Employing foreign nationals in Japan comes with a set of legal obligations designed to ensure the integrity of the country's immigration and labor systems. A particularly serious offense is "promoting illegal work" (不法就労助長罪 - fuhō shūrō jochōzai), which carries significant consequences for both foreign and Japanese employers, as well as for foreign nationals who facilitate such activities. These consequences can range from deportation for the foreign national promoter to substantial criminal penalties, including fines and imprisonment, for any individual or entity involved. Understanding the scope of these provisions and the expected level of due diligence is critical for any business operating in Japan.

What Constitutes "Illegal Work" by Foreign Nationals in Japan?

Before examining the act of promoting illegal work, it's essential to define what "illegal work" (fuhō shūrō) entails under Japan's Immigration Control and Refugee Recognition Act (hereinafter "Immigration Control Act"). Generally, it refers to situations where a foreign national engages in remunerative activities:

1. Outside the Scope of Their Status of Residence: Foreign nationals are granted a specific "status of residence" (e.g., "Engineer," "Student," "Dependent") that dictates the types of activities they are permitted to undertake. Engaging in income-generating work not covered by this status without specific permission is illegal (violation of Article 19, Paragraph 1).
2. Without Proper Work Authorization: Some statuses, like "Temporary Visitor" or, by default, "Student" and "Dependent," do not permit remunerative work. Engaging in such work without obtaining "Permission to Engage in an Activity Other Than That Permitted under the Status of Residence Previously Granted" (資格外活動許可 - shikakugai katsudō kyoka) is illegal.
3. While in an Illegal Status: This includes individuals who have overstayed their permitted period of stay, entered Japan illegally, or had their status of residence revoked. Any work undertaken in such circumstances is illegal.

The Immigration Control Act broadly defines "illegal work activities" in Article 24, item 3-4(a) (a ground for deportation) as activities violating Article 19, Paragraph 1, or remunerative activities conducted by individuals falling under certain categories of illegal entry or stay as defined in Article 70, Paragraph 1 (penalties).

Promoting Illegal Work: A Ground for Deportation (for Foreign Employers/Managers - Article 24, item 3-4(a))

For foreign nationals who are themselves residing in Japan and are involved in promoting illegal work by other foreign nationals in connection with their business activities, the Immigration Control Act provides for deportation. Article 24, item 3-4(a) lists as deportable: "A foreign national who, in connection with his/her business activities, has caused another foreign national to engage in illegal work activities."

Several court cases have shed light on the interpretation of this provision:

• Scope of "Causing to Engage": The term 「させること」(saseru koto - causing to engage) is interpreted broadly. It's not limited to direct employment but can include facilitation and creating an environment where illegal work occurs. For instance, the Tokyo District Court on April 16, 2015 (Heisei 25 (Gyo-U) No. 287), found a foreign national deportable for knowingly hiring Chinese students for illegal work in an adult entertainment business they managed. Similarly, a manager of a snack bar who repeatedly hired hostesses without valid work authorization, sourced through an agent without verifying their status, was also found to be promoting illegal work (Tokyo District Court, December 5, 2014).
• Employer's Awareness/Intent:
  The question of an employer's knowledge or intent regarding the illegality of the work is crucial. While criminal law often requires a high degree of intent, the threshold for this administrative deportation ground may be different. The Tokyo District Court on February 12, 2014 (Heisei 25 (Gyo-U) No. 138, 587), suggested that for deportation, which is an administrative disposition, the objective fact of promoting illegal work might suffice. The court noted that Article 73-2, Paragraph 2 (the criminal penalty provision for negligent promotion of illegal work, discussed later) does address situations of unknowing facilitation if there's no gross negligence. This implies that for deportation purposes, a lack of diligent verification could be problematic.
  Indeed, other cases underscore that a lack of due diligence or willful blindness can lead to a finding of promoting illegal work. The Tokyo District Court on May 28, 2015 (Heisei 26 (Gyo-U) No. 344), involved an employer who kept records of residence cards for legally working employees but not for others. Given the employer's own past history of illegal work and deportations, the court inferred either direct knowledge of the illegal work of some employees or, at least, gross negligence in failing to confirm their status. The Tokyo District Court on February 7, 2012 (Heisei 23 (Gyo-U) No. 200), found an employer culpable where, for some employees on "Temporary Visitor" status, the employer clearly knew their work was illegal, and for others with different statuses, the employer should have recognized the high probability of their work being unauthorized when (or if) their status was checked.
• Single vs. Repeated Acts:
  The Tokyo District Court on February 28, 2014 (Heisei 24 (Gyo-U) No. 757, Heisei 25 (Gyo-U) No. 211), addressed an argument that, similar to some penal provisions, this deportation ground should only apply to repetitive or long-term promotion of illegal work. The court rejected this, noting that Article 24, item 3-4(a) lacks specific wording like "as a business" (「業として」 - gyō to shite), which is found in other deportation grounds (e.g., item 3-4(c) concerning promoting illegal entry as a business). Therefore, a single act of "causing" another foreign national to engage in illegal work can be sufficient to trigger this deportation ground.

