Overstaying After Leaving a Technical Intern Training Workplace in Japan: Unpaid Wages, Harassment, and Special Permission to Stay

Time passes after you leave the training workplace, and before you realise it your period of stay has expired while you are still living in Japan. Perhaps your wages were not paid as promised. Perhaps there was verbal abuse or violence. Perhaps you asked for help and no one listened. You left the workplace carrying all of that, had no idea what to do next, and the days went by. Many people in this position lie awake wondering what will happen and what to tell their family back home. This article sets out, provision by provision, how the law treats a technical intern trainee (技能実習生) who has left the training workplace and fallen into unlawful residence, and what options remain at each stage.

What offence do I commit if I leave my training workplace and my period of stay expires?

Remaining in Japan beyond your period of stay without obtaining an extension or a change of status is the offence of unlawful residence under Article 70, paragraph (1), item (v) of the Immigration Control and Refugee Recognition Act (Immigration Control Act, 入管法). The statutory penalty under the main clause of that paragraph is a kōkinkei (custodial sentence) of not more than 3 years, a fine of not more than 3 million yen, or both.

The same situation is also a ground for deportation under Article 24, item (iv)(b) (24条4号ロ). In other words, it has two faces at once: it exposes you to criminal punishment, and it makes you subject to the procedure for removing you from Japan. These two run as separate procedures. So even if the criminal case ends in a non-prosecution disposition or a suspended sentence, the fact that you fall under Article 24, item (iv)(b) does not change, and the deportation procedure continues. The belief that "I received a suspended sentence, so I can stay in Japan" is simply wrong.

If you worked somewhere else after leaving the training workplace, you may also be treated as having exclusively engaged in activities not permitted by your status of residence, which raises Article 24, item (iv)(a) and Article 70(1)(iv). And if you used a residence card in another person's name or a forged identity document, criminal offences outside the Immigration Control Act come into play, which can make the departure order procedure described below unavailable to you.

Is it still a crime if I left because of unpaid wages or harassment?

However pressing your reasons for leaving the training workplace, if you then remain in Japan past your period of stay, the offence under Article 70(1)(v) is still made out. That does not mean those reasons carry no weight.

In the criminal procedure, how you came to overstay is important material for assessing the seriousness of the offence. That your wages went unpaid and you could no longer support yourself, that you could not endure violence or relentless scolding, that no one told you where you could turn for help: these are matters defence counsel should argue actively, both for the prosecutor's choice of disposition and for sentencing if you are charged.

The same is true in the procedure for being allowed to remain. Article 50, paragraph (5) provides that, in deciding on special permission to stay (在留特別許可), the Minister of Justice considers the reasons for wishing to stay, family relationships, conduct, the circumstances of entry into Japan, the length of residence in Japan and the legal status held during that time, the facts constituting the ground for deportation, and the need for humanitarian consideration, as well as domestic and international circumstances, the effect on unlawful residents in Japan, and other matters. Unfair treatment at the training workplace can be argued under "the circumstances of entry into Japan", "the facts constituting the ground for deportation" and "the need for humanitarian consideration".

This is exactly why evidence matters. Pay slips, notes of working hours, remittance records, messages with the training workplace or the supervising organisation, medical certificates for injuries, records of consultations with the Labour Standards Inspection Office or the Organization for Technical Intern Training, contact details of colleagues. These are lost as time passes. Note also that the right to claim unpaid wages is a civil right, separate from whether you hold a status of residence; it does not automatically disappear simply because you end up leaving Japan.

How is "absconding from a technical intern training workplace" treated when special permission to stay is decided?

There is a point that must be stated accurately. Among the examples of special permission to stay published by the Immigration Services Agency, there are cases that can be read as treating the fact that the person left the technical intern training workplace and became untraceable as a negative factor. It would be wrong to assume that "because there was a reason behind leaving the workplace, this will naturally be viewed favourably".

The Guidelines on Special Permission to Stay (revised March 2024, in force from 10 June 2024) describe special permission to stay as "a measure taken exceptionally and as a matter of grace towards a foreign national who ought to be removed from Japan". On that basis, the Guidelines explain how each of the matters listed in Article 50(5) is evaluated. They expressly state that "the foreign national having voluntarily appeared at a regional immigration services bureau in order to report their unlawful residence" is a positive factor, while treating prolonged unlawful residence as a negative factor.

So unpaid wages or harassment in the background of your departure from the workplace does not by itself determine the outcome. It is one element weighed together with everything else. What matters is not merely asserting it, but supporting it with objective material and connecting it to your circumstances since (whether and how you have worked, your housing, family relationships, tax and social insurance, your conduct) so as to show that, taken as a whole, this is a case in which residence should be permitted. That is the heart of the lawyer's work.

