When Your Family Is Back Home: Gathering Documents and Staying in Touch During a Japanese Overstay Case

Many people who have stayed in Japan past the end of their period of stay are here alone. Their parents, spouse, or children are still in their home country. Sometimes contact simply stops one day, and the family abroad has no idea what has happened while the weeks go by. Sometimes it is the other way around: the person in Japan does not want to worry the family at home, and says nothing. Both situations are common in our practice. Yet in the procedure for seeking permission to remain in Japan, the family in the home country is itself an important part of the assessment, and documents obtained from abroad can shape the outcome. This article explains what to gather, in what order, and how to design communication when the family is overseas.

We suddenly cannot reach our relative in Japan. What should the family abroad do first?

Contact a lawyer in Japan first. Whether the person has been arrested by the police or is being detained at an immigration facility, a lawyer can meet with them, confirm their wishes, and relay them to the family. Even if the family cannot travel to Japan, the lawyer can act as their representative and move the case forward. Before that call, it helps to pin down a few facts: the date of the last contact; the area where the person said they were living or working; whether they hold a residence card and when their period of stay expired; and whether they have a spouse, child, or partner in Japan. That information alone is usually enough to decide which authority to approach and how. Travelling to Japan on your own initiative while contact is lost can make matters more complicated, so please discuss whether the trip is necessary before booking it.

What kind of legal problem is overstaying, exactly?

Remaining in Japan beyond the authorized period of stay is not only an administrative matter. It is also a criminal offence. Article 70, paragraph (1), item (v) of the Immigration Control and Refugee Recognition Act (Immigration Control Act) covers a person who remains in Japan beyond the period of stay without obtaining an extension or a change of that period. The statutory penalty set out in the main clause of that paragraph is a kōkinkei (custodial sentence) of up to three years or a fine of up to three million yen, or both. At the same time, Article 24, item (iv)(ro) (sub-item ロ) makes illegal overstay a ground for deportation. Two separate lines therefore run in parallel: the criminal process and the deportation process. This is the point families abroad most often need explained. A light criminal outcome does not by itself allow the person to stay in Japan. Conversely, much of the material that supports staying is in the hands of the family back home.

Which documents need to be obtained from the home country?

The core items are official documents proving family status, together with evidence showing what the family relationship actually looks like in daily life. Under Article 50, paragraph (5) of the Immigration Control Act, the assessment of special permission to stay takes into account the reason the person wishes to remain, family relationships, conduct, the circumstances of entry into Japan, the length of stay in Japan, the legal status held during that time, the facts that gave rise to the ground for deportation, and the need for humanitarian consideration, as well as domestic and international circumstances, the effect on illegal residents in Japan, and other matters. Documents from abroad are the central evidence for family relationships and for humanitarian need.

• Birth records (for the person concerned and for any children)
• Marriage-related records (marriage certificate, certificate of single status, divorce documents)
• Records showing the composition of the household (household register, family relationship certificate, and equivalents, which are named differently in each country)
• Medical certificates on the health or treatment of relatives at home, where humanitarian considerations are involved
• Records of remittances sent home and of calls, messages, and visits, showing that the relationship is real rather than nominal
• Education, employment, and tax records from the home country, where conduct and the stability of daily life are at issue

As a rule these documents are submitted with a Japanese translation. Depending on the country, notarization by a domestic notary office or legalization at the country's embassy or consulate in Japan may also be required. Obtaining, notarizing, legalizing, and translating documents takes a meaningful amount of time, so this work should begin early in the procedure rather than at the moment the documents are asked for.

What happens if the official documents simply cannot be obtained?

The fact that a document does not exist, or cannot realistically be obtained, does not automatically decide the case against you. Our office has handled a matter in which the country of nationality issued almost no official documents at all, and special permission to stay was nevertheless granted. What made that possible was the patient accumulation of substitute evidence: written statements from people who knew the family, photographs and message histories, records held by medical institutions, schools, and employers in Japan, and objective material showing remittances and a shared household. Each item is only a fragment, but together they can show the substance of the relationship. Rather than giving up because a certificate is unavailable, the practical turning point is deciding early what will stand in its place.

Where do the family's circumstances fit into Article 50 of the Immigration Control Act?

