When a foreign national in Japan is found to fall under grounds for deportation, the standard procedure under the Immigration Control and Refugee Recognition Act (ICRRA) leads to their removal from the country. However, the Act also provides a crucial discretionary measure known as "Special Permission to Stay" (在留特別許可 - zairyū tokubetsu kyoka). This permission, outlined in Article 50 of the ICRRA, allows the Minister of Justice to grant continued residence to a foreign national even if they are legally deportable, based on a comprehensive consideration of their individual circumstances. This article explores the nature of Special Permission to Stay, the specific grounds upon which it can be granted, the factors considered by the Minister, and its significance within Japan's deportation framework.

The Context: A Last Resort in Deportation Proceedings

Special Permission to Stay is typically considered at the final stage of deportation proceedings. The process usually unfolds as follows:

1. An Immigration Control Officer investigates a suspected immigration violation.
2. If grounds for deportation are suspected, the foreign national may be detained, and their case is referred to an Immigration Inspector for an examination.
3. The Immigration Inspector determines if the foreign national is deportable.
4. If found deportable, the foreign national can request an oral hearing before a Special Inquiry Officer.
5. If the Special Inquiry Officer also upholds the finding of deportability, the foreign national can file an objection with the Minister of Justice within three days of being notified of the decision.

It is when the Minister of Justice is adjudicating this objection that Special Permission to Stay under Article 50 comes into play. Even if the Minister finds that the objection itself is legally without merit (i.e., grounds for deportation do exist), the Minister can still choose to grant permission for the foreign national to remain in Japan.

This system reflects a recognition that strict application of deportation rules might lead to unduly harsh outcomes in certain cases, and it provides a mechanism for exercising humanitarian consideration or addressing compelling individual circumstances. Importantly, the decision to grant Special Permission to Stay is highly discretionary and is not subject to the formal procedures of the Administrative Procedure Act (Act No. 88 of 1993), as per Article 3, Paragraph 1, Item 9 of that Act.

Grounds for Granting Special Permission to Stay (Article 50, Paragraph 1)

Article 50, Paragraph 1 of the ICRRA specifies the conditions under which the Minister of Justice may grant this special permission, even when an objection against a deportation finding is deemed unfounded:
"In making an adjudication on an objection filed as set forth in the preceding Article, the Minister of Justice may, even when he/she finds that said objection is without merit, grant special permission for the suspect to stay in Japan if said suspect falls under any of the following items and the Minister finds that there are circumstances under which the suspect should be granted special permission to stay:
(i) When the suspect has received permission for permanent residence.
(ii) When the suspect has previously had a registered domicile in Japan as a Japanese national.
(iii) When the suspect has entered Japan under the control of another person due to human trafficking or other similar acts.
(iv) When the Minister of Justice finds that there are other special circumstances under which the suspect should be granted special permission to stay."

Let's examine these grounds:

1. Holder of Permanent Residence (Item 1): This item refers to individuals who have already been granted permanent resident status. It might seem contradictory, as permanent residents are generally less likely to become deportable. However, even permanent residents can be deported for certain serious crimes or grave violations of law. If such a deportable permanent resident files an objection, this item allows the Minister to consider granting Special Permission to Stay, effectively allowing them to retain a form of legal residence despite the deportation ground. The practical application might be limited, as the initial decision to deport a permanent resident would already involve serious considerations.
2. Former Japanese National with Registered Domicile (Item 2): This applies to individuals who were once Japanese nationals and had a registered family domicile (honseki) in Japan. This acknowledges a historical connection to Japan and allows for a more lenient consideration.
3. Victim of Human Trafficking (Item 3): Added by the 2005 amendments, this provision explicitly addresses the protection needs of victims of human trafficking. If a foreign national is found to be in Japan under the control of others due to trafficking, this ground allows the Minister to grant them permission to stay, irrespective of other immigration violations that might have resulted from their trafficked situation. This is a critical humanitarian safeguard.
4. Other Special Circumstances (Item 4): This is by far the most frequently invoked and broadly interpreted ground. It grants the Minister of Justice wide discretion to consider any other special circumstances that might warrant permission to stay. The determination of what constitutes "other special circumstances" is not exhaustively defined in the law itself but is guided by administrative practice and published guidelines.

The "Guidelines for Special Permission to Stay"

To provide transparency and consistency in exercising the broad discretion under Item 4, the Ministry of Justice established "Guidelines for Special Permission to Stay" (在留特別許可に係るガイドライン - Zairyū Tokubetsu Kyoka ni Kakaru Gaidorain). These guidelines were first issued in 2006 and revised in 2009. They outline various positive and negative factors that the Minister of Justice will consider when making a decision.

