Special Permission to Stay Depends on Your Spouse's Status of Residence | What to Do Before the Criminal Judgment Becomes Final
2026/10/11
When a foreign national enters deportation proceedings because of a criminal case, whether Special Permission to Stay (在留特別許可, zairyu tokubetsu kyoka) is granted depends heavily not only on the person's own circumstances but also on the status of residence under which his or her spouse lives in Japan. Even where the offense and the severity of the sentence are similar, permission is granted if the spouse is a Japanese national, a Permanent Resident or a Long-Term Resident, and refused if the spouse holds a status such as Engineer/Specialist in Humanities/International Services. The cases published by the Immigration Services Agency of Japan show this divide clearly.
Key points
- An application for Special Permission to Stay can be made only after the person has been detained under a written detention order (収容令書) or has received a decision placing him or her under a supervision measure (監理措置) (Immigration Control Act (入管法), Article 50(2)). No application can be made once a written deportation order (退去強制令書) has been issued (Article 50(3)).
- The Guidelines on Special Permission to Stay treat a marriage as a "positive factor to be given particular consideration" only where the spouse is a Japanese national or Special Permanent Resident, or resides under a status listed in Appended Table II (別表第二) of the Immigration Control Act, such as Permanent Resident or Long-Term Resident.
- Our office examined the original published cases for 2014 (平成26年) through 2025 (令和7年). There were 8 cases in which the spouse held an Appended Table I (別表第一) status and the person had a criminal disposition (including a suspended sentence), and permission was refused in every one of them.
- Grounds for deportation based on a criminal judgment arise only when the judgment becomes final. With appropriate handling from the investigation stage through the final appeal to the Supreme Court, several years may pass before the judgment becomes final.
- Using that time to move forward with the spouse's application for naturalization or permanent residence, and so raise the spouse's residence status, is a realistic path toward permission.
What is Special Permission to Stay, and when can one apply for it?
Special Permission to Stay is a disposition by which the Minister of Justice, as a special measure, allows a foreign national who falls under the grounds for deportation to remain in Japan (Immigration Control Act, Article 50(1)). The 2023 (令和5年) amendment, which took effect on June 10, 2024 (令和6年), created a procedure under which the person concerned can apply for it.
However, an application cannot be made at any time one chooses. Article 50(2) of the Immigration Control Act provides as follows.
「在留特別許可の申請は、収容令書により収容された外国人又は監理措置決定を受けた外国人が、法務省令で定める手続により、法務大臣に対して行うものとする。」（入管法50条2項）
(Translation: "An application for Special Permission to Stay shall be made to the Minister of Justice, in accordance with the procedures prescribed by Order of the Ministry of Justice, by a foreign national who has been detained under a written detention order or who has received a supervision measure decision.") (Immigration Control Act, Article 50(2))
In other words, eligibility to apply arises only after immigration deportation proceedings have begun and the person has been detained or placed under a supervision measure in lieu of detention. Conversely, no application can be made after a written deportation order has been issued (Article 50(3)). In addition, if the person accepts the finding of the immigration inspector, a written deportation order will be issued unless the application is made within 3 days from that date (Immigration Control Act, Article 47(5)(ii)). Not missing the window for applying is the first hurdle.
The decision whether to grant permission is made after one of the following: the immigration inspector's finding in the violation examination, the special inquiry officer's determination at the oral hearing, or the Minister of Justice's ruling (Immigration Control Act, Article 50(4)). In making that decision, the factors considered include the reasons for wishing to stay, family relationships, conduct, the period of stay and the person's legal status during that period, and the facts that gave rise to deportation (Article 50(5)).
Why does the spouse's status of residence matter so much?
Because the Guidelines on Special Permission to Stay (revised March 2024, applied from June 10 of the same year) list marriage as a "positive factor to be given particular consideration" only where the spouse is a Japanese national or Special Permanent Resident, or resides under a status listed in Appended Table II of the Immigration Control Act.
The Guidelines provide as follows regarding marriage to a Japanese national or Special Permanent Resident.