The Tokyo District Court on May 28, 2015 (Heisei 26 (Gyo-U) No. 344), also emphasized the broader negative impacts of promoting illegal work, stating that it not only undermines the core of Japan's immigration control policy, which heavily regulates foreign labor, but also risks adverse social and economic consequences and can lead to human rights issues such as discriminatory treatment of foreign workers.

Criminal Penalties for Promoting Illegal Work (Article 73-2 of the Immigration Control Act)

Separate from the administrative measure of deportation (which applies to foreign promoters), Article 73-2 of the Immigration Control Act establishes criminal penalties for anyone—whether Japanese or foreign, individual or corporation—who promotes illegal work. These penalties can include imprisonment with work for up to three years, a fine of up to three million yen, or both.

Article 73-2, Paragraph 1, outlines three primary prohibited acts:

1. Causing a foreign national to engage in illegal work activities in connection with one's business activities (Item (i)). This directly mirrors the deportation ground for foreign promoters but applies criminally to anyone.
2. Placing a foreign national under one's control for the purpose of causing that foreign national to engage in illegal work activities (Item (ii)). This targets more exploitative situations. The Tokyo High Court on November 11, 1993 (Heisei 5 (U) No. 751), interpreted "placing under one's control" to include exerting psychological or economic influence that makes it difficult for the foreign national to leave, such as by confiscating passports, imposing large debts, or controlling all earnings from forced prostitution.
3. Mediating or referring (斡旋 - assen) a foreign national to others for illegal work as a business (Item (iii)). This targets brokers and intermediaries who profit from connecting illegal workers with employers. The Fukuoka District Court, Kokura Branch, on May 25, 2016 (Heisei 28 (Wa) No. 95), found language school staff criminally liable under this provision for systematically introducing numerous students to multiple jobs, thereby facilitating their illegal work.

A crucial aspect of Article 73-2 is Paragraph 2. This provision states that a person who commits an act described in Paragraph 1, Item (i) (causing illegal work) or Item (iii) (mediating illegal work as a business) without knowing that the foreign national's activities were illegal (e.g., being unaware of the foreign national's specific visa status or lack of work permission) can still be punished if they were not grossly negligent in failing to ascertain these facts. This effectively establishes a duty of care for employers to verify the work eligibility of foreign nationals. Simple ignorance is not a defense if reasonable steps to check were not taken.

The Supreme Court (Third Petty Bench) on March 18, 1997 (Heisei 6 (A) No. 1214), ruled that if an employer causes multiple foreign nationals to engage in illegal work in connection with the same business activity, the offense under Article 73-2, Paragraph 1, Item (i) is established for each foreign national involved, and these offenses are treated as cumulative crimes (併合罪 - heigōzai), potentially leading to more severe overall penalties.

