Facing Deportation Though You Grew Up in Japan: Special Permission to Stay

You were born in Japan. Or your parents brought you here before you were old enough to remember anything else. The language you speak is Japanese, you went through Japanese elementary school, junior high school and high school, and your friends, your family, your work and the life ahead of you are all here. And then, because of a criminal case, someone tells you: you are going to be deported. On the strength of one thing only, the nationality printed in your passport.

Cases like this are not unusual, and being told so is not the end of the matter. Japanese immigration law contains a relief mechanism designed with precisely this kind of person in mind. It is called Special Permission to Stay (在留特別許可, zairyū tokubetsu kyoka). What follows is written for people who have lived in Japan since childhood and have been placed in deportation proceedings because of a criminal case.

Why being born and raised in Japan does not keep you out of deportation proceedings

Article 24 of the Immigration Control and Refugee Recognition Act (出入国管理及び難民認定法, commonly the Immigration Control Act or 入管法) lists the grounds for deportation. Where a criminal case is involved, three of them matter most.

First, Article 24, item 4(ri) (24条4号リ). This covers a person sentenced to imprisonment (拘禁刑, kōkinkei, the single custodial sentence that replaced the former penal servitude and confinement) for life or for a term exceeding one year, where the sentence is to be actually served. Suspended sentences are not included. It operates whatever your status of residence: a permanent resident, a long-term resident or a spouse of a Japanese national all fall within it once the sentence to be served exceeds one year.

Second, Article 24, item 4-2 (24条4号の2). This applies to holders of a status of residence under Appendix I (別表第一, the activity-based statuses such as Engineer/Specialist in Humanities/International Services, Student, Dependent and Specified Skilled Worker) who are sentenced to imprisonment for offences under certain specified chapters of the Penal Code: theft, robbery, fraud, extortion, injury, unlawful entry into a residence, forgery of documents, and offences relating to stolen property. Crucially, this item applies even where the sentence is suspended. Holders of an Appendix II (別表第二) status, which covers statuses based on personal or family standing (Permanent Resident, Spouse or Child of Japanese National, Spouse or Child of Permanent Resident, and Long-Term Resident), are excluded.

Third, Article 24, item 4(chi) (24条4号チ). This covers a person found guilty of violating drug-related legislation such as the Narcotics and Psychotropics Control Act, the Cannabis Control Act or the Stimulants Control Act. A guilty verdict alone is enough, so a suspended sentence will trigger it, and in theory so will a fine. Appendix II holders are not exempt.

Special permanent residents are treated differently. For them, Article 22 of the Special Act on Immigration Control (入管特例法), which applies to Korean residents of Japan and others in that position, limits the grounds for deportation to offences such as insurrection and foreign aggression, and to cases where a person receives a sentence to be served of life or a term exceeding seven years and Japan’s vital interests have been harmed.

In short, the fact that you were born and raised in Japan does not, in itself, prevent you from falling within a ground for deportation. That is why so many people ask: I was born here, so why? Relief is designed to operate not at the stage of deciding whether a ground applies, but at the stage that follows.

The gateway to relief is Special Permission to Stay (Article 50 of the Immigration Control Act)

Even where a ground for deportation applies, the Minister of Justice may grant permission to stay as a special case. That is Special Permission to Stay.

The amendment made by Act No. 56 of 2023, in force from 10 June 2024, changed the system substantially. Previously it was a discretionary favour, and one could only wait for the Minister to act on his own initiative. The amendment created an application procedure (Article 50, paragraph 1) and wrote the matters to be taken into account into the statute (Article 50, paragraph 5). The provision lists, among others, the reasons for wishing to stay, family circumstances, conduct, the circumstances in which the person came to Japan, the length of residence in Japan and the person’s legal status during that period, the facts giving rise to the ground for deportation, and the need for humanitarian consideration.