「当該外国人が、日本人又は特別永住者と法的に婚姻している場合（退去強制を免れるために、婚姻を偽装し、又は形式的な婚姻届を提出した場合を除く。）であって、夫婦として相当期間共同生活をし、相互に協力して扶助しており、かつ、夫婦の間に子がいるなど婚姻が安定かつ成熟していること」（ガイドライン第2の2(1)ウ）
(Translation: "The foreign national is legally married to a Japanese national or Special Permanent Resident (excluding cases where the marriage was feigned, or a merely formal notification of marriage was submitted, in order to avoid deportation), the couple have lived together as husband and wife for a considerable period and cooperate with and support each other, and the marriage is stable and mature, for example in that the couple have a child.") (Guidelines, Part 2, 2(1)(c) [第2の2(1)ウ])
The Guidelines then set out a factor of the same content for marriage to a person residing under an Appended Table II status (Permanent Resident (永住者), Spouse or Child of Japanese National (日本人の配偶者等), Spouse or Child of Permanent Resident (永住者の配偶者等), Long-Term Resident (定住者)).
「当該外国人が、入管法別表第二に掲げる在留資格で在留している者と法的に婚姻している場合」（ガイドライン第2の2(2)ウ。以下の要件は(1)ウと同じ）
(Translation: "The foreign national is legally married to a person residing under a status of residence listed in Appended Table II of the Immigration Control Act") (Guidelines, Part 2, 2(2)(c) [第2の2(2)ウ]; the remaining requirements are the same as in (1)(c))
By contrast, where the spouse holds an Appended Table I status such as Engineer/Specialist in Humanities/International Services (技術・人文知識・国際業務), Business Manager (経営・管理) or Student (留学), the marriage is not listed among the family-related "positive factors to be given particular consideration." Even when the bond between husband and wife is the same, the starting point of the assessment differs depending on the spouse's status of residence.
| Spouse's residence status | Position under the Guidelines | Examples of status granted if permission is given |
|---|---|---|
| Japanese national / Special Permanent Resident | Positive factor to be given particular consideration (Part 2, 2(1)(c)) | Spouse or Child of Japanese National / Spouse or Child of Permanent Resident |
| Permanent Resident | Positive factor to be given particular consideration (Part 2, 2(2)(c)) | Spouse or Child of Permanent Resident |
| Long-Term Resident / Spouse or Child of Japanese National / Spouse or Child of Permanent Resident | Positive factor to be given particular consideration (Part 2, 2(2)(c)) | Long-Term Resident, etc. |
| Engineer/Specialist in Humanities/International Services, Business Manager, Student, etc. (Appended Table I) | Not listed among the family-related "positive factors to be given particular consideration" | Dependent (家族滞在) (very few grants in the published cases) |
Do the published cases divide according to the spouse's status of residence?
Yes. Even where the offense and the severity of the sentence are similar, the cases line up with permission granted where the spouse is a Permanent Resident, Long-Term Resident or Japanese national, and refused where the spouse holds an Appended Table I status.
| Published case | Person's criminal disposition | Spouse | Outcome |
|---|---|---|---|
| 2024 (令和6年) cases (from June 10) | Road Traffic Act violation; imprisonment (懲役) of 1 year and 2 months, suspended for 3 years | Long-Term Resident | Granted (Long-Term Resident) |
| 2024 cases (from June 10) | Negligent driving causing death; imprisonment without work (禁錮) of 3 years, suspended for 4 years | Engineer/Specialist in Humanities/International Services | Refused |
| 2024 cases (up to June 9) | Immigration Control Act violation (overstay); imprisonment of 2 years and 6 months, suspended for 3 years | Permanent Resident | Granted (Spouse or Child of Permanent Resident) |
| 2024 cases (up to June 9) | Fraud, computer fraud, etc.; imprisonment of 1 year and 6 months, suspended for 3 years | Engineer/Specialist in Humanities/International Services | Refused |
| 2025 (令和7年) cases | Immigration Control Act violation (overstay); imprisonment of 1 year, suspended for 3 years | Permanent Resident | Granted (Spouse or Child of Permanent Resident) |
| 2025 cases | Theft; imprisonment of 1 year and 2 months, not suspended | Japanese national | Granted (proviso to Article 50(1)) |
| 2025 cases | Theft; imprisonment of 1 year and 2 months, not suspended | Long-Term Resident | Granted (proviso to Article 50(1)) |
(Source: Immigration Services Agency of Japan, "Cases in Which Special Permission to Stay Was Granted and Cases in Which It Was Not Granted," 2024 (令和6年) and 2025 (令和7年) editions. Penalty names are as stated at the time and correspond to imprisonment (拘禁刑) under current law.)
