Special Permission for Residence

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What is Special Permission for Residence?

As is mentioned earlier “Special Permission for Residence” is an exceptional legal arrangement as part of the deportation procedure. In another word it is the “Special Permission for Residence” which exceptionally entitles those, who are over-stays and, therefore, are supposed to be deported from the Japanese land, to remain in Japan by taking their different circumstances into consideration.

 To apply for it a person overstaying has to go through deportation order. If the application is unsuccessful deportation order is issued and he/she has to leave Japan in the end. It is the Minister of Justice who makes final decision on this. Article 50 of the immigration Law/Immigration Control Act provide as follows:

Article 50 (Exceptional Decision by the Minister of Justice)

Although no convincing reasons found the Minister of Justice is approved to exceptionally entitle those who correspond to the following matters in accordance with section 3 in the previous article.

1.He/she is a permanent resident
2.He/she held Japanese citizenship in the past.
3.He/she stayed in Japan under someone’s control by human trafficking or others.
4.When the Minister of Justice assesses other matters and approves they should be taken into consideration for granting special permission for stay.

② The Minister of Justice is entitled to set down necessary conditions such as period of stay in accordance with the ordinance of the Ministry of Justice on the permission granted to those of above definitions.

③ Grant of the permission means that the objection is well grounded even though section 4 in previous article applies.

 “The Minister of Justice is entitled to grant Special Permission for Residence by his/her discretion. The Law does not give a right to overstays or illegal residents to apply for it. No right no application. Therefore a staff of an Immigration Bureau may answer “there is no such application” to your inquiry.

 Again application for “Special Permission for Residence” means application for “Deportation”. Even if the permission is not granted in the end it will never be unlawful because the decision is based on the Minister’s discretion.

 Cases in which rejections of applications for Special Permission of Residence are interpreted as unlawful decision by abuse of the Minister’s right of discretion are restricted to when it is evaluated that the Minister had been obviously against the true meaning of the given right and the decision was made upon the ground of grave misunderstandings of the fact. (7th December, 1995. Decree absolute by Tokyo District Court).

Of course whether the decision is unjust is still at question. But as provided by General Provision of International Law mentioned earlier aliens have little power in requesting a right of residence in a country, therefore aliens in Japan are in weak position to apply for Special Permission of Residence because according to the law it is up to the government to decide what kind of person it allows to stay. The following is a precedence of application for the permission. As is seen it is not easily granted even if one marry a Japanese.

The Minister of Justice is ought to take factors such as the applicant’s activity during the period of stay and the domestic economic situation into consideration from the points, such as, social order, culture maintenance, steady labour market, of view when deciding whether to grant the permission. Therefore it is natural that the period of overstaying, engagement in unauthorized work and the employment form, and the awareness of importance of compliance are the basis for decision making. In this respect it is not confirmed that the Minister has the duty to grant the permission to the applicant without consideration to those just because he/she married a Japanese. (31st July, 1996. Decree Absolute by Tokyo District Court).

 Yet generally speaking followings are the cases the permission is likely to be granted.

1.An alien married Japanese/a person with Japanese citizenship.
2.An alien married a person with status of “Permanent Resident” or “Long-Term Resident”
3.An alien married a Japanese and have a Japanese child.

Of course there are cases as an application is not successful even though the applicant married a Japanese and cases as, in contrast, an application made by a family is successful after spending over 10 years in Japan as overstays even though none of them has a Japanese spouse. The cases above are not all for successful applications. Decisions are made according to the applicants’ situations.

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