Overstaying a Visa in Japan: What Crime Is It? Article 70(1)(v) of the Immigration Control Act and the “Up to 3 Years’ Kokinkei or a Fine of Up to 3 Million Yen”

The expiry date printed on your residence card has passed, and you are still living in Japan. You meant to file the renewal, one thing led to another, and by the time you looked properly at the card, months or even years had gone by. The two questions we hear most often from people in this situation, and from their families, are simple: is this a crime, and what happens if the authorities find out. Most of the anxiety comes from not knowing how the law classifies the situation you are in. This article works through the statute itself: which provision overstaying violates, what the statutory penalty is, and how the immigration procedure running alongside the criminal case works.

What crime is overstaying in Japan

It is the offence under Article 70, paragraph (1), item (v) of the Immigration Control and Refugee Recognition Act (the Immigration Control Act, 出入国管理及び難民認定法), commonly called illegal overstay (不法残留). That provision 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 of the period of stay or a change of status of residence." The elements are therefore:

• the period of stay you were granted has expired;
• you have not obtained permission to extend that period or to change your status of residence; and
• you are nevertheless still physically in Japan.

The words in parentheses, referring to Article 20, paragraph (6), matter. If you filed a renewal application before your period of stay expired and the examination is still pending, that special period allows you to remain lawfully. While that period is running, you are not an overstayer. The problem arises where no application was filed at all, or where even the special period has run out.

How severe is the penalty for illegal overstay

The main clause of Article 70, paragraph (1) provides that a person falling under any of the items of that paragraph is "punished by kōkinkei (custodial sentence) of up to 3 years or a fine of up to 3 million yen, or both." The phrase "or both" means the court may impose the custodial sentence and the fine together.

What matters here is that this is the statutory range, the band the legislature has set. It is not a prediction of what will actually be imposed. In practice, a prosecutor may decide not to prosecute at all, may dispose of the case by fine, or may bring the case to open trial. Which of those paths a case takes varies considerably with the individual circumstances.

Why does the law say "kōkinkei" instead of "imprisonment with work"

Because the 2022 amendment to the Penal Code took effect on 1 June 2025, abolishing the former two categories of chōeki (imprisonment with work) and kinko (imprisonment without work) and merging them into a single custodial sentence, kōkinkei. The current statutory penalty in Article 70, paragraph (1) of the Immigration Control Act is accordingly "kōkinkei of up to 3 years."

Much of the material online still uses the pre-amendment term, but the maximum term and the maximum fine have not changed. Where a judgment handed down on or before 31 May 2025 is quoted, the original wording chōeki is retained (it corresponds to kōkinkei under current law).

Are the criminal case and deportation the same procedure

No. They are two separate procedures running in parallel, and this dual structure is the single greatest source of confusion about overstaying.

Overstaying is not only a criminal offence. It is also a ground for deportation. Article 24, item (iv)(b) of the Immigration Control Act (24条4号ロ) lists as subject to deportation a person who "stays in Japan beyond the period of stay without obtaining an extension of the period of stay or a change of status of residence." The wording is almost identical to Article 70(1)(v). The same single fact is, on the criminal side, an element of an offence, and on the immigration side, a ground for deportation.

The consequence is important. Even if the prosecutor decides not to prosecute, and even if the court hands down a suspended sentence, that does not extinguish the applicability of Article 24(iv)(b). After the criminal case ends, the deportation procedure continues along its own separate line. The belief that "the criminal outcome was light, so I can stay in Japan" is not accurate. To remain, you need a favourable determination on special permission to stay (在留特別許可) under Article 50 of the Immigration Control Act.

Does a longer overstay mean a heavier crime

The statutory range itself is the same regardless of how long the overstay lasted. Whether it is one month or ten years, the band remains kōkinkei of up to 3 years or a fine of up to 3 million yen. What changes is not the statutory range but the prosecutor's choice of disposition and the sentencing range within that band.

