Consulting a Lawyer About Overstaying in Japan: From First Consultation to Formal Engagement

People who are living in Japan after their period of stay has expired often begin the conversation the same way: they want advice, but they are afraid that telling a lawyer will lead straight to the Immigration Services Agency. That is not what happens in a consultation. What does happen, reliably, is that time spent without understanding your legal position closes off the options that are still open to you. This article walks through what takes place from the moment you contact us, through deciding on a strategy, to formally engaging counsel, including how consultations in Chinese work and how we communicate with family members back home.

If I talk to a lawyer, will I be reported to immigration

No. A lawyer is bound by a legal duty of confidentiality and will not pass on what you say to investigative authorities or to the Immigration Services Agency without your consent. The fact that you consulted a lawyer will not itself count against you later. A consultation is not the moment when you must decide whether to turn yourself in. It is where you find out which options remain available to you as things stand.

Remaining in Japan beyond your authorised period of stay falls under Article 70, paragraph (1), item (v) of the Immigration Control and Refugee Recognition Act (the Immigration Control Act), which carries a statutory penalty of kōkinkei (custodial sentence) of up to three years or a fine of up to three million yen, or both. At the same time, the same situation is a ground for deportation under Article 24, item (iv)(b). Two tracks, criminal and administrative, run at once, so no conclusion can be drawn by looking at only one of them. Mapping both is what the first consultation is for.

What will I be asked at the first consultation

Broadly, five things. Each of them corresponds to a legal fork in the road.

• The date your period of stay expired and what has happened since. The length of the overstay is the central factor shaping the severity of any criminal disposition, and it bears on the period of residence in Japan and the legal status held during it, both listed in Article 50, paragraph (5).
• Whether you have ever been deported or have departed under a departure order. If you have, you do not satisfy Article 24-3, item (iv), and the departure order system is unavailable to you altogether.
• Whether you have any criminal disposition, and for what offence and sentence. Article 24-3, item (iii) requires that you have not been sentenced to kōkinkei for certain offences, including breaking into a residence, counterfeiting of currency, documents or securities, gambling, homicide, injury, unlawful capture and confinement, kidnapping and abduction, theft and robbery, fraud and extortion, and offences relating to stolen property.
• The reality of your life in Japan. Your family members' residence status, marriage and children, housing, income, tax payments, local ties. These map onto matters listed in Article 50, paragraph (5), such as family relationships, conduct, and the need for humanitarian consideration.
• What you would lose if you returned home. Your children's schooling, ongoing medical treatment, conditions in your home country. This is the substance of your reason for wishing to remain.

Once we have this much, it is usually possible to give you an assessment on the spot of which route is realistic: reporting yourself with a view to a departure order, seeking special permission to stay, or proceeding alongside a criminal case.

What should I prepare before the consultation

Bring whatever you already have. Your passport, residence card, documents showing your previous residence status, marriage or birth records, a lease for your home, pay records, evidence of tax and insurance payments. If you have children, school or nursery documents are also useful.

Many people have lost their passport or hold an expired one. That is not a reason to postpone a consultation. Reissuing a passport usually requires dealings with your embassy or consulate and takes time, which is precisely why it should be started early. Even where almost no official documents from your country of nationality can be obtained, there are ways to prove the reality of your life in Japan from other materials.

Can I have the consultation in Chinese

Yes. Our office has a dedicated in-house Chinese interpreter experienced in cases involving foreign nationals, so you can speak in your own language from the consultation stage onwards. For languages other than Chinese, we arrange an interpreter according to the circumstances of the case.

This is not merely a matter of convenience. In overstay cases, the outcome turns on explanations that carry nuance: why the period of stay was allowed to lapse, how you have lived since, what your family relationships actually are. Interpreters provided by investigative authorities or by immigration are there to move the procedure forward. Securing, from the outset, an interpreter working for you, so that what you mean is rendered accurately into Japanese, has real substance to it.

How does the process work from consultation to formal engagement

In outline: we hear the facts, explain our legal assessment, set out the options, agree on a strategy, and then conclude a retainer agreement.

When setting out the options, we explain not only what each route involves but also when you could next realistically come to Japan. For example, a person who reports voluntarily to an immigration office before the violation investigation under Article 27 has begun falls under Article 24-3, item (i)(a), while a person who expresses an intention to depart after that investigation has begun but before receiving the notice under Article 47, paragraph (3) falls under item (i)(b). The subsequent period of denial of landing differs accordingly. We place weight on the client and the family deciding the strategy with a full understanding of these consequences.

