What Two Difficult Special Permission to Stay Cases in Japan Actually Teach Us

People who are living in Japan after their period of stay has expired often begin a consultation the same way: "In my situation, there is probably no chance." They have a child with a Japanese partner but the marriage paperwork was never completed. Their home country cannot issue the documents the authorities ask for. Some have already been arrested and prosecuted. When those facts stack up, "special permission to stay" (在留特別許可, zairyū tokubetsu kyoka) can feel like something that belongs to other people. Yet permission has been granted in cases that were considered very difficult. This article looks at two matters handled by our office, explains what was actually done in each, and identifies the parts of that approach that can be applied to other cases.

When is special permission to stay available, and when can it be applied for?

The law is written as an exception rather than an entitlement, and the point at which an application can be filed is fixed by statute. Article 50, paragraph (1) of the Immigration Control and Refugee Recognition Act (the "Immigration Control Act") provides that even where a person falls within the categories subject to deportation, the Minister of Justice may, upon application by the foreign national or on the Minister's own authority, grant special permission to stay if one of the listed items applies. Most overstay cases turn on item (v): "where the Minister of Justice finds other grounds for specially permitting residence." The Guidelines on Special Permission to Stay, revised in March 2024 and in force from 10 June 2024, describe the measure as one taken "exceptionally and as a matter of grace" toward a foreign national who would otherwise be deported.

That said, Article 50, paragraph (5) lists the matters that must be taken into account: the reasons for wishing 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 giving rise to deportation, and the need for humanitarian consideration, together with domestic and international circumstances, the effect on illegal residents in Japan, and other factors. Because the statute itself lists these factors, building evidence toward each of them is meaningful work rather than guesswork.

As to timing, Article 50, paragraph (2) provides that an application may be made by a foreign national detained under a written detention order, or by one subject to a supervision measure decision; before that stage, the work is not the exercise of an application right but an effort to have the authorities act on their own initiative. Paragraph (4) provides that special permission may be granted only after the person has accepted the finding of an immigration inspector (Article 47, paragraph (3)) or the determination of a special inquiry officer (Article 48, paragraph (8)), or after the Minister of Justice has ruled that the objection is without grounds. Under paragraph (3), no application can be made once a written deportation order has been issued; from that point relief moves into the judicial sphere, through a suit to revoke the disposition and an application for a stay of execution. Where permission is refused, paragraph (10) requires prompt written notice with reasons attached, and those reasons are the starting point for planning the next step.

What was actually done in Case D-1?

Two tracks were run at the same time: fixing the family relationship in legal form, and building the evidentiary record inside the criminal trial. The client in that matter had entered Japan for tourism, later had a child with a Japanese woman, lost his status of residence, and was arrested and prosecuted for unlawful residence. Neither the marriage nor the acknowledgment of paternity (認知, ninchi) had been completed, and the filings had once been refused by the authorities. Attorney Matsumura negotiated with the authorities from a constitutional standpoint, and the marriage and the acknowledgment were completed. In the criminal trial for violation of the Immigration Control Act, the questioning of the defendant and the examination of witnesses were designed with the later immigration proceedings in mind. Although the country of nationality issued almost no official documents, substitute evidence favourable to the client was gathered, past cases published by the immigration authorities were analysed, and special permission to stay was obtained in a single round of proceedings.

Three transferable points come out of this. First, a family relationship that merely exists as a fact is not enough; it has to be turned into legal form through a marriage registration and an acknowledgment filing, which maps directly onto "family relationships" in Article 50, paragraph (5). Second, a criminal courtroom is not only a place where a sentence is decided; it is also a place where testimony and evidence are created for the immigration proceedings that follow. Third, missing documents are not a reason to give up but the starting point for designing substitute proof.

What can be learned from Case D-2?

That it is possible to challenge the finding that a ground for deportation exists at all, while at the same time pursuing special permission to stay. The client in that matter was accused, wrongly, of the offence of promoting illegal employment and faced deportation. Under Article 24, item (iii)-4 of the Immigration Control Act, promoting illegal employment is established by the conduct itself; a criminal conviction is not a requirement. Practice had long proceeded on the view that neither intent nor negligence is needed for a ground for deportation to apply. Our office brought litigation questioning how far the principle of culpability reaches, and the case was fought up to the appellate level. Special permission to stay was subsequently granted by the immigration authorities.

The important point is that the outcome of the litigation and the grant of special permission to stay are two separate things. Special permission to stay is a distinct determination made under Article 50. We do not state conclusively whether the litigation in that matter was won or lost. What can be said is that the case was run on two tracks: contesting what was worth contesting, while at the same time accumulating material addressed to the factors in Article 50, paragraph (5).

If my home country will not issue documents, do I have to give up?

Not necessarily. Documents may be unavailable for many reasons: the country records births and marriages differently, local administration has broken down, or contacting the home authorities would itself create risk for the person concerned. The response is to design substitute evidence. Records created inside Japan (the maternal and child health handbook, medical records relating to the birth, records of living together, remittance and household budget records, photographs and message histories), written statements from people who know the family, and a record of the enquiries made to the embassy or consulate and their lack of result can be combined, with the absence of documents itself explained as a fact. Article 50, paragraph (5) does not require documents in any particular format; the standard is whether the material allows the circumstances to be established.

What is the point of analysing published immigration cases?