There is, however, an exception. For a person sentenced to imprisonment for life or for a term exceeding one year, where the sentence is to be served, permission may be granted only where there are special circumstances such that refusing permission would be found to be lacking in humanitarian consideration (the proviso to Article 50, paragraph 1). For anyone who has received a sentence to be served, the bar rises to that level.

What shows how particular circumstances are weighed is the Guidelines on Special Permission to Stay (在留特別許可に係るガイドライン) issued by the Immigration Services Agency (出入国在留管理庁). Adopted in 2006 and revised in 2009, they were comprehensively revised in June 2024 to coincide with the entry into force of the amended Act, and they now list favourable and unfavourable factors in concrete terms.

Past grants and refusals constrain what the immigration authorities may decide

This is where the core of our argument begins.

Every year the Immigration Services Agency publishes a collection of cases in which Special Permission to Stay was granted and cases in which it was refused. Read together with the Guidelines, they show in considerable detail which combinations of circumstances lead to a grant, and where a case tips over into refusal.

We do not regard these published cases as mere background material. Once an administrative authority sets its own criteria, publishes them and decides a large number of cases by them, that practice acquires de facto binding force in later cases of the same kind. To treat a case presenting the same combination of circumstances differently, without a rational reason for doing so, should be regarded as contrary to Article 14, paragraph 1 of the Constitution of Japan (憲法14条1項), which guarantees equality under the law.

This is not an argument confined to the textbooks. In a judgment of 27 June 2013, the Nagoya High Court (名古屋高等裁判所) held that a decision departing significantly from the Guidelines violated the principle of equality and the principle of proportionality, and it ruled the issuance of the written deportation order (退去強制令書) unlawful. In a judgment of 20 December 2013 (Hanrei Jihō No. 2238, p. 3), the Osaka High Court (大阪高等裁判所) likewise reviewed the exercise of discretion by focusing on the fact that the Guidelines exist to secure transparency and fairness of procedure.

The first thing to do, therefore, whether you are making an application or challenging a refusal, is to go through the published cases exhaustively. Pull out several granted cases that resemble your own on the relevant headings, namely the nature of the violation, length of residence in Japan, family composition, how the situation came to light, conduct, and the need for humanitarian consideration, and set them out in a comparison table. Then argue that, where permission has been granted in cases with comparable circumstances, refusing it in this case alone is differential treatment without a rational basis. That is a far stronger attack than abstract appeals to humanity.

There is particular consideration for people who came to Japan as children

The Guidelines as revised in June 2024 identify, as a favourable factor under family circumstances, a relationship with a child who has received education at a primary or lower secondary school in Japan for a substantial period, who would find it difficult to be educated in the country of nationality, and who is integrated into the local community. Under the heading of conduct, they likewise count it as favourable that a person has in reality built substantial ties to the local community, for example through education at a Japanese primary or lower secondary school over a substantial period.

Administrative practice has moved as well. In August 2023 the Immigration Services Agency announced a policy of granting Special Permission to Stay, among those who had been refusing to leave, to children born in Japan who are being educated at elementary, junior high or high school here, together with their families. According to the results published on 27 September 2024, of the 201 children covered, 171 were granted Special Permission to Stay, and in 73 of the 111 households concerned every member of the household obtained a status of residence.

Why does education received at a Japanese school carry so much weight? We think there is a shift in the reading of the words own country to be found here.

Article 12, paragraph 4 of the International Covenant on Civil and Political Rights (自由権規約) provides that no one shall be arbitrarily deprived of the right to enter his own country. On the meaning of own country, General Comment No. 27 of the Human Rights Committee states that its scope is broader than the concept of country of nationality and is not limited to nationality in a formal sense, and that a broader interpretation embracing long-term residents is possible. For someone who has never once lived in the country of their nationality, who grew up with the language and culture of Japan as their own, is their own country not Japan? That the Guidelines now expressly treat educational history as a favourable factor can be read as practice giving its own partial answer.