Of course, each case differs in the length of the marriage, whether there are children, how the matter came to light and so on, and a single row of the table cannot explain an outcome. Even so, viewed as a whole, the trend is clear. When our office examined the original published cases for 2014 (平成26年) through 2025 (令和7年), there were 8 cases in which the spouse held an Appended Table I status and the person had a criminal disposition (including a suspended sentence), and permission was refused in all of them. Further, in the 3 cases from 2025 in which permission was granted under the proviso to Article 50(1) of the Immigration Control Act despite a sentence that was not suspended, the spouse was a Japanese national or Long-Term Resident, or the person was of Japanese descent and had been born and raised in Japan; none involved a spouse with an Appended Table I status.
Two people may have committed similar offenses and cherish their families equally, yet if the spouse's status remains within Appended Table I, the marriage does not count as a "positive factor to be given particular consideration" under the Guidelines. This is the heart of the problem. Trends by type of offense are set out in detail in [By Offense] An Analysis of 153 Cases in Which Special Permission to Stay Was Granted or Refused.
When does deportation based on a criminal case begin?
Grounds for deportation based on a criminal judgment arise only once the judgment becomes final. For that reason, immigration deportation proceedings generally get fully under way only after the criminal case has ended.
The main grounds for deportation related to criminal dispositions are as follows. The statutory phrases "sentenced to" (処せられた) and "received a judgment of conviction" (有罪の判決を受けた) are applied in practice as referring to a final judgment.
| Provision | Who is covered | Treatment of suspended sentences and fines |
|---|---|---|
| Immigration Control Act, Article 24 item 4-2 | A person residing under an Appended Table I status (Engineer/Specialist in Humanities/International Services, Student, etc.) who is sentenced to imprisonment (拘禁刑) for certain offenses such as theft, fraud or bodily injury | Applies even if the sentence is suspended; does not apply if only a fine is imposed |
| Immigration Control Act, Article 24 item 4 (chi) | A person who receives a judgment of conviction for a violation of drug-related laws | Applies even to a fine or a suspended sentence |
| Immigration Control Act, Article 24 item 4 (ri) | A person sentenced to life imprisonment or imprisonment exceeding 1 year | Excluded where execution of the entire sentence is suspended |
Once the judgment becomes final, the procedure moves forward in this order: an immigration violation investigation, detention under a written detention order or a supervision measure, the application for Special Permission to Stay, and the violation examination. To reach the stage of applying for Special Permission to Stay, one must pass through this entrance, and where the case arises from a criminal matter, that entrance is the judgment becoming final after the first instance, the appeal to the high court (控訴) and the final appeal to the Supreme Court (上告).
Note that in cases of overstay (不法残留) or illegal entry, the fact itself is a ground for deportation without waiting for a judgment. Also, if the person's period of stay expires while the criminal case is pending, overstay becomes a ground for deportation separate from the judgment. Keeping the renewal of the period of stay from lapsing is a precondition for securing time.
How much time can be secured before the judgment becomes final?
It depends on the case, but with appropriate handling at the investigation stage and during the criminal trial, a grace period of several years may be obtained before a ground for deportation arises.
Appealing to the high court and to the Supreme Court is a legitimate right of the defendant. If there are points of fact or sentencing worth contesting, an appeal allows the defendant to seek a better judgment, and at the same time it extends the time until the judgment becomes final. From the standpoint of residence, postponing the point at which the judgment becomes final has a clear practical benefit. In a case where only the defendant has appealed, a heavier sentence than that in the original judgment cannot be imposed (Code of Criminal Procedure Article 402).
Most desirable of all is not to receive a judgment that constitutes a ground for deportation in the first place. For a person with an Appended Table I status, Article 24 item 4-2 of the Immigration Control Act requires that the person be sentenced to imprisonment (拘禁刑), so a non-prosecution or a fine alone does not fall under that item (drug cases fall under item 4 (chi) even with a fine). Defense work at the investigation stage is the first, and the most effective, opportunity to protect one's residence.
What should be done with that time?
Raise the spouse's residence status. The spouse may naturalize and become a Japanese national, or obtain permanent residence and become a Permanent Resident. Either route will do, but at a minimum, one should aim to get as far as permanent residence.
| Step | Goal | Effect under the Guidelines |
|---|---|---|
| Spouse's application for naturalization | The spouse becomes a Japanese national | Falls under Part 2, 2(1)(c) as marriage to a Japanese national |
| Spouse's application for permanent residence | The spouse becomes a Permanent Resident | Falls under Part 2, 2(2)(c) as marriage to a person with an Appended Table II status |
| Building up the substance of the marriage | Records of living together, shared household finances and the care of children | Proof that "the marriage is stable and mature" |
Recently, both naturalization and permanent residence applications have tended to take a long time to process, and if one waits until the criminal case is over before acting, it may be too late. It is important to begin preparing the spouse's application in parallel with the criminal defense from the stage of arrest or indictment. Because naturalization and permanent residence each carry requirements such as length of residence and financial stability, it is necessary to determine at an early stage whether the spouse is in a position to apply.