As to costs, the first consultation is free of charge. If you decide to instruct us, we provide a quotation based on the content of the case and the range of procedures expected, and we begin work only after you have agreed to it. You are not asked to sign anything on the day of the consultation.

If the person has already been arrested or detained, can a lawyer meet them

Yes. Whether the person is held at a police station or detained in an immigration facility, a lawyer can meet them and discuss strategy directly. Many cases begin with an approach from a family member.

At this stage the criminal proceedings and the deportation procedure run in parallel. Even if the criminal disposition turns out to be light, the deportation procedure continues, because Article 24, item (iv)(b) still applies. Conversely, the criminal outcome feeds back into the immigration decision. Where a person has been sentenced to kōkinkei for an indefinite term or for a term exceeding one year, the proviso to Article 50, paragraph (1) restricts special permission to stay to cases where there are found to be special circumstances such that refusing permission would be lacking in humanitarian consideration. Those given a full suspension of execution of the sentence are excluded from that proviso. This is why the criminal defence and the residence strategy must be designed as one from the very first steps.

How do you communicate with family in my home country

We correspond through WeChat. Where a family member abroad acts as the point of contact, both the time difference and language are obstacles, so we fix the method of contact and the person responsible at the outset.

Some documents can only be obtained from your home country. Official certificates of birth or marriage, and documents establishing family relationships, can take time to secure, and arrangements have to run in parallel with the procedure itself. We first clarify which document supports which argument, then ask the family to obtain them in order of priority.

Why acting before being detected matters

There are concrete legal reasons for consulting early. A person who, before the violation investigation under Article 27 begins, reports voluntarily to an immigration office with the intention of departing promptly falls under Article 24-3, item (i)(a). If all five requirements of that Article are satisfied, that person may be subject to a departure order, and for someone who leaves under a departure order the period of denial of landing is one year from the date of departure under Article 5, paragraph (1), item (ix)(e).

By contrast, a person who expresses an intention to depart only after the violation investigation has begun falls under Article 24-3, item (i)(b). Even if a departure order is still issued, if that person subsequently seeks to engage in activities as a temporary visitor, the period of denial of landing is five years from the date of departure under Article 5, paragraph (1), item (ix)(f). Further, if detection means the other requirements of Article 24-3 are not met, a departure order is unavailable and deportation follows: five years from the date of deportation under Article 5, paragraph (1), item (ix)(c), or ten years under item (ix)(d) where there is a previous deportation or departure order.

The same logic applies to special permission to stay. The Guidelines on Special Permission to Stay, revised in March 2024 and in force from 10 June 2024, expressly state that reporting voluntarily to a regional immigration office in order to declare one's unlawful residence is considered a positive factor. Prolonged unlawful residence, on the other hand, is assessed as a negative factor. While you wait, favourable circumstances quietly diminish and unfavourable ones accumulate.

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 immigration procedures, with a client base centred on Chinese nationals. Daisuke Matsumura, attorney at law and a member of the Daiichi Tokyo Bar Association, handles every stage personally, from the first detention visit through to the close of trial, without delegating to clerks or junior lawyers. What you tell him at the consultation is what goes into the written submissions and the argument in court.

A dedicated in-house Chinese interpreter experienced in cases involving foreign nationals is available, so that you can rely on an interpreter working for you rather than only on the one assigned by the authorities. For languages other than Chinese, an interpreter is arranged according to the case. Renewal or change of residence status after the criminal proceedings conclude is handled together with an affiliated administrative scrivener as a single service.

Two examples. In one, a client who had entered as a tourist had a child with a Japanese woman, lost his residence status and was prosecuted for unlawful residence. Marriage and acknowledgment of paternity were incomplete and the filings were initially refused; negotiating on constitutional grounds we completed both, gathered favourable evidence despite almost no official documents being available from the country of nationality, and analysed past grant cases, obtaining special permission to stay in a single round of proceedings.

In another, 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 litigation testing the reach of the principle of culpability and pursued it to the appellate stage. Special permission to stay was subsequently granted by the immigration authorities.

Closing

In overstay cases, when you seek advice changes which procedures remain open to you. Consulting a lawyer does not mean deciding anything that same day. Start by finding out where your case sits in law.

This article is a general explanation. For your own case, please consult a lawyer directly. The past results described here rest on the particular circumstances of those cases and are not a guarantee of 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, with a client base centred on Chinese nationals.

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 grants of special permission to stay in cases regarded as difficult.

Contact

Funado International Law Office

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

WeChat ID: matsumura1119

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