Under Article 50, paragraph (1), the Minister of Justice may grant special permission to stay even to a person subject to deportation, on the person's application or on the Minister's own authority, where one of the listed items applies. Those items are: holding permanent residence permission (item (i)); having formerly held a family register in Japan as a Japanese national (item (ii)); residing under the control of another person as a result of trafficking in persons or similar circumstances (item (iii)); having been recognized as a refugee or as a person eligible for complementary protection (item (iv)); and any other case where the Minister of Justice finds circumstances warranting special permission to stay (item (v)). Most overstay cases are decided under item (v), and the family's circumstances are weighed there through the factors listed in Article 50, paragraph (5).

The proviso to Article 50, paragraph (1) also needs to be understood. Where a person has been sentenced to indefinite imprisonment or to a kōkinkei (custodial sentence) exceeding one year, excluding a person given a suspended sentence for the whole of the sentence and a person given a partially suspended sentence whose unsuspended portion is one year or less, and in certain other listed cases, permission may be granted only where the Minister finds special circumstances such that refusing permission to stay would be lacking in humanitarian consideration. A case involving only illegal overstay under Article 24, item (iv)(ro) does not fall within that proviso, which is a favourable feature. The reverse is equally true: an actual custodial sentence exceeding one year brings the heightened requirement into play and makes the outlook considerably harder. That is another reason for the family abroad to move quickly on documents.

Can we communicate with a Japanese lawyer across time zones and languages?

Yes. Our office communicates through channels including WeChat, and works to keep the person in Japan, the family abroad, and the lawyer looking at the same information. Where there is a time difference, we agree on a window for exchanges in advance and send the points requiring confirmation in writing. For Chinese, a dedicated interpreter is present at the office at all times; for other languages, an interpreter is arranged according to the circumstances of the case. Because document names differ from country to country, we usually start by telling the family which fact needs to be proved in the Japanese procedure, and then ask them to look for the corresponding document at home. That order saves a great deal of wasted effort.

By what stage of the procedure do the documents need to be ready?

Deportation proceedings begin with a violation investigation by an immigration control officer (Article 27 and following), followed by detention under a written detention order (Article 39) or a decision on supervision measures (Article 44-2, paragraph (7)), then a violation examination by an immigration inspector (Article 45 and following) and a finding (Article 47, paragraph (3)). A person who disagrees may request a hearing (Article 48) and receive a determination from a special inquiry officer (Article 48, paragraph (8)); if still dissatisfied, the person may file an objection with the Minister of Justice (Article 49). At the decision on that objection, the case turns either on special permission to stay (Article 50) or on the issuance of a deportation order (Article 51).

Two provisions set the clock. First, Article 50, paragraph (2) provides that an application for special permission to stay is made by a foreign national detained under a written detention order or subject to a decision on supervision measures. Only from that point can a formal application be made; before it, the work consists of asking the authorities to act on their own initiative. Second, Article 50, paragraph (3) provides that no application may be made once a deportation order has been issued. After issuance, the matter moves into judicial remedies, namely an action to revoke the disposition and an application for a stay of execution. The longer a home-country document takes to obtain, the more it must be planned backwards from this timeline. Article 50, paragraph (10) also requires that, where special permission to stay is refused, the person must promptly be notified in writing with a statement of reasons, so even a refusal gives a documented starting point for the next step.

Why acting before enforcement action matters

Families abroad often ask whether they should encourage their relative in Japan to go to the immigration office voluntarily. There is a concrete legal reason behind the question.

The departure order system under Article 24-3 of the Immigration Control Act allows a person falling under illegal overstay (Article 24, item (iv)(ro)) and certain other grounds to leave Japan without detention, provided that all five requirements are met. The first requirement is that the person either appeared voluntarily at an immigration office, before the start of a violation investigation under Article 27, with the intention of leaving Japan promptly (item (i)(i) (sub-item イ)), or, after the investigation had begun but before receiving the notice under Article 47, paragraph (3), stated to an immigration inspector or immigration control officer an intention to leave Japan promptly (item (i)(ro) (sub-item ロ)). In addition, the person must not fall under Article 24, items (iii) through (iii)-5, item (iv)(ha) through (iv)(yo), item (viii) or item (ix) (item (ii)); must not, after entering Japan, have been sentenced to a kōkinkei (custodial sentence) for offences of breaking into a residence, counterfeiting of currency, documents, securities or electromagnetic records of payment cards, gambling, homicide, injury, unlawful capture and confinement, kidnapping and abduction, theft and robbery, fraud and extortion, or stolen property, or under Articles 1, 1-2 and 1-3 of the Act on Punishment of Physical Violence, the Act for Prevention of Larceny, Articles 15 and 16 of the Act on Prohibition of Possession of Special Picking Tools, Article 2 or Article 6, paragraph (1) of the Act on Punishment of Acts Causing Death or Injury by Driving a Motor Vehicle, or Article 22 of the Act on Prevention of Disposal of Stolen Specified Metal Products (item (iii)); must never previously have been deported from Japan or have departed under a departure order (item (iv)); and must be reasonably expected to leave Japan promptly (item (v)). When a departure order is issued, the supervising immigration inspector sets a departure deadline of no more than fifteen days (Article 55-85, paragraph (1)).

