What Legal Recourse Does a Foreign National Have Against a Deportation Order in Japan?

Japanese Attorney at Law - Bengoshi L.L.

• 6 min read

Like all sovereign nations, Japan possesses the authority to control its borders and remove foreign nationals who have violated its immigration laws. The process is governed by the Immigration Control and Refugee Recognition Act (Nyūkan-hō), which grants significant power to the Minister of Justice and the Immigration Services Agency.

However, this power is not absolute. The Act also provides a multi-stage system of administrative review and, crucially, access to the courts for foreign nationals facing a deportation order (退去強制令書, taikyo kyōsei reisho). A legal challenge often becomes a complex and high-stakes battle, balancing the state's authority against profound humanitarian considerations, such as family unity and deep connections to Japan.

This article provides an overview of the legal framework for challenging a deportation order in Japan. It will explain the administrative process, detail the typical litigation strategy, and analyze the two primary grounds for a legal challenge: a substantive claim that the government abused its discretion by denying Special Permission to Stay, and a procedural claim that the order was issued in violation of the foreign national's legal rights.

The Japanese Deportation Process: A Multi-Stage System

Before a deportation order is issued, a foreign national is entitled to several layers of administrative review. Understanding this process is key to identifying points where a legal challenge can be mounted.

  1. Investigation and Examination: The process begins with an investigation by an immigration control officer, which leads to an examination by an immigration inspector who determines if the individual is legally deportable under one of the categories listed in Article 24 of the Immigration Control Act (e.g., overstaying a visa, illegal entry).
  2. Right to a Hearing: If the inspector finds the person deportable, the individual has the right to a formal oral hearing before a special inquiry officer to contest the finding.
  3. Objection to the Minister of Justice: If the special inquiry officer also upholds the finding, the individual can file a final administrative appeal, known as an "objection" (異議の申出, igi no mōshide), directly to the Minister of Justice.
  4. The Minister's Decision and Deportation Order: The Minister then makes a final decision (saiketsu). If the objection is denied, a supervising immigration inspector issues the final deportation order.

It is this final order that is typically the subject of a lawsuit.

The most critical element in almost all deportation-related litigation is a unique discretionary power held by the Minister of Justice known as Special Permission to Stay (在留特別許可, zairyū tokubetsu kyoka), often shortened to zaitoku.

Under Article 50 of the Immigration Control Act, even if the Minister determines that a foreign national is legally deportable, the Minister has the authority to grant special permission for them to remain in Japan. This is not a right but a "benevolent measure" (恩恵的措置, onkei-teki sochi) based entirely on the Minister's discretion. This is the primary avenue for relief on humanitarian grounds.

The Minister's Broad Discretion and the "Zaitoku Guidelines"

The scope of the Minister's discretion is vast. The Supreme Court's landmark decision in McLean v. Minister of Justice (October 4, 1978) affirmed that courts should be highly deferential to the Minister's policy judgments in immigration matters.

To guide this discretion, the Ministry of Justice has publicly issued the "Guidelines on Special Permission to Stay." These are not legally binding laws, but they provide a crucial framework that both the Ministry and the courts use to analyze cases. The guidelines list positive and negative factors to be weighed against each other.

  • Positive Factors (Factors in favor of granting permission):
    • Having a Japanese spouse or child.
    • Being the primary caregiver for a child who has deep roots in Japan (e.g., was born or raised in Japan and is attending a Japanese school).
    • Long-term residence in Japan.
    • Other special humanitarian circumstances (e.g., severe illness requiring treatment in Japan, being a victim of human trafficking).
  • Negative Factors (Factors against granting permission):
    • Having a serious criminal record in Japan.
    • The method of entry (e.g., use of fraudulent documents).
    • Past violations of immigration law.
    • Activities that could harm public order or national security.

The outcome of a case often depends on which set of factors is deemed to outweigh the other.

The Litigation Strategy: A Two-Part Lawsuit

When a foreign national decides to challenge a deportation order in court, the standard strategy involves filing a lawsuit with two distinct but related claims.

1. A Lawsuit to Revoke the Deportation Order: The first claim is a standard revocation lawsuit (取消訴訟, torikeshi soshō), which asks the court to nullify the deportation order itself.

2. An Action to Compel Special Permission to Stay: The second, and often more pivotal, claim is an Action for an Order of Performance (義務付け訴訟, gimuzuke soshō). This lawsuit asks the court to order the Minister of Justice to grant Special Permission to Stay. Because there is no formal "application" process for zaitoku (it is considered during the objection stage), this is legally classified as a "non-application-type" lawsuit, which has its own specific procedural requirements.

Arguing the Case in Court: Substantive and Procedural Challenges

A successful legal challenge can be based on either substantive or procedural grounds.

The Substantive Challenge: Abuse of Discretion

This is the most common type of challenge. The plaintiff argues that the Minister of Justice's decision to deny Special Permission to Stay was an abuse of discretion. The goal is to convince the court that, based on the facts, the Minister's decision was so unreasonable that it was "grossly lacking in social appropriateness."

Consider the case of a Peruvian family where the parents entered Japan on fraudulent passports but have a young child who was born and is being raised in Japan. The legal argument would be:

  • Acknowledge the Negative Factors: The parents' method of entry and subsequent illegal residence are clear negative factors.
  • Emphasize the Positive Factors: The central argument would focus on the best interests of the Japan-born child. Forcing the child, a Japanese elementary school student with no connection to Peru and who speaks only Japanese, to move to a foreign country would cause immense hardship. This powerful humanitarian concern, a key positive factor in the Ministry's own guidelines, must be given significant weight.
  • The Balancing Test: The core of the argument is that the positive factors—namely, the profound humanitarian need to protect the well-being of the child—heavily outweigh the negative factors of the parents' past immigration violations. A decision that prioritizes the parents' past actions over the child's present and future well-being is arguably an abuse of the Minister's discretion.

A deportation order can also be overturned if it was issued in violation of the foreign national's procedural rights. Consider a second case: a man born in Thailand to refugee parents is issued a deportation order sending him to Vietnam, a country where he has never lived.

  • The Invalid Waiver of Rights: The man waived his right to a formal hearing because he was led to believe he would be sent to his "home country," which he understood to be Thailand. When the deportation order specified Vietnam, it became clear his waiver was not knowing and voluntary.
  • The Government's Duty of Care: The legal principle here is that an administrative body has a duty to ensure that when a person waives a fundamental procedural right, such as the right to a hearing, they do so with a full understanding of the consequences. The immigration officer's failure to clarify the actual, intended deportation destination before securing the waiver was a breach of this duty.
  • The Legal Consequence: Because the waiver was legally invalid, the subsequent deportation order, issued without the legally required hearing, is procedurally defective. A court would likely revoke the order on these grounds, forcing the immigration authorities to conduct a proper hearing.

Conclusion

While Japan's Minister of Justice wields broad discretionary authority in immigration matters, that power is subject to both procedural and substantive legal constraints. Foreign nationals facing deportation have the right to challenge the government's decision in court.

The most powerful legal strategy often centers on seeking a discretionary grant of Special Permission to Stay (zaitoku), arguing that humanitarian factors like family unity and the best interests of children raised in Japan outweigh past immigration violations. In such cases, a court is asked to find that the Minister's refusal to grant relief was an abuse of discretion.

Furthermore, courts will act to protect fundamental procedural rights. A deportation order that is the result of a flawed process, such as being based on an invalid waiver of the right to a hearing, can be revoked, ensuring that even in the context of immigration enforcement, the rule of law is upheld.