Comparative law points in the same direction. In the Grand Chamber judgment in Maslov v. Austria of 23 June 2008 (application no. 1638/03), the European Court of Human Rights laid down the principle that very serious reasons are required to justify expelling a settled migrant who has spent all or the major part of his childhood and youth in the host country. The case concerned a Bulgarian national who had moved to Austria at the age of six and was convicted of theft and other offences committed as a juvenile before being ordered to leave; the Court found a violation of Article 8 of the European Convention on Human Rights (欧州人権条約8条), which protects private and family life.

What is actually examined: showing concretely how far you stand from your country of nationality

Abstract argument will not move anything. In practice, the case is won or lost in the work of filling in each of the following points with concrete evidence.

First, travel to and from the country of nationality. Obtain your entry and departure records and establish how often you have travelled there since coming to Japan and how long you stayed. Never having travelled there at all, or only on short visits to relatives, directly supports the point that you have no basis for living there.

Second, ability in that country’s language. It is not enough to say you cannot speak it. Set out how the household came to use Japanese even at home, that you never studied your parents’ language, and the reality that you cannot deal with official procedures without an interpreter.

Third, family and relatives in that country. Is there anyone who would take you in? Is there any contact between you? Any prospect of housing or work? If these are blanks, removal means the complete loss of any basis for living.

Fourth, educational history in Japan and ties to the local community. Graduation certificates, school report cards, records of club activities, written statements from former teachers and neighbours. Because the Guidelines expressly make this a favourable factor, it is worth building up carefully.

Fifth, family relationships. Your ties to a spouse or biological child who is Japanese or holds an Appendix II status, and the reality of your care and upbringing of that child. This has always been the strongest favourable factor.

Statements taken in the criminal case become evidence before the immigration authorities

Here is a point that is easily overlooked and yet decisive.

Where a criminal case comes first, the statements taken during the investigation, the questioning of the defendant at trial, the record of the violation examination (違反審査) after transfer to the immigration authorities and the record of the oral hearing (口頭審理) all become source material for the decisions that follow.

Anxious only to reduce the sentence, a person says: when I have served my sentence I will go home; I have relatives back there, so I can manage. Or, anxious only to get out quickly at the violation examination stage, the person waives the right to request an oral hearing. Remarks of that kind can later count against you when Special Permission to Stay is considered, either as evidence that you acknowledged ties to the country of nationality, or as a sign that you did not pursue the available procedures.

Put the other way round, it makes an enormous difference if the criminal defence is conducted with the immigration proceedings already in view. A settlement agreement, proof of compensation paid to the victim, a receipt for an atonement donation, a written undertaking from a guarantor, statements about your rehabilitation environment, and above all statements that accurately record how you grew up in Japan and how disconnected you are from your country of nationality. Designing the criminal and immigration proceedings as a single whole is the heart of criminal defence work for foreign nationals.

As for waiver of the right to request an oral hearing, several judgments have quashed the issuance of the written deportation order on the basis that the waiver did not reflect the person’s true intention and was therefore invalid, for example where the interpretation was inadequate or the person did not understand what was being said (Nagoya District Court, 11 April 2018; Tokyo District Court, 19 February 2010; Tokyo District Court, 21 January 2005, among others). Even if you have already signed such a waiver, please talk to us before giving up.

Examples where relief was actually granted

The collection of cases for 2025 (Reiwa 7) published by the Immigration Services Agency includes a person sentenced to one year and six months’ imprisonment, to be served, for theft who was granted Special Permission to Stay (Long-Term Resident, one year), with the note that the person was of Japanese descent, was born in Japan and had been educated at Japanese educational institutions. The case cleared the barrier of the proviso to Article 50, paragraph 1 for a sentence to be served exceeding one year, and shows that birth and education in Japan worked positively in the finding of special circumstances.

