This article is written by a Japanese local.
Born in Japan, attending Japanese schools, and speaking only Japanese. However, because their parents are overstaying (residing illegally), some children find themselves in an illegal residency status as well. For these children and their families living in fear of deportation, the final resort to remain in Japan legally is the “Special Permission to Stay” (Zairyu Tokubetsu Kyoka).
However, it is extremely dangerous to be swayed by superficial information on the internet claiming that “approval is easy if you have children.” Special Permission to Stay is not a right; it is strictly a “beneficial special measure” at the discretion of the Minister of Justice. This article comprehensively explains the Ministry of Justice’s screening criteria for saving children who have lived in Japan for many years, the weighing of the parents’ past violations, the risks of voluntary appearance, and the meticulous logical construction required to navigate the screening process.
1. The Legal Nature of “Special Permission to Stay” and the Harsh Reality
Special Permission to Stay is fundamentally different in legal nature from standard visa applications (such as applications for the Certificate of Eligibility, renewals, or changes of status). Accurately understanding this is the starting point of all legal preparation.
An Exceptional Measure Based on the Minister of Justice’s “Discretion”
Standard visas are generally granted if the requirements stipulated in the Immigration Control Act are met. However, foreign nationals who have committed violations of the Immigration Control Act, such as overstaying, are primarily subject to deportation (expulsion from Japan). Special Permission to Stay is a system where, at the final stage of the deportation procedures, the Minister of Justice “exceptionally” permits a stay in Japan by taking individual special circumstances into account. It is not a system where approval is guaranteed simply by meeting certain criteria.
Not Granted Simply Because of the “Presence of a Child”
Special Permission to Stay is not automatically granted just because you have a school-aged child who was born and raised in Japan. During the screening, the level of establishment in Japan (positive elements) and the severity of the Immigration Control Act violations committed by the parents, such as illegal stay or illegal labor (negative elements), are strictly weighed on a scale. If it is determined that the negative elements outweigh the positive ones, the harsh reality of deportation awaits the entire family.
2. Weighing the “Positive Elements” and “Negative Elements” that Dictate the Screening
The Ministry of Justice has published guidelines that serve as the criteria for determining Special Permission to Stay. Examiners comprehensively evaluate the following “positive elements” (circumstances favoring approval) and “negative elements” (circumstances leaning towards rejection) to make a logical judgment.
Strong “Positive Elements” Regarding the Child
In cases involving children who have lived in Japan for many years, the following elements are heavily considered:
- Establishment in Japan: The child was born in Japan or entered at a very young age and has lived in Japan for a long period (generally around 10 years or more is considered a benchmark, depending on the case).
- Educational Environment: The child is attending a Japanese primary or secondary educational institution (elementary, junior high, or high school) and has received Japanese education for a long time. The fact that they cannot speak their mother tongue (the parents’ native language) and are completely assimilated into Japanese society.
- The Child’s Own Culpability: Humanitarian consideration that the child bears no responsibility (culpability) for the parents’ overstaying status.
“Negative Elements” Regarding the Parents’ Violations
No matter how strong the positive elements of the child are, permission will not be granted if the parents’ negative elements are severe.
- Background of Entry and Stay: If the background is extremely malicious, such as illegal entry with a forged passport or entering with the initial intent of illegal labor.
- Duration of Illegal Stay: If the overstay period spans many years, this in itself is viewed as a disregard for the legal order.
- Other Criminal Records: If there are severe legal violations other than illegal residency, such as penal code offenses (theft, assault, etc.), facilitation of illegal labor, or fake marriages, the chances of approval become hopeless.
3. Voluntary Appearance vs. Apprehension: The Initial Response Determines the Outcome
The process of seeking Special Permission to Stay can be broadly divided into two scenarios: “voluntarily appearing at the Immigration Bureau to report” and “procedures starting after being apprehended (arrested) by the police or Immigration.” This difference in the initial response decisively affects the outcome.