Is there anything I can do before my period of stay expires?

Yes, and that stage is when you have the most options. Leaving the training workplace does not immediately extinguish your period of stay. However, if you cease to carry out the activities corresponding to your status of residence, you may become subject to revocation of your status of residence under Article 22-4. The revocation procedure gives you an opportunity to state your case, and depending on the circumstances a period for departure may be designated. If you remain after revocation, Article 70(1)(iii), (iii)-2 and (iii)-3 may apply.

Where the problem lies with the training workplace, consulting the supervising organisation, the Organization for Technical Intern Training, or the Labour Standards Inspection Office may open the way to a solution that includes changing workplaces. These procedures require the involvement of the relevant bodies and take time, but whether or not you start moving while your period of stay is still valid makes a large difference to the range of options left to you afterwards. Even if the deadline has already passed, there are still steps you can take, as set out below.

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

If the departure order (出国命令) procedure is available to you, the period of denial of landing is in principle 1 year from the date of departure (Article 5(1)(ix)(e), 5条1項9号ホ). That is a substantial difference from the 5 or 10 years that follow deportation. To qualify for a departure order, however, you must satisfy all five requirements in Article 24-3.

• Item (i): that, before the violation investigation under Article 27 began, you voluntarily appeared at an immigration services office with the intention of departing promptly (sub-item (a), イ); or that, after the investigation began but before receiving the notice under Article 47(3), you stated to an immigration inspector or immigration control officer that you intend to depart promptly (sub-item (b), ロ).
• Item (ii): that you do not fall under any of Article 24, items (iii) through (iii)-5, item (iv)(c) through (iv)(o) (4号ハからヨまで), item (viii) or item (ix).
• Item (iii): that, since entering Japan, you have not been sentenced to a kōkinkei for any of the offences listed in Article 24-3, item (iii), which include breaking into a residence, counterfeiting of currency, documents or securities, offences relating to electromagnetic records of payment cards, gambling, homicide, injury, unlawful capture and confinement, kidnapping and abduction, theft and robbery, fraud and extortion, and offences relating to stolen property, as well as certain offences under the Act on Punishment of Physical Violence, the Act on Prevention of Larceny, the Act Prohibiting Possession of Special Picking Tools, and the Act on Punishment of Acts Inflicting Death or Injury by Driving a Motor Vehicle.
• Item (iv): that you have not previously been deported from Japan, nor departed under a departure order issued under Article 55-85(1).
• Item (v): that you are reasonably expected to depart from Japan promptly.

When a departure order is issued, the supervising immigration inspector orders prompt departure and fixes a departure deadline within a period not exceeding 15 days (Article 55-85(1)). Conditions such as restrictions on residence and on the scope of movement may be attached (Article 55-85(3)). Unlike the deportation procedure, this procedure is not premised on physical detention.

Note carefully that sub-items (a) and (b) of item (i) lead to different outcomes. If you only stated your intention to depart after the violation investigation had begun (sub-item (b)), then where you later seek to engage in activities under a short-term stay, the period of denial of landing becomes 5 years from the date of departure (Article 5(1)(ix)(f), 5条1項9号ヘ). If a departure order is not available and you are deported, the period is 5 years from removal where you have no previous record of deportation or departure order (Article 5(1)(ix)(c)), and 10 years where you already have such a record (Article 5(1)(ix)(d)). Where you have been punished for a violation of narcotics-related legislation, Article 5(1)(v) imposes denial of landing with no fixed period.

When can I apply for special permission to stay?

An application for special permission to stay can be made only where you have been detained under a written detention order, or where a decision on supervision measures has been made (Article 50(2)). Before that point, the activity is not an "application" but the submission of material and representations asking the Minister of Justice to exercise their authority. And once a written deportation order has been issued, no application can be made (Article 50(3)). The timing of the decision is also fixed: special permission to stay may be granted only after you have accepted the immigration inspector's finding (Article 47(3)) or the special inquiry officer's determination (Article 48(8)), or after the Minister of Justice has ruled that an objection is without grounds (Article 50(4)). The procedure runs in this order: violation investigation (Article 27 onwards), written detention order (Article 39) or decision on supervision measures (Article 44-2(7)), violation examination by an immigration inspector (Article 45 onwards), finding (Article 47(3)), request for a hearing (Article 48), determination (Article 48(8)), objection to the Minister of Justice (Article 49), ruling, and finally special permission to stay (Article 50) or issuance of a written deportation order (Article 51).