At the same time, to show that "the marriage is stable and mature" as the Guidelines require, it is essential to keep ongoing records of living together, sharing household finances, and the care and upbringing of children.
Has our office obtained permission using this approach?
Yes. Our office has obtained Special Permission to Stay for a client who had been convicted in a criminal case, by taking the kinds of measures described here. Even in categories where the published cases show few grants, putting the circumstances in order and building the arguments carefully can sometimes open the way.
Our office reads the Immigration Services Agency's published cases as a form of discretionary standard, and takes the position that a disposition departing from them without a reasonable basis should be challenged from the standpoint of the principles of equality and proportionality. That said, outcomes vary with individual circumstances, and we cannot promise that permission will be granted.
When should you consult a lawyer?
Immediately after an arrest, and at the latest before indictment. Whether Special Permission to Stay is obtained is determined to a large extent not after immigration proceedings begin, but by the initial response in the criminal case.
- At the first visit in custody, accurately identify which grounds for deportation may apply
- Through defense work aimed at non-prosecution or a fine, look for a way to keep a ground for deportation from arising at all
- Map out the outlook until the judgment becomes final, and move forward with the spouse's naturalization or permanent residence application in the meantime
- Once immigration proceedings begin, meet the application deadline and prepare arguments measured against the published cases
Even at the stage of "a family member has been arrested" or "I was told I will be deported once the judgment is handed down," there are still steps that can be taken. Please do not give up, and consult us as early as possible. See also Consulting a Lawyer About Deportation and Removal for the immigration proceedings stage, Consulting a Lawyer About Supervision Measures for what to do during detention, and When a Foreign National Should Consult a Lawyer in a Criminal Case for the initial response in a criminal case.
Frequently Asked Questions
Q1. Can I apply for Special Permission to Stay myself?
Yes. However, only after you have been detained under a written detention order or have received a supervision measure decision (Immigration Control Act, Article 50(2)). No application can be made after a written deportation order has been issued (Article 50(3)).
Q2. If my spouse holds Engineer/Specialist in Humanities/International Services status, will permission be refused?
In cases without a criminal disposition, there are examples of permission being granted. However, in cases where the person has a criminal disposition, no examples of permission can be found in the published cases from 2014 (平成26年) through 2025 (令和7年). It is well worth considering permanent residence or naturalization for the spouse before the judgment becomes final.
Q3. If the sentence is suspended, doesn't that mean I won't be deported?
That depends on the status of residence. A person with an Appended Table I status such as Engineer/Specialist in Humanities/International Services or Student falls under the grounds for deportation if sentenced to imprisonment (拘禁刑) for certain offenses such as theft, fraud or bodily injury, even if the sentence is suspended (Immigration Control Act, Article 24 item 4-2). Drug cases fall under the grounds even with a fine (Article 24 item 4 (chi)).
Q4. Won't appealing to the high court or the Supreme Court work against me?
In a case where only the defendant has appealed, a heavier sentence than that in the original judgment cannot be imposed (Code of Criminal Procedure Article 402). An appeal is a legitimate right of the defendant, and if there are points of fact or sentencing to contest, it serves both to seek a better judgment and to secure time until the judgment becomes final.
Q5. Should my spouse aim for naturalization or permanent residence?
Either will do. Naturalization makes the marriage one with a Japanese national, and permanent residence makes it one with a person holding an Appended Table II status; both count as a "positive factor to be given particular consideration" under the Guidelines. The realistic choice is whichever the spouse can reach more quickly and reliably, in light of the spouse's residence history and whether the requirements are met.
Q6. Once a written deportation order has been issued, is there nothing more that can be done?
An application for Special Permission to Stay can no longer be made (Immigration Control Act, Article 50(3)), but other measures, such as an action to revoke the written deportation order or a petition for a stay of execution, may be available. Please also see Can You Be Deported While Your Lawsuit Is Pending?
This article is a general explanation and does not guarantee the outcome of any individual case. We will explain the specific outlook after hearing the details of your situation.
Last updated: October 11, 2026
Funado International Law Office
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