The Overwhelming Advantage of Voluntary Appearance
Even in the Ministry of Justice’s guidelines, “voluntarily appearing at a regional immigration office and reporting the violation facts” is clearly evaluated as a positive element. Demonstrating that you have no intention of continuing to flee, will follow Japan’s legal order, and are willing to be judged under the law is crucial in the screening. Furthermore, if you voluntarily appear and it is determined that there is no flight risk, it increases the likelihood of avoiding detention (being confined in an Immigration facility) and being granted a “Provisional Release” (Karihomei), allowing you to attend procedures from your home.
The Desperate Situation When Apprehended (Arrested)
On the other hand, if you continue to live on the run without appearing and are apprehended by the police or Immigration through questioning or informants, this fact becomes an extremely heavy negative element. In this case, as a general rule, you will be physically detained in an Immigration detention facility. Seeking Special Permission to Stay from inside a detention facility severely limits your ability to gather evidence and coordinate with your family, making it extremely difficult to construct a defense.
4. Logical Construction of the “Written Statement” and Evidence to Persuade the Examiner
When making a voluntary appearance, the most critical steps are drafting a “Written Statement” (Statement of Reasons) and submitting objective evidence to back it up. Emotional arguments such as “I want to stay in Japan” or “I feel sorry for my child” alone cannot move the examiner’s heart.
Reflection and Presentation of the Future in the Written Statement
In the written statement, the parents must first logically state that they fully admit to the Immigration Control Act violations without hiding anything and are deeply remorseful. Building upon that, you must objectively and specifically demonstrate why you had no choice but to continue overstaying (if there were unavoidable circumstances), how deeply the child is currently assimilated into Japanese society, and what devastating blows a forced deportation to the home country would deal to the child’s healthy upbringing and human rights.
A Total War of Objective Evidence
To prove the child’s establishment in Japan, words are not enough; an accumulation of massive objective evidence is indispensable. The following are typical examples:
- School-Related Proof: Certificates of enrollment, report cards, petition letters from homeroom teachers, and records of school activities. This proves that the child receives education solely in Japanese and cannot withstand education in their home country’s language.
- Ties to the Local Community: Petition letters from neighborhood associations or signatures from friends and acquaintances. This proves that the family is accepted by the local community and has built good relationships.
- Financial Foundation (Ability to Make a Living): Documents proving future stability are also required, such as whether the parents can legally work to support the family if permission is granted, or whether there are financial supporters.
5. Status After Approval and Legal Limits Upon Rejection
Status of Residence When Approved
If, after a rigorous screening process lasting from several months to years, the Minister of Justice grants Special Permission to Stay, a status of residence such as “Long-Term Resident” (Teijusha) or “Designated Activities” (Tokutei Katsudo) is usually given. This liberates the family from years of illegal residency; the child can attend Japanese schools proudly, and the parents can legally work to make a living.
The Severe Outcome When Rejected
If the screening results conclude that the negative elements outweigh the positive, Special Permission to Stay is denied, and a “Written Deportation Order” is issued. While there is room to fight this by filing an administrative lawsuit (court case), the hurdle for the court to recognize a deviation or abuse of the Minister of Justice’s discretionary power is extremely high, and the reality is that the chances of winning are very low. Ultimately, you will be forced into a bitter choice: either the entire family is deported to the home country, or the child is left alone in Japan while the parents return.
6. Conclusion: Lawful Procedures and Consulting Qualified Professionals to Protect the Child’s Future
Special Permission to Stay to save a long-term overstaying child in Japan is the heaviest and strictest legal procedure in immigration practice, one that can never be broken through with emotional arguments alone. The child’s life and the family’s future depend entirely on this single procedure.
Continuing to live on the run with the fear of “we might get caught someday” not only worsens the situation but is also the biggest factor hindering the child’s healthy growth.
Before deciding to make a voluntary appearance, or if deportation procedures have already begun, absolutely do not act solely on your own judgment. Promptly consult with qualified professionals, such as administrative scriveners or lawyers, who are well-versed in immigration affairs and Special Permission to Stay cases. Objectively organizing the facts, constructing a logical defense to find a path to victory, and proceeding lawfully is the only correct approach to protect your child’s future in Japan.