It lets you measure where your own case sits using material rather than impressions. The Immigration Services Agency publishes examples of special permission to stay decisions, covering both granted and refused cases, together with the type of violation, the length of stay, family relationships, conduct, and how the person came to the attention of the authorities. There are two uses. One is to identify granted cases that share the essential features of your own and to set out those shared features in writing. The other is to show how your case differs from the refused ones. Being treated differently without a rational reason raises an issue under Article 14, paragraph 1 of the Constitution of Japan, which guarantees equality under the law. Published cases are written at a level of abstraction that protects privacy, so an exact match is rarely found; the practical method is to compare on the similarity of the essential circumstances rather than to search for identical facts.

How does the severity of the criminal outcome affect special permission to stay?

It matters a great deal. The proviso to Article 50, paragraph (1) provides that where a person has been sentenced to indefinite kōkinkei (custodial sentence) or to a custodial sentence exceeding one year — excluding a person given a full suspension of execution, and a person given a partial suspension whose unsuspended portion is one year or less — permission may be granted "only where it is found that there are special circumstances such that refusing residence in Japan would lack humanitarian consideration." Read the other way, a case involving only unlawful residence under Article 24, item (iv)(b) does not fall under that proviso, which is a favourable feature. Overstaying itself is an offence under Article 70, paragraph (1), item (v), punishable by kōkinkei (custodial sentence) of up to three years or a fine of up to three million yen, or both. Article 24, item (iv)(i) treats a sentence of indefinite kōkinkei or a custodial sentence exceeding one year as a ground for deportation but excludes persons given a full suspension of execution. Even so, a suspended sentence does not remove the problem, because Article 24, item (iv)(b) already applies. Work to reduce the criminal outcome and work to obtain special permission to stay therefore have to be designed together from the very first step.

Why acting before enforcement action matters

What the two cases share is that steps remain available even after matters have progressed, but that acting earlier leaves more options open. The Guidelines on Special Permission to Stay state expressly that "the foreign national having voluntarily appeared at a regional immigration services bureau in order to report their illegal residence" is treated as a positive factor. A long period of illegal residence, by contrast, is treated as a negative factor. With identical living circumstances, whether the person reported or was detected changes the starting point of the assessment.

The same difference appears in the period of denial of landing if the person leaves Japan. A person who appears voluntarily at an immigration services office with the intention of leaving promptly, before a violation investigation under Article 27 has begun, falls under Article 24-3, item (i)(a); if they leave under a departure order, the period of denial of landing is one year from the date of departure (Article 5, paragraph (1), item (ix)(e)). By contrast, a person who expresses the intention to leave only after the violation investigation has begun (item (i)(b)) and who later seeks to enter for short-term stay activities faces five years (Article 5, paragraph (1), item (ix)(f)). If enforcement action means the other requirements for a departure order are not met, the case proceeds as deportation, giving five years (item (ix)(c)), or ten years where there is a prior deportation or departure order (item (ix)(d)). A departure order is issued by a supervising immigration inspector, who sets a departure deadline of no more than fifteen days (Article 55-85, paragraph (1)). For those seeking to remain in Japan, voluntary appearance likewise counts in their favour under Article 50, paragraph (5).

About our office

Funado International Law Office is located at Fuse Building Main Wing 3F, 3-4-10 Takada, Toshima-ku, Tokyo. Daisuke Matsumura (Dai-ichi Tokyo Bar Association, registration number 59077, admitted 2019) focuses on criminal defence for foreign nationals, primarily Chinese clients, and on immigration procedures.

Case D-1 (special permission to stay obtained in a single round of proceedings in a matter regarded as very difficult). The client had entered Japan for tourism, had a child with a Japanese woman, lost his status of residence, and was arrested and prosecuted for unlawful residence. With the marriage and acknowledgment of paternity incomplete and once refused, our office negotiated from a constitutional standpoint and both were completed; the defendant questioning and witness examination in the criminal trial were designed with the immigration proceedings in mind, and past published grants were analysed. Special permission to stay was obtained.

Case D-2 (a woman facing deportation over an allegation of promoting illegal employment). The client was wrongly accused. Against the established practice that intent or negligence is not required for a ground for deportation to apply, our office brought litigation questioning the reach of the principle of culpability and fought the case to the appellate level. Special permission to stay was subsequently granted by the immigration authorities.

On how we work: from the first consultation and the first detention visit, through accompanying the client to the immigration bureau, to the close of the criminal trial, Attorney Matsumura handles every stage personally, without delegating to clerks or junior lawyers. For Chinese, a dedicated interpreter experienced in cases involving foreign nationals is on staff, so a client can use an interpreter acting for them rather than the interpreter appointed by the investigating authorities; for other languages, we arrange an interpreter according to the case. Renewals and changes of status of residence after the criminal process ends are handled together with an affiliated administrative scrivener. The first consultation is free of charge, and fees are quoted according to the matter.

Closing

Special permission to stay is designed as an exceptional measure, but because Article 50, paragraph (5) sets out the factors to be considered, building material toward them is worthwhile. Missing documents, or criminal proceedings that have already started, do not by themselves mean the end. What matters is designing the criminal process and the immigration process as one, before a written deportation order is issued. This article is a general explanation; please consult a lawyer directly about your own case. The past results described here arose from the particular circumstances of those matters 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, primarily Chinese clients, and on immigration procedures.

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 specialised fraud case, and grants 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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