each piece serves both sides at once.

• Fix the order of objectives first. Non-prosecution as the primary goal; a fine or a fully suspended sentence as the next best; and, if an unsuspended sentence cannot be avoided, a conscious focus on keeping the term within one year.
• Design the statements and secure interpretation. Work on the assumption that what is said in the interview room becomes immigration material. That is the point of having an interpreter who acts for you, separate from the interpreter arranged by the investigating authorities.
• Collect evidence that serves two purposes. Proof of marriage and parent-child relationships, materials showing your actual life in Japan, and public documents from your home country work both as mitigation in the criminal case and as support for family relationships, length of stay and humanitarian need under Article 50, paragraph (5).
• Put the chronology on a single page. Entry, loss of status of residence, length of stay, whether you worked, the formation of your family, and how you came to report yourself or be detected, set out in a form that is not in dispute.
• Plan the next step in case of refusal. Article 50, paragraph (10) provides that where permission is refused, notice must be given promptly in writing with reasons attached. Because the reasons must be stated in writing, they become the starting point for the next round of argument.

What difference does it make to come forward before being detected

Viewed through the lens of integrated design, reporting yourself matters twice over. First, on the criminal side. Under Article 70, paragraph (1), item (v) and the main clause of that paragraph, the statutory penalty for overstaying is the same regardless of how long the overstay lasted: a kōkinkei of up to three years or a fine of up to three million yen, or both. The statutory penalty is uniform; what varies is the prosecutor's choice of disposition and the sentencing range. The longer the stay, and the more it is accompanied by unauthorised work or other violations, the heavier the direction tends to be; where the period is relatively short, the person came forward voluntarily, and the basis of life and family relationships are clear, the direction tends to be lighter. This is a tendency only, and outcomes vary considerably from case to case.

Second, on the immigration side. The Guidelines on Special Permission to Stay (revised in March 2024, in force from 10 June 2024) treat special permission to stay as an exceptional and discretionary measure for foreign nationals who are otherwise to be deported, and expressly state that coming forward to a regional immigration services office in order to report one's own illegal residence is taken into account as a positive factor. Conversely, a long period of illegal residence is assessed as a negative factor.

The difference also shows if you choose to leave. Article 24-3 distinguishes between a person who, before a violation investigation has begun, comes forward at an immigration services office of their own accord intending to leave Japan promptly (item (i)(a)), and a person who states such an intention after the investigation has begun but before receiving the notice under Article 47, paragraph (3) (item (i)(b)). Further requirements include never having been deported or having left under a departure order before, and being reliably expected to leave promptly. Where a departure order is issued, the supervising immigration inspector sets a departure deadline not exceeding fifteen days (Article 55-85, paragraph (1)).

That difference is reflected in how soon you may return. A person who leaves under a departure order is denied landing for one year from departure (Article 5, paragraph (1), item (ix)(e)), but a person falling under Article 24-3, item (i)(b) who leaves under a departure order and then seeks to engage in activities as a temporary visitor faces five years (item (ix)(f)). Where a person is detected, fails the requirements and is deported, the period is five years with no earlier deportation or departure order (item (ix)(c)) and ten years if there is one (item (ix)(d)).

About our office

Funado International Law Office (3rd Floor, Fuse Building Main Wing, 3-4-10 Takada, Toshima-ku, Tokyo) focuses on criminal defence for foreign nationals and on 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; the work is not delegated to clerks or junior lawyers. Having the criminal defence strategy and the immigration argument drawn up by the same lawyer on a single plan is exactly what the integrated design described here requires. 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 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.

• Special permission to stay obtained in a single round 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 illegal residence. The marriage and acknowledgment of paternity were incomplete and initially not accepted by the authorities. Negotiating from a constitutional standpoint, we brought the marriage and acknowledgment into effect and conducted the defendant questioning and witness examination with the criminal trial in mind. Despite the near-total absence of public documents, favourable evidence was gathered, and by analysing past cases in which permission had been granted, special permission to stay was obtained in a single round.
• Relief for a woman facing deportation over facilitation of unauthorised work. The client was wrongly accused of facilitating unauthorised 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.

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 respond to enquiries from family members in the home country.

Closing

How severe the criminal disposition is, and whether you can continue to live in Japan, are two different questions. But different is not the same as unconnected. The single question of whether the sentence is an unsuspended term exceeding one year divides the framework for special permission to stay, through the proviso to Article 50, paragraph (1). That is why the work of reducing the criminal disposition and the work of obtaining special permission to stay must be designed together from the first step.

This article is a general explanation. For your own case, please consult a lawyer directly. Past results reflect the particular circumstances of each case 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 (3rd Floor, 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.

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 obtained in a case regarded as difficult.

Contact

Funado International Law Office

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

WeChat ID: matsumura1119

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