Overstaying in Japan as a Student: Expulsion, Unauthorised Work, Revocation of Status and Special Permission to Stay

You were expelled from your school, or you stopped attending classes after taking on more part-time work. Your period of stay expired some time ago, and you are still in Japan without anyone to talk to. We regularly hear from people who came to Japan on a Student (留学) status of residence and now find themselves in exactly this position. The longer the overstay continues, the harder it becomes to move at all, while time keeps passing. This article sets out, article by article under the Immigration Control and Refugee Recognition Act (Immigration Control Act), what is legally happening when a student overstays, and what can still be done at each stage.

What happens to my Student status of residence if I am expelled or withdraw from school

Being expelled or withdrawing does not, by itself, make your status of residence disappear that day. Formally, the status remains until the expiry date of the period of stay printed on your residence card. However, Article 22-4 of the Immigration Control Act provides a framework for revocation of a status of residence, and if a situation continues in which you are not in fact carrying out the activities of a student, revocation may come into play. Exactly which item applies, and the procedural and time-related details leading up to revocation, must be checked case by case against the statute and actual practice, so this article states only the framework.

The essential point is that the belief "once I leave school I can do nothing until my period of stay expires" is mistaken. Separately, where a person remains in Japan after a status of residence has been revoked, penalties are provided under Article 70, paragraph (1), items (iii), (iii)-2 and (iii)-3 of the Immigration Control Act.

Is overstaying as a student actually a crime in Japan

Yes. It is subject to criminal punishment. Article 70, paragraph (1), item (v) of the Immigration Control Act covers "a person who stays in Japan beyond the period of stay (including the period during which the person may stay in Japan under Article 20, paragraph (6)) without obtaining an extension or change of that period." The statutory penalty, under the main clause of Article 70, paragraph (1), is kōkinkei (custodial sentence) of up to three years or a fine of up to three million yen, or both.

At the same time, overstaying is a ground for deportation under Article 24, item (iv)(b). In other words, two tracks run in parallel: the criminal process handled by the police and prosecutors, and the administrative deportation process handled by the Immigration Services Agency. Focusing on only one of them leads to the wrong response.

Does a longer overstay mean a heavier sentence

The statutory penalty itself is the same regardless of how long you have overstayed. What changes is not the statutory penalty but the prosecutor's choice of disposition and the range of sentencing. In practice, the length of the overstay, understood as how long the unlawful situation was allowed to continue, is a central factor that directly affects the severity of the disposition.

Cases where the overstay lasted only some months, where the person came forward voluntarily, and where the basis of daily life and family relationships are clear, tend toward lighter dispositions. Cases where the overstay ran for several years or longer, involved unauthorised work, and are compounded by other violations such as forged documents, tend toward heavier ones. Outcomes vary considerably from case to case, so the length of the overstay alone cannot tell you what will happen.

What if I worked more than my work permission allowed

That can change things. If you worked beyond the scope permitted by your permission to engage in activity other than that permitted under your status of residence, and you are assessed as having devoted yourself exclusively to that work rather than to your studies, a separate issue arises. Exclusive engagement in unauthorised activity is an offence under Article 70, paragraph (1), item (iv), and it is a ground for deportation under Article 24, item (iv)(a). The reality of your work is examined directly, both in the criminal disposition and in the decision on whether you may remain.

On the other hand, among the requirements for a departure order described below, the grounds for deportation that must not apply are those in Article 24, items (iii) through (iii)-5, item (iv)(c) through (iv)(y), item (viii) and item (ix) (Article 24-3, item (ii)). Item (iv)(a), covering exclusive engagement in unauthorised activity, is not within that list of exclusions. So the mere existence of unauthorised work does not automatically close off the departure order route. That said, all five requirements below must be satisfied.

What difference does it make if I report to immigration before being caught

It makes a clear difference as a matter of law. Under Article 24-3, a departure order is available to a foreign national who falls under Article 24, item (ii)-4, item (iv)(b), or items (vi) through (vii), and who satisfies all five of the following requirements.