Positive Factors (Considerations in favor of granting permission):

• Reasons for Wishing to Stay: The specific reasons why the foreign national wishes to remain in Japan.
• Family Situation:
  • Marriage to a Japanese national or a foreign national with permanent or special permanent residence status, particularly if the marriage is genuine and stable.
  • Raising minor children who are Japanese nationals or have strong ties to Japan (e.g., long-term schooling).
  • Other close family relationships with Japanese nationals or long-term residents.
• Length of Residence in Japan: A long period of lawful (or even unlawful, in some contexts) residence can contribute to an assessment of established ties.
• Humanitarian Considerations: This is a broad category that can include:
  • Serious illness requiring ongoing medical treatment in Japan.
  • Risk of persecution or severe hardship if returned to the country of origin (though this might also be addressed through refugee status determination or complementary protection).
  • Other compassionate circumstances.
• Conduct: Whether the foreign national has generally been law-abiding (apart from the immigration violation leading to deportation proceedings).
• Degree of Integration into Japanese Society: Factors like Japanese language ability, employment history, community involvement, and cultural assimilation.
• Cooperation with Immigration Authorities: Voluntary surrender or sincere cooperation during investigations can be viewed favorably.

Negative Factors (Considerations against granting permission):

• Nature and Manner of Immigration Violation:
  • Illegal entry, use of forged passports or documents.
  • Previous deportation history or departure under a departure order.
  • Nature and duration of illegal stay or unauthorized activities.
• Criminal Record: Convictions for serious crimes, repeated offenses, or involvement in organized crime are strong negative factors.
• Anti-social Behavior: Any conduct that threatens public order or safety.
• Impact on Domestic or International Situation: Broader considerations related to national security or diplomatic relations.
• False Statements or Non-Cooperation during Proceedings: Lack of candor or obstruction of immigration procedures.

The Minister of Justice weighs these positive and negative factors comprehensively to make a holistic judgment on whether "special circumstances" warrant overriding the grounds for deportation.

Method of Permission and Effect (Article 50, Paragraph 2)

If the Minister of Justice decides to grant Special Permission to Stay:

1. The Minister shall determine the status of residence and period of stay for the foreign national.
2. This decision to grant Special Permission to Stay is deemed to be an adjudication that the objection filed by the foreign national was well-grounded for the purpose of applying Article 49, Paragraph 5 (which relates to the issuance of a Residence Card or other documentation upon a favorable decision on an objection).

This means that when Special Permission to Stay is granted, the foreign national is not only allowed to remain in Japan but is also granted a specific, lawful status of residence (e.g., "Long-Term Resident," "Spouse or Child of Japanese National," etc.) with a defined period of stay. A new Residence Card is typically issued, and the permission becomes effective upon its issuance or the relevant endorsement in their passport if applicable. This formalizes their legal status and allows them to reside and engage in activities within the scope of the newly granted status.

Consideration for Refugee Applicants (Article 50, Paragraph 3)

If the foreign national subject to deportation proceedings has also applied for recognition of refugee status, and that application is still pending, Article 50, Paragraph 3 allows the Minister of Justice to refrain from making an adjudication on the objection (including a decision on Special Permission to Stay) until a decision has been made on the refugee application. This provision aims to ensure that a potential refugee claim is properly assessed before a final decision on deportation or special permission to stay is made.

Judicial Review

The decision of the Minister of Justice regarding Special Permission to Stay is subject to judicial review through administrative litigation. However, courts generally afford the Minister very broad discretion in these matters, given the inherent policy considerations involved in immigration control. Judicial review is typically limited to examining whether the Minister's decision involved a serious misapprehension of material facts, a clearly erroneous assessment of facts, or was so unreasonable as to constitute an abuse of discretion. Courts are generally reluctant to substitute their own judgment for that of the Minister unless such a clear defect in the decision-making process is evident. The standard of review is typically focused on whether the decision deviated from or abused the scope of discretion, rather than re-evaluating the merits of granting the permission itself.

Conclusion

Special Permission to Stay under Article 50 of the ICRRA is a critical discretionary measure within Japan's deportation framework. It provides a final opportunity for foreign nationals facing deportation to be granted permission to continue residing in Japan based on a comprehensive evaluation of their individual circumstances, guided by specific statutory grounds and administrative guidelines. While the explicit grounds related to permanent residence, former Japanese nationality, and human trafficking victims offer clear pathways in specific situations, the "other special circumstances" clause, interpreted through published guidelines, forms the basis for most decisions. This clause allows the Minister of Justice to weigh various positive factors (such as strong family ties to Japan, long residence, humanitarian needs, and good conduct) against negative factors (such as the nature of the immigration violation and criminal history). Although the Minister's discretion is broad, and judicial review is limited, this system introduces an element of flexibility and humanitarian consideration into an otherwise strict deportation regime, aiming to achieve a just outcome in complex individual cases.