Employer's Responsibility: Verification of Status and Work Authorization

The structure of Article 73-2(2) and various court interpretations implicitly but clearly place a burden of due diligence on employers. To avoid both criminal liability and, for foreign employers, the risk of deportation for promoting illegal work, businesses must implement robust verification procedures when hiring foreign nationals. These typically involve:

1. Checking the Original Residence Card (在留カード - Zairyū Kādo): Employers must ask to see the prospective employee's original Residence Card. Photocopies are not sufficient for verification, as they can be altered.
2. Confirming Key Information:
   • Status of Residence: Does the status permit work (e.g., "Engineer/Specialist in Humanities/International Services," "Permanent Resident," "Spouse of Japanese National")? Some statuses like "Student," "Dependent," or "Cultural Activities" generally do not allow work unless separate permission is obtained.
   • Period of Stay: Is the status currently valid and not expired?
   • Work Restrictions: The card may explicitly state "Employment Not Permitted" or "Employment Permitted as Designated by Specific Document."
3. Verifying Permission for Other Activities (資格外活動許可): If the primary status does not permit work (e.g., "Student," "Dependent"), the employer must check for a "Permission to Engage in an Activity Other Than That Permitted" stamp or sticker, usually on the Residence Card or passport. This permission will specify conditions, such as a maximum number of hours per week (commonly 28 hours for students).
4. Clarifying Scope of Work for "Designated Activities" (特定活動 - Tokutei Katsudō): This is a versatile category, and the permitted activities are specified individually in a "Designation Paper" (指定書 - shiteisho) attached to the passport. Employers must check this paper.
5. Keeping Records: It is advisable for employers to keep records of the verifications made (e.g., a copy of the relevant parts of the Residence Card after confirming the original, noting the date of verification).

Failure to take these reasonable steps can be construed as negligence, potentially leading to criminal liability under Article 73-2, Paragraph 2, even if the employer did not have direct knowledge of the illegality. Cases like the Tokyo District Court, February 7, 2012 (Heisei 23 (Gyo-U) No. 200), where an employer was deemed culpable for not recognizing the high probability of unauthorized work for some employees, underscore this point.

Broader Implications for Businesses

Beyond the direct legal penalties, engaging in or facilitating illegal work can have other significant negative consequences for businesses:

• Reputational Damage: Being associated with illegal employment practices can severely harm a company's reputation among customers, business partners, and the wider community.
• Administrative Sanctions: Companies found to have employed illegal workers may face difficulties in sponsoring new foreign employees in the future.
• Business Disruption: If employees are found to be working illegally, they will be unable to continue, leading to operational disruptions. If key managerial staff (including foreign nationals) are penalized or deported for promoting illegal work, this can have an even greater impact.
• Ethical Sourcing and Supply Chain Integrity: For international companies, particularly those with strong corporate social responsibility commitments, ensuring that their Japanese operations (and those of their suppliers) are free from illegal labor practices is vital.

Therefore, implementing robust internal compliance programs, including thorough training for HR personnel and hiring managers on the correct procedures for verifying the status and work eligibility of foreign nationals, is a critical risk management strategy.

Conclusion

The Japanese government takes a firm stance against illegal work by foreign nationals and, importantly, against those who promote or facilitate such activities. The Immigration Control Act provides for both the deportation of foreign nationals who cause others to engage in illegal work in connection with their business, and separate criminal penalties under Article 73-2 for any employer—Japanese or foreign—who does so. The latter provision extends to situations of negligence, meaning that employers cannot simply claim ignorance if they failed to take reasonable steps to verify a foreign employee's work authorization. The consistent message from court decisions is that a high degree of diligence is expected. For businesses operating in Japan, rigorous adherence to verification procedures for all foreign employees is not just good practice but a legal imperative to avoid severe penalties and maintain lawful operations.