Maintaining a lawful status of residence and adhering to the authorized period of stay are fundamental obligations for foreign nationals in Japan. Overstaying a visa—that is, remaining in Japan beyond the permitted period without obtaining an extension or a change of status—is a serious violation of Japan's Immigration Control and Refugee Recognition Act (ICRRA). This act, commonly referred to as "illegal stay" (不法残留 - fuhō zanryū), carries significant legal consequences, including criminal penalties and administrative sanctions such as deportation. This article details the offense of illegal stay under Article 70, Paragraph 1, Item 5 of the ICRRA, the applicable penalties, and related procedures and considerations.

Defining Illegal Stay (Overstaying)

The offense of illegal stay is primarily defined by a foreign national's failure to depart Japan or regularize their status before their authorized period of stay expires. Article 70, Paragraph 1, Item 5 of the ICRRA penalizes:
"A person who remains in Japan beyond the period of stay authorized (including the period for which he/she may reside in Japan pursuant to the provisions of Article 20, paragraph (5) (including the cases where it is applied mutatis mutandis pursuant to Article 21, paragraph (4))) without receiving an extension of the period of stay or a change of status of residence."

Key elements of this definition include:

1. "Remains in Japan beyond the period of stay authorized": Every foreign national granted a status of residence (other than permanent residence) is given a specific period during which they are permitted to stay. Remaining beyond the final day of this period constitutes an overstay.
2. "Without receiving an extension of the period of stay or a change of status of residence": If a foreign national has applied for an extension (Article 21) or a change of status (Article 20) before their current period expires, and a decision is still pending, they may be covered by a special "grace period."
3. Consideration of the "Grace Period" during Application Processing: The parenthetical reference to "Article 20, paragraph (5) (including the cases where it is applied mutatis mutandis pursuant to Article 21, paragraph (4))" is crucial. These provisions allow a foreign national who has timely applied for a change of status or extension of period of stay to continue residing in Japan under their previous status until a decision is made on their application, or until two months have passed from the original expiration date, whichever is earlier (this does not apply to those with an initial period of stay of 30 days or less). An individual only falls into illegal stay if they remain beyond this grace period without permission.
4. Intent (故意 - koi): For criminal liability under Article 70, Paragraph 1, Item 5, the act of overstaying generally requires intent (koi). This means the foreign national must be aware that their authorized period of stay has expired and they lack permission to remain, yet they consciously choose to stay. Accidental overstaying due to a genuine misunderstanding or unavoidable circumstances where the individual immediately takes steps to rectify the situation might be viewed differently, though it could still trigger administrative consequences like deportation. The burden of proving lack of intent, however, can be challenging.

The clock for illegal stay typically starts ticking from the day after the authorized period of stay (or the grace period, if applicable) expires.

Criminal Penalties for Illegal Stay (Article 70, Paragraph 1, Item 5)

The ICRRA prescribes severe criminal penalties for illegal stay:
Imprisonment with or without work for not more than 3 years OR a fine not exceeding 3 million yen.

Furthermore, similar to illegal entry and illegal landing, the law permits both imprisonment and a fine to be imposed concurrently.

These penalties reflect a legislative intent to strictly control periods of stay and deter overstaying, which is considered a significant challenge to the integrity of the immigration system. The penalties were notably strengthened by amendments in 1999.

It's important to note that, unlike illegal entry or landing, the ICRRA does not explicitly provide for the punishment of attempt, preparation, incitement, or aiding/abetting for the offense of illegal stay itself under Article 70. However, individuals or organizations that knowingly harbor or assist overstayers may face charges under other provisions, such as those related to promoting illegal employment (Article 73-2) or assisting illegal stay (Article 74-6, if done for profit).

Administrative Sanction: Deportation (Article 24, Item 4(b))

In addition to criminal prosecution, overstaying one's authorized period of stay is a direct ground for deportation under Article 24, Item 4(b) of the ICRRA. This states that a foreign national (residing in Japan under a status of residence, excluding certain temporary landing permissions) "who remains in Japan over the period of stay authorized for him/her without receiving an extension or change thereof" is deportable.

Therefore, a foreign national found to be illegally staying in Japan faces both the prospect of criminal penalties and administrative removal from the country. Often, deportation proceedings will commence, and the individual may be detained pending these proceedings.