One further point works in your favour. Where the only issue after leaving the training workplace is unlawful residence, the heightened requirement in the proviso to Article 50(1) does not apply. That proviso applies to persons sentenced to a kōkinkei for life or exceeding 1 year (excluding those given a full suspension of execution, and those given a partial suspension where the unsuspended portion is 1 year or less), and to certain other categories, and restricts permission to cases where "there are special circumstances such that refusing permission to reside in Japan would be found to lack humanitarian consideration". Unlawful residence falls under Article 24, item (iv)(b) and is not caught by that heightened requirement. That is a favourable starting point. Conversely, if after leaving the workplace you receive an unsuspended sentence exceeding 1 year for theft, fraud or the like, the proviso does apply and the outlook becomes far harder. This is why work to reduce the criminal disposition and work to obtain special permission to stay must be designed together from the very first steps. Note also that where a disposition refusing special permission to stay is made, you must be notified promptly by a document stating the reasons (Article 50(10)).

Why acting before you are detected matters

In cases involving people who have left a training workplace, the common choice is to do nothing until the police or immigration authorities find you. Fear that the workplace or the supervising organisation will be contacted, or fear of being forced to go home, means that only time passes. But the legal framework is built to favour the person who comes forward over the person who waits.

As set out above, the period of denial of landing divides into 1 year (Article 5(1)(ix)(e)), 5 years (Article 5(1)(ix)(f) and (c)) and 10 years (Article 5(1)(ix)(d)). What produces that difference is the timing of coming forward: whether you appeared voluntarily before the violation investigation began (Article 24-3, item (i)(a)), only stated your intention to depart after it began (item (i)(b)), or were detected and failed the requirements for a departure order altogether. It is something you can still change today, and it directly affects whether you can return to Japan.

In addition, the Guidelines treat voluntary appearance as a positive factor while treating prolonged unlawful residence as a negative one. The longer you spend without disclosing your whereabouts after leaving the workplace, the more both of those assessments move against you, and the harder it becomes to substantiate any claim of unfair treatment at the workplace. The earlier you move, the more there is that you can argue. That said, appearing before the authorities is something to do after preparation. What you say, when, and with what supporting material changes how the procedure unfolds, so we recommend consulting a lawyer and settling on an approach before you go.

About our office

Funado International Law Office is located at Fuse Building Main Wing 3F, 3-4-10 Takada, Toshima-ku, Tokyo. Daisuke Matsumura, attorney at law, focuses his practice on criminal defence for foreign nationals, principally clients of Chinese nationality, and on immigration procedures.

What distinguishes this office is that Mr Matsumura handles every stage personally, from the first prison visit through to the close of trial. No part of the work is delegated to clerical staff or junior lawyers. How you came to leave the training workplace, and how you were treated there, are things that in large part only you can put into words; they cannot be reduced to a written submission through second-hand accounts. For Chinese, a dedicated interpreter experienced in cases involving foreign nationals is on staff at the office; for other languages, we arrange an interpreter according to the circumstances of the case. This means that, separately from the interpreter appointed by the investigating authorities, you can use an interpreter whose role is to act for you. For renewal or change of status of residence after the criminal procedure has ended, we work with an affiliated administrative scrivener so that everything is handled in one place.

Two examples of past work. In one, a client who had come to Japan as a tourist had a child with a Japanese woman, lost his status of residence, and was arrested and prosecuted for unlawful residence. The marriage and acknowledgement of paternity were incomplete and the filings were initially refused; negotiating with the authorities from a constitutional standpoint secured both, and with an analysis of past cases in which permission had been granted, special permission to stay was obtained in a single round of proceedings.

In the other, a woman was wrongly accused of the offence of promoting unlawful employment and faced deportation. Against the established practice that "no intent or negligence is required for a ground for deportation", proceedings were brought questioning how far the principle of individual culpability reaches, contested up to the appellate level. Special permission to stay was subsequently granted by the immigration authorities.

The first consultation is free of charge. Fees are quoted according to the case.

Closing

Leaving the training workplace and staying beyond your period of stay is the offence of unlawful residence under Article 70(1)(v), and at the same time a ground for deportation under Article 24, item (iv)(b). What happens from here, though, depends on how you act from now on. The timing of coming forward divides the period of denial of landing into 1, 5 or 10 years, and the material you prepare becomes the very basis on which special permission to stay is judged. Unpaid wages and harassment at the training workplace only carry weight once they are properly turned into evidence.

This article is a general explanation. For your own case, please consult a lawyer directly. Past results are based on the individual circumstances of those cases and do not guarantee a similar outcome.

Author

Daisuke Matsumura, Attorney at Law

Daiichi Tokyo Bar Association (registration number: 59077, registered 2019)

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

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

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 special fraud case, and obtaining special permission to stay in cases regarded as difficult.

Contact

Funado International Law Office

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

WeChat ID: matsumura1119

Other language versions of this article

日本語 / 简体中文 / 繁體中文 / Tiếng Việt / 한국어