In practice, the length of the overstay is treated as a central factor in assessing the gravity of the conduct, because it measures how long the unlawful state of affairs was maintained. As a general tendency, cases where the overstay lasted only a matter of months, where the person came forward voluntarily to report it, and where their living situation and family ties are clear, tend towards lighter dispositions. Cases where the overstay ran for years or longer, where it was accompanied by unauthorised work, and where further violations such as the use of forged documents are layered on top, tend towards heavier dispositions. That is a tendency, not a rule, and outcomes vary from case to case.

There is a further point that must be kept separate. How light or heavy the criminal disposition turns out to be is a different question from whether you can continue living in Japan. The direction that actually deserves caution is the opposite one. If a person receives an unsuspended custodial sentence exceeding one year, the proviso to Article 50, paragraph (1) applies, and special permission to stay may then be granted only where there are "special circumstances such that refusing permission to stay in Japan would be found to lack humanitarian consideration." Conversely, a case involving nothing more than illegal overstay under Article 24(iv)(b) does not fall under that heightened requirement. That is a favourable starting point. It is precisely for this reason that the work of securing a lighter criminal disposition and the work of obtaining special permission to stay must be designed together from the very first steps.

What other violations commonly overlap with overstaying

Several. In practice, cases rarely stop at a bare overstay. The following frequently appear alongside it:

• Exclusively engaging in unauthorised activities (Article 70(1)(iv); the corresponding ground for deportation is Article 24, item (iv)(a)).
• Remaining after a status of residence has been revoked (Article 70(1)(iii), (iii)-2 and (iii)-3).
• Remaining beyond the departure deadline set in a departure order (Article 70(1)(viii)-2).
• Promoting illegal work (the ground for deportation is Article 24, item (iii)-4; this ground is satisfied by the conduct itself and does not require any criminal punishment).

Overlapping violations do more than make the disposition heavier. The departure order system discussed below requires that every requirement of Article 24-3 be met, and item (ii) of that Article requires that the person fall under none of Article 24, items (iii) through (iii)-5, none of sub-items ハ through ヨ of item (iv), and none of items (viii) or (ix). Once violations accumulate, that requirement can fail, and the departure order route becomes unavailable altogether.

Why does it matter to come forward before you are detected

In overstay cases, who set the process in motion splits the road into very different paths. This is not a matter of attitude; it follows directly from the statute. Article 24-3 defines who is eligible for a departure order. Among foreign nationals falling under Article 24(iv)(b) and certain other grounds, the person must satisfy all of the following:

• Item (i)(a): before an investigation into violations under Article 27 has begun, the person voluntarily appeared at a regional immigration services bureau with the intention of leaving Japan promptly; or item (i)(b): after such an investigation has begun but before receiving the notice under Article 47, paragraph (3), the person stated to an immigration inspector or immigration control officer that they intend to leave Japan promptly.
• Item (ii): the person falls under none of Article 24, items (iii) through (iii)-5, none of sub-items ハ through ヨ of item (iv), and none of items (viii) or (ix).
• Item (iii): since entering Japan, the person has not been sentenced to kōkinkei for breaking into a residence, counterfeiting of currency, documents, securities or payment cards, gambling, homicide, injury, unlawful capture and confinement, kidnapping and abduction, theft and robbery, fraud and extortion or handling of stolen goods, nor for certain offences under the Act on Punishment of Physical Violence and Others, the Act for Prevention of Larceny and Other Related Matters, the Act on Prohibition of Possession of Special Picking Tools, the Act on Punishment of Acts Inflicting Death or Injury on Others by Driving a Motor Vehicle, or the Act on Prevention of Disposal of Stolen Specified Metal Products.
• Item (iv): the person has never previously been deported from Japan, nor departed under a departure order.
• Item (v): the person is expected to leave Japan promptly with certainty.

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 restricting residence and movement may be attached (paragraph (3) of the same Article). Unlike the deportation procedure, the departure order procedure does not presuppose detention.