Mitigating Systems and Special Considerations

While the approach to illegal stay is generally strict, the ICRRA incorporates systems that can, under specific conditions, offer alternatives or leniency:

1. Departure Order System (Article 24-3)

As discussed in a previous article in this series, the Departure Order system provides a less punitive alternative to formal deportation for certain categories of overstayers who meet strict eligibility criteria. These include:

• Voluntarily appearing at an immigration office with the intent to depart promptly.
• Not having other serious grounds for deportation (e.g., serious criminal convictions, past deportation history).
• Being deemed certain to depart Japan swiftly.

If eligible for a Departure Order, the foreign national is generally not detained, and the re-entry ban period after departure is significantly shorter (typically 1 year) compared to formal deportation (typically 5 or 10 years). This system is designed to encourage self-reporting and voluntary departure by overstayers who are not considered high-risk.

2. Exemption from Punishment for Refugees (Article 70-2)

Article 70-2 of the ICRRA, which allows for a discretionary exemption from punishment for illegal entry or landing for qualifying refugees, also extends this potential exemption to the offense of illegal stay (Article 70, Paragraph 1, Item 5). The conditions are the same:

• The person must have entered Japan directly from a territory where their life, body, or physical liberty was threatened for reasons prescribed in the Refugee Convention.
• They must have presented themselves without delay to the authorities after entering Japan or after becoming aware of their illegal stay, explaining the reasons.
• They must have applied for refugee status.

If these conditions are met, the authorities may exempt the individual from criminal punishment for their illegal stay. This acknowledges that refugees may be forced into an irregular status due to their flight from persecution and their need to seek protection.

3. Special Permission to Stay (Article 50)

Even if an overstayer is subject to deportation proceedings and does not qualify for a Departure Order, there remains a final discretionary possibility of being granted "Special Permission to Stay" by the Minister of Justice. This is considered on a case-by-case basis, taking into account various factors such as family ties in Japan (especially with Japanese nationals or permanent residents), humanitarian concerns, length of residence, and past conduct. While overstaying is a negative factor, compelling positive circumstances can sometimes lead to this exceptional permission.

Practical Implications and Preventive Measures

The consequences of overstaying a visa in Japan are severe and can have long-lasting effects:

• Criminal Record: A conviction for illegal stay results in a criminal record in Japan.
• Deportation and Re-entry Ban: This significantly impacts any future ability to enter Japan for business, tourism, or family reasons.
• Difficulties in Future Visa Applications to Other Countries: A record of deportation or serious immigration violations in Japan can negatively affect visa applications to other countries that share immigration information.
• Social and Economic Hardships: Individuals in an illegal stay status often live in a precarious situation, unable to access regular employment, healthcare, or social services, and are vulnerable to exploitation.

For Foreign Nationals:

• Diligent Management of Period of Stay: It is the individual's responsibility to be aware of their period of stay expiration date and to apply for an extension or change of status well in advance if they wish to continue residing in Japan.
• Prompt Action if Nearing Expiry: Do not wait until the last minute. Start preparing for renewal or change of status applications at least 3 months before the current period expires.
• Understanding the Grace Period: If an application is filed on time, be aware of the two-month grace period that allows continued stay while awaiting a decision, but also understand its limits.
• Seeking Legal Advice: If facing a potential overstay situation or if unsure about immigration procedures, seeking advice from an immigration lawyer or a certified administrative procedures legal specialist (gyoseishoshi) is highly recommended.

For Employers:

• Thorough Verification of Employees' Status: Employers have a responsibility to ensure their foreign employees maintain a valid status of residence and period of stay. Failure to do so can lead to penalties for the employer for promoting illegal employment.
• Implementing Internal Tracking Systems: Companies employing foreign nationals should have robust systems for tracking visa expiration dates and reminding employees to initiate renewal procedures in a timely manner.
• Supporting Employees with Renewal Processes: Providing necessary documentation (e.g., employment certificates) and allowing time off for immigration procedures can help employees stay compliant.

Conclusion

Overstaying a visa, or illegal stay, is a serious offense under Japanese law, punishable by imprisonment, fines, and deportation, along with a subsequent ban on re-entering Japan. While the ICRRA provides for a "grace period" during the processing of timely extension or change of status applications, and offers potential avenues for leniency such as the Departure Order system for certain self-reporting overstayers or exemptions for qualifying refugees, the fundamental expectation is strict adherence to authorized periods of stay. Both foreign nationals and their employers must prioritize diligent management of immigration statuses to prevent the severe legal and personal repercussions associated with illegal stay in Japan.