• The person falls under either (a) or (b). Under (a), the person appeared voluntarily at a regional immigration services office, with the intention of promptly leaving Japan, before the commencement of a violation investigation under Article 27. Under (b), after the commencement of a violation investigation but before receiving the notice under Article 47, paragraph (3), the person stated to an immigration inspector or immigration control officer an intention to leave Japan promptly.
• The person does not fall under any of Article 24, items (iii) through (iii)-5, items (iv)(c) through (iv)(y), item (viii) or item (ix).
• After entering Japan, the person has not been sentenced to kōkinkei (custodial sentence) for offences under Part II of the Penal Code, Chapter XII (breaking into a residence), Chapters XVI to XIX (counterfeiting currency, forgery of documents, forgery of securities, electromagnetic records of payment cards), Chapter XXIII (gambling), Chapter XXVI (homicide), Chapter XXVII (injury), Chapter XXXI (unlawful capture and confinement), Chapter XXXIII (kidnapping and abduction), Chapter XXXVI (theft and robbery), Chapter XXXVII (fraud and extortion) or Chapter XXXIX (stolen property); offences under Articles 1, 1-2 and 1-3 of the Act on Punishment of Physical Violence and Others; offences under the Act for Prevention of Robbery and Theft; offences under Articles 15 and 16 of the Act on Prohibition of Possession of Special Picking Tools; offences under Article 2 and Article 6, paragraph (1) of the Act on Punishment of Acts Inflicting Death or Injury on Others by Driving a Motor Vehicle; or the offence under Article 22 of the Act on Prevention of Disposal of Stolen Specified Metal Articles.
• The person has not previously been deported from Japan, nor departed under a departure order issued pursuant to Article 55-85, paragraph (1).
• The person is expected with certainty to leave Japan promptly.

Where a departure order is issued, the supervising immigration inspector orders prompt departure and sets a departure deadline within a period not exceeding 15 days (Article 55-85, paragraph (1)). Conditions such as restrictions on residence and on the scope of movement may be attached (paragraph (3) of the same Article). Unlike deportation proceedings, the departure order procedure does not presuppose detention.

For a student, the moment you leave school, or the moment your period of stay expires, is itself the branching point. Whether you came forward yourself before a violation investigation began, or whether the process started with a street check or an enforcement action, determines whether you fall under (a) or (b) of Article 24-3, item (i), and indeed whether a departure order is available at all. The Guidelines on Special Permission to Stay in Japan also state expressly that the fact that "the foreign national appeared voluntarily at a regional immigration services office in order to report the unlawful stay" is taken into account as a positive factor. Conversely, a prolonged unlawful stay is assessed as a negative factor.

If I leave Japan under a departure order, when can I come back

The waiting period depends on how you left Japan. Article 5, paragraph (1), item (ix) divides the situations as follows.

• A person who departed under a departure order: one year from the date of departure (Article 5, paragraph (1), item (ix)(e)).
• A person falling under Article 24-3, item (i)(b), that is, a person who expressed an intention to leave only after a violation investigation had begun, who departed under a departure order and thereafter seeks to engage in activities of temporary visitor status: five years from the date of departure (Article 5, paragraph (1), item (ix)(f)).
• A person who was subject to deportation but received the decision under Article 52, paragraph (5) and left Japan voluntarily by the deadline (other than for temporary visitor purposes): one year from the date of departure (Article 5, paragraph (1), item (ix)(b)).
• A person who was deported and had no prior record of deportation or departure order: five years from the date of departure (Article 5, paragraph (1), item (ix)(c)).
• A person who was deported and already had a record of deportation or departure order: ten years from the date of departure (Article 5, paragraph (1), item (ix)(d)).
• A person deported on grounds falling under Article 24, item (iv)(e) through (iv)(y): no fixed period (Article 5, paragraph (1), item (x)). Article 5, paragraph (1), item (v), which applies where there is a record of punishment for drug-related offences, likewise has no fixed period.

For someone who hopes to study in Japan again, or to enter a Japanese graduate school, the difference between one year and five, or between five years and ten, shapes the whole plan of a life. In most cases, the point at which that difference is decided is the point at which the person acted.

Will my wish to continue studying or to start working in Japan be taken into account

It will be taken into account. Article 50, paragraph (1) provides that even where a person falls within those subject to deportation, the Minister of Justice may, upon application by the foreign national or ex officio, grant special permission to stay if one of the listed items applies. Most overstay cases are decided under item (v), "where the Minister of Justice finds that there are other circumstances warranting special permission to stay."

Paragraph (5) of the same Article sets out in statute the circumstances to be considered: the reasons for wishing to stay, family relationships, conduct, the circumstances of entry into Japan, the length of stay in Japan, the legal status held during that time, the facts constituting the grounds for deportation, and the need for humanitarian consideration; and in addition, domestic and international conditions, the effect on unlawful residents in Japan, and other circumstances. A wish to continue to higher education, an informal job offer already received, or a wish to use skills acquired in Japan are matters to be argued under "the reasons for wishing to stay."