The difference shows up most starkly in how long you must wait before you can come to Japan again, that is, the period of denial of landing under Article 5, paragraph (1), item (ix):

• A person who came forward voluntarily before the investigation into violations began (Article 24-3, item (i)(a)) and departed under a departure order: 1 year from the date of departure (Article 5(1)(ix)(e)).
• A person who stated an intention to depart only after the investigation had begun (item (i)(b)), departed under a departure order, and then seeks to engage in activities as a temporary visitor: 5 years from the date of departure (Article 5(1)(ix)(f)).
• A person for whom the departure order route was unavailable and who was deported, with no prior record of deportation or departure order: 5 years from the date of departure (Article 5(1)(ix)(c)). Where such a prior record exists: 10 years (Article 5(1)(ix)(d)).
• A person deported on grounds falling under sub-items オ through ヨ of Article 24, item (iv): no fixed period at all (Article 5(1)(x)). A record of punishment under narcotics-related legislation (Article 5(1)(v)) likewise carries denial of landing with no time limit.

The Guidelines on Special Permission to Stay (revised in March 2024 and in force from 10 June 2024) position special permission as an exceptional, discretionary measure granted to a foreign national who is otherwise to be deported. Within that framework, the Guidelines expressly state that "the fact that the foreign national voluntarily appeared at a regional immigration services bureau in order to report their illegal stay" is taken into account as a positive factor. Conversely, a prolonged illegal stay is assessed as a negative factor. The longer time passes, the more unfavourable material accumulates.

That said, appearing voluntarily without preparation carries its own risk: circumstances that should have counted in your favour may simply never enter the record before the procedure moves on. Whether to come forward, and when and how to explain your situation, is best decided after speaking with a lawyer.

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 immigration procedures, with a client base centred on Chinese nationals. Daisuke Matsumura, attorney at law (Daiichi Tokyo Bar Association, registration number 59077, admitted 2019), personally handles every stage: the first interview at the police station, negotiations with the prosecutor, the trial, and the immigration procedure that follows. The work is not passed to clerical staff or junior lawyers.

For Chinese, a dedicated in-house interpreter experienced in cases involving foreign nationals is available at all times; for other languages, an interpreter is arranged according to the needs of the case. The point is that you can rely on an interpreter working for you, separate from the interpreter arranged by the investigating authorities, so that you know precisely what was said in questioning and what you are being asked at the immigration bureau. Renewals and changes of status of residence after the criminal case ends are handled on a one-stop basis together with an affiliated administrative scrivener.

• Special permission to stay obtained in a single round of proceedings in a case regarded as difficult. The client had entered Japan as a tourist and had a child with a Japanese woman, but had lost his status of residence and was arrested and prosecuted for illegal stay. The marriage and acknowledgment of paternity were incomplete and were initially refused by the authorities. Mr. Matsumura negotiated from a constitutional standpoint, secured both the marriage and the acknowledgment, and conducted the defendant and witness examinations with the immigration-related criminal trial firmly in view. Despite the near-total absence of official documents from the country of nationality, favourable evidence was assembled and past grants by the immigration authorities analysed, and special permission to stay was obtained in a single round.
• A woman facing deportation was able to remain. The client had been wrongly accused of promoting illegal work and faced deportation. Against the settled practice holding that grounds for deportation require neither intent nor negligence, the office brought proceedings testing the reach of the principle of culpability and litigated through to 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 the case. Let us begin simply by organising where things stand.

Closing

Overstaying is at once an offence under Article 70(1)(v) and a ground for deportation under Article 24(iv)(b). Both lines move, and whether you come forward yourself can mean the difference between a one-year, a five-year and a ten-year period of denial of landing. That is why the earliest decisions carry so much weight. The structure is one in which hesitation itself works against you, so there is no need to have settled on a plan before you contact us.

This article is a general explanation. For your own case, please consult a lawyer directly. The past results described here rest on the particular circumstances of those cases and do not guarantee a similar outcome.

Author

Daisuke Matsumura, Attorney at Law

Daiichi 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, with a client base centred on Chinese nationals.

Results include an acquittal in a case of violation of 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 cases regarded as difficult.

Contact

Funado International Law Office

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

WeChat ID: matsumura1119

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