Among the court decisions, the judgment of the Osaka High Court of 28 May 2008 is representative. It concerned a child of Chinese nationality who had come to Japan at the age of eight, had lived here about eight years and had gone through Japanese elementary, junior high and high school. Emphasising among other things that the child bore no responsibility, the court reversed the judgment below as regards the child alone and quashed both the decision on the objection and the issuance of the written deportation order.

A criminal record does not close the door either. The judgment of the Tokyo District Court of 16 June 2017 concerned a man of Chinese nationality who had come to Japan at nineteen, had lived here about twenty years, and had a wife with Long-Term Resident status and two children raised in Japan. He had a conviction for injury causing serious harm, for which he received two years and six months’ penal servitude suspended for five years (corresponding to imprisonment under the current law), as well as a prior fine, and the State argued that his residence record was seriously bad. The court quashed the decision on the objection and the issuance of the written deportation order.

Going back further, the judgment of the Tokyo District Court of 19 September 2003 (Hanrei Jihō No. 1836, p. 16) concerned an Iranian family including a child who had come to Japan at the age of two and had lived here for more than ten years. Holding that removal would overturn from the foundations the personality and values the child had built up, the court quashed the deportation order in the light of Article 3 of the Convention on the Rights of the Child and the principle of proportionality.

In each case, the result followed from treating the fact of having grown up in Japan not as material for abstract sympathy but as a concrete fact deserving legal assessment, and backing it up with evidence.

Frequently asked questions

I have received a sentence that I have to serve. Is it already too late?

No. Where the sentence to be served exceeds one year, special circumstances under the proviso to Article 50, paragraph 1 of the Immigration Control Act are required, but the published cases include several grants where the sentence to be served ranged from one year and two months to one year and six months. On the other hand, a sentence of two years and six months to be served led to refusal in one case even though the person was raising a biological child of Japanese nationality. Sentence levels matter greatly in practice, so defence work before judgment, and better still before charges are brought, is decisive.

My sentence was suspended, so am I all right?

It depends on your status of residence. If you hold an Appendix I status (a work status, Student, Dependent and the like) and receive a sentence of imprisonment for theft, injury, fraud or a similar offence, you fall within a ground for deportation under Article 24, item 4-2 even though the sentence is suspended. Drug cases fall within item 4(chi) regardless of your status of residence, and again a suspended sentence is enough.

If Special Permission to Stay is refused, can I challenge it?

A refusal, and the issuance of a written deportation order, can be challenged by an action to quash the disposition together with an application for a stay of execution. If removal is imminent it becomes a race against time, so please contact us early.

I only speak Japanese. Does that help me?

It is a circumstance that can help. But simply saying you cannot speak the other language is not enough. Only when you set out concretely whether you ever studied your parents’ language, what language was used at home, and whether you could enter that country’s education system does it become proof that life after removal would not be viable.

In closing

You were born in Japan, you grew up in Japan, you think in Japanese, and you have built your life here. And yet, because of one thing, your nationality, you are about to be sent back to a country you have never seen. The law is not without an answer to that injustice. Special Permission to Stay under Article 50 of the Immigration Control Act, the constraining force of the accumulated published cases, the guarantee of equality in Article 14 of the Constitution, and where international human rights law has arrived on the meaning of one’s own country. There are tools available.

What matters is not to give up at the moment you are told, and to act from the criminal stage onwards with the immigration proceedings already in view.

Funado International Law Office has handled criminal defence for foreign nationals and immigration proceedings as a single, integrated practice. For Chinese we have a dedicated interpreter on staff, and for other languages we arrange interpretation according to the case. Procedures concerning status of residence and visas are handled in cooperation with an affiliated administrative scrivener.

Even if you have been told you will be deported, please talk to us first.

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Funado International Law Office
Attorney Daisuke Matsumura (Dai-ichi Tokyo Bar Association, registration no. 59077)
Website: https://matsumura-lawoffice.jp/
WeChat ID: matsumura1119