The period before the person may return to Japan then differs sharply. A person who leaves under a departure order is in principle denied landing for one year from the date of departure (Article 5, paragraph (1), item (ix)(ho)). By contrast, a person who expressed the intention to leave only after the violation investigation had begun (Article 24-3, item (i)(ro)), and who then seeks to enter Japan for short-term stay activities, is denied landing for five years from the date of departure (Article 5, paragraph (1), item (ix)(he)). If enforcement action means the departure order requirements are not met, the case proceeds as a deportation: five years from the date of deportation for a person with no previous deportation or departure order (Article 5, paragraph (1), item (ix)(ha)), and ten years for a person who already has such a history (item (ix)(ni)). Where deportation is based on Article 24, item (iv)(o) through (iv)(yo), no fixed period applies (Article 5, paragraph (1), item (x)). The Guidelines on Special Permission to Stay, revised in March 2024 and in force from 10 June 2024, expressly treat the fact that the foreign national appeared voluntarily at a regional immigration office in order to report their illegal residence as a positive factor, while a long period of illegal residence is treated as a negative factor. For a family abroad, that means waiting tends to make things worse. Even so, whether and when to appear must be assessed case by case. Please consult a lawyer before encouraging a relative to go in.

About our office

Funado International Law Office (Fuse Building Main Wing 3F, 3-4-10 Takada, Toshima-ku, Tokyo) focuses on criminal defence for foreign nationals and on immigration procedures, with a client base centred on Chinese nationals. Daisuke Matsumura, attorney at law (Dai-ichi Tokyo Bar Association, registration number 59077, admitted in 2019), handles every stage personally, from the first detention visit through to the close of trial, without delegating the work to clerks or junior lawyers. Communication with the family abroad is likewise conducted by the lawyer himself, on the basis of the full case record.

For Chinese, a dedicated interpreter experienced in cases involving foreign nationals is present at the office at all times, so clients can use an interpreter who works for them rather than one designated by the investigating authorities. For other languages, an interpreter is arranged according to the circumstances of the case. Checking documents sent from abroad and explaining matters to relatives are handled within the same structure. After the criminal process ends, renewals and changes of status of residence are handled on a one-stop basis together with a partner administrative scrivener.

Two related matters may be of interest. In the first, 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 residence. The marriage and acknowledgement of paternity had not yet been completed, and the authorities initially refused to accept the filings. Mr Matsumura negotiated with the authorities from a constitutional standpoint, secured the marriage and the acknowledgement, and conducted the examination of the defendant and of witnesses with the immigration criminal trial firmly in view. Even though the country of nationality issued almost no official documents, favourable evidence was assembled, and by analysing past cases in which the immigration authorities had granted permission, special permission to stay was obtained in a single set of proceedings. In the second, 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, our office brought proceedings testing the reach of the principle of culpability and litigated through 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 each case.

In closing

When the family is in the home country, the Japanese procedure and the collection of documents abroad run at the same time. Obtaining, notarizing, legalizing, and translating all take time, and once a deportation order is issued, an application for special permission to stay can no longer be made at all (Article 50, paragraph (3) of the Immigration Control Act). That is why it is essential to decide first what needs to be proved, and then work backwards from there. This article is a general explanation; for an individual case, please consult a lawyer directly. The past matters described here rest on their own particular facts and are not a guarantee of a similar outcome.

Author

Daisuke Matsumura, Attorney at Law

Dai-ichi Tokyo Bar Association (registration number: 59077; admitted 2019)

Funado International Law Office (Fuse Building Main Wing 3F, 3-4-10 Takada, Toshima-ku, Tokyo)

Focuses 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 decision not to prosecute in a specialized fraud case, and the grant of special permission to stay in matters regarded as difficult.

Contact

Funado International Law Office

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

WeChat ID: matsumura1119

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