Procedurally, an application may be made by a foreign national detained under a written detention order, or one subject to a written monitoring measure decision (Article 50, paragraph (2)). Before that stage, what can be done is to urge the Minister to exercise the power ex officio. Once a written deportation order has been issued, no application can be made (paragraph (3)). The point of decision comes after the person has accepted the finding under Article 47, paragraph (3) or the determination under Article 48, paragraph (8), or after a decision that the objection is without grounds (paragraph (4)). Where special permission is not granted, the person must be promptly notified in writing with reasons attached (paragraph (10)).

The Guidelines on Special Permission to Stay in Japan (revised in March 2024 and effective from 10 June 2024) position special permission as "an exceptional and discretionary measure taken with respect to a foreign national who should otherwise be deported from Japan." Your wishes being considered is not the same as permission being granted as of right; the circumstances must be presented concretely, with supporting evidence.

If my criminal case ends lightly, can I stay in Japan

These are two separate questions. The severity of the criminal disposition is not directly linked to whether you may continue to reside in Japan. Even if you receive a suspended sentence, and even if you receive a non-prosecution disposition, deportation proceedings continue under Article 24, item (iv)(b).

This is where misunderstandings most often arise. Article 24, item (iv)(r) covers "in addition to those listed in (d) through (h), a person who has been sentenced, on or after 1 November 1951, to kōkinkei (custodial sentence) for an indefinite term or for a term exceeding one year; provided, however, that this excludes a person who has received a suspension of execution of the whole sentence, and a person who has received a suspension of execution of part of the sentence where the unsuspended portion is one year or less." So even a sentence such as "one year and six months, suspended for three years" for unlawful residence does not fall under item (iv)(r). But the person already falls within the grounds for deportation under item (iv)(b), so the belief that "the sentence was suspended, so I am safe" is wrong.

Conversely, if the sentence is not suspended and exceeds one year, the additional requirement in the proviso to Article 50, paragraph (1) applies. In that case special permission may be granted only "where it is found that there are special circumstances such that refusing permission to stay in Japan would be lacking in humanitarian consideration." A case involving only unlawful residence under Article 24, item (iv)(b) is not subject to that heightened requirement in the proviso, which is a favourable point for students. Precisely for that reason, the work of mitigating the criminal disposition and the work of obtaining special permission to stay must be designed as one from the very first response.

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, principally for clients of Chinese nationality. From the first visit at the detention facility through to the close of trial, attorney Daisuke Matsumura handles every stage personally. The work is not passed to clerical staff or to junior attorneys.

A dedicated Chinese-language interpreter experienced in cases involving foreign nationals is present at the office at all times. For other languages, we arrange an interpreter according to the requirements of the case. Interpreters engaged through our office work for the client, separately from the interpreter designated by the investigating authorities. After the criminal process ends, renewals and changes of status of residence are handled on a one-stop basis together with an affiliated administrative scrivener.

Two examples of past matters. In the first, a client who had come to Japan for sightseeing had a child with a Japanese woman, lost his status of residence, and was arrested and prosecuted for unlawful residence. The marriage and acknowledgment of paternity had not been completed and the authorities initially refused to accept the filings. Attorney Matsumura negotiated with the authorities from a constitutional standpoint, secured the marriage and the acknowledgment, and conducted the examination of the defendant and of witnesses with the criminal trial under the Immigration Control Act in view. Despite the near-total absence of official documents issued by the country of nationality, favourable evidence was gathered and past grant cases of the immigration authorities were analysed, and special permission to stay was obtained in a single set of proceedings.

In the second, a woman was wrongly accused of promoting unlawful employment and faced deportation. Against the established practice that "grounds for deportation require neither intent nor negligence," we brought litigation asking how far the principle of individual responsibility reaches, and pursued it to the appellate stage. Special permission to stay was subsequently granted by the immigration authorities. The first consultation is free of charge, and fees are quoted according to the matter.

In closing

For a student, an overstay means different things at the moment you leave school, at the moment your period of stay expires, and at the moment someone finds out. Consulting a lawyer while you still have room to act on your own affects both the length of the period of denial of landing and the outlook for special permission to stay. This article is a general explanation; for your own case, please consult a lawyer directly. The past matters described here rest on their own particular circumstances and do not guarantee 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)

Concentrates on criminal defence for foreign nationals and immigration procedures, principally for clients of Chinese nationality.

Past 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 special permission to stay in a matter regarded as difficult.

Contact

Funado International Law Office

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

WeChat ID: matsumura1119

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