Children of illegal foreign residents may stay in Japan legally when they obtain special permission to stay from the government. Even when staying in Japan illegally, they may attend Japanese public elementary and secondary schools for free. There is no special path to obtain nationality for them. To be naturalized, they must first stay in Japan legally.
Japan’s population is approximately 126.8 million. As of January 1, 2017, the estimated number of overstayed foreigners in Japan was 65,270. In addition, there are an unknown number of foreigners in the country who entered without immigration procedures. Together both groups of foreigners are collectively referred to as “illegal foreign residents” or “illegally staying persons” (不法滞在者).
When a person’s illegal status is discovered by an immigration office, deportation procedures are initiated. An illegal foreign resident may be able to stay in Japan legally only if he or she obtains special permission from the Minister of Justice. Article 50, paragraph 1 of the Immigration Control and Refugee Recognition Act (Immigration Act) states as follows:
The Minister of Justice may . . . grant the suspect special permission to stay in Japan if the suspect falls under any of the following items:
(i) He or she has obtained permission for permanent residence.
(ii) He or she has had in the past a registered domicile in Japan as a Japanese national.
(iii) He or she resides in Japan under the control of another as a result of trafficking in persons.
(iv) The Minister of Justice finds grounds for granting special permission to stay, other than the previous items.
This decision is made individually with respect to each case based on comprehensive consideration of various factors, including the reason for stay, family conditions in Japan, the person’s conduct, the person’s current situation both at home and abroad, the need for humanitarian considerations, and the impact on other illegal residents. To enhance the transparency and predictability of special permission to stay, the Immigration Bureau released Guidelines on Special Permission to Stay in Japan, which list the positive and negative factors taken into account, in addition to items (i) to (iii) above, which are positive elements.
II. Children of Illegal Foreign Residents
Non-Japanese children are not subject to the mandatory school education requirement in Japan. However, the government has established a policy, in the spirit of the 1966 International Covenant on Economic, Social and Cultural Rights and the 1990 Convention on the Rights of the Child, that if parents or guardians of foreign children wish to enroll them in Japanese schools, public primary and secondary schools must accept them. Such foreign students can enjoy free tuition and textbooks during mandatory education at public schools in Japan, the same as Japanese children. This policy applies to children irrespective of their legal status of stay.
Occasionally the threatened or actual deportation of the children of illegal foreign residents who have been raised and attended school in Japan receives public attention. In 2009, a Filipino girl’s parents were deported, but the girl, who was thirteen years old, was permitted to stay in Japan for one year by special permission of the Minister of Justice. She could not speak Tagalog, and she had an aunt to stay with in Japan. When she entered high school, her status of stay was changed to “student.” Her living expenses were funded by contributions from the general public.
In the case of a boy of a Thai mother who stayed in Japan illegally, special permission to stay was not granted. The child was an out-of-wedlock child of Thai parents. He was born and raised in Japan, but did not go to elementary school. Both his Thai and Japanese language skills were poor. However, he received special education support from a nongovernmental organization and enrolled in middle school in Japan in 2013, then subsequently enrolled in high school. When he appealed the Immigration Office’s decision that refused special permission to stay, the district court suggested that if his mother went back to Thailand voluntarily and he could find a guardian in Japan, the decision could be reconsidered. Though the mother returned to Thailand, it appears that there was no legal guardian for the boy at the time of the high court decision confirming the denial of special permission in December 2016. According to a news article, the boy planned to stay with one of his supporters in Japan and file a special permission application again.
III. Path to Citizenship
The Japanese Nationality Law is based on lineage. A child whose father or mother is a Japanese national at the time of his or her birth acquires Japanese nationality. Therefore, birth within Japanese territory does not enable a person to acquire Japanese nationality. A person who is not a Japanese national (foreigner) may acquire Japanese nationality by naturalization. In general, the following conditions are required for naturalization:
A foreigner must
1. have been domiciled in Japan for five years or more consecutively;
2. be twenty years old or older and of full capacity to act according to the law of his or her home country;
3. be of upright conduct;
4. be able to secure a livelihood by his or her own property or ability, or those of his or her spouse or other relatives with whom he or she lives on common living expenses;
5. lose other nationalities, if he or she has any, by the acquisition of Japanese nationality; and
6. have never plotted, advocated, or been involved with a political party or other organization that has plotted or advocated the overthrow of the Constitution of Japan or the Japanese government.
A foreigner may be exempted from one or several items if other conditions are met. Especially in cases where a foreigner has a Japanese spouse or other family relations in Japan, the requirements for naturalization are relaxed.
Regarding the requirement of five years’ domicile in Japan, a person is deemed to be domiciled in Japan only when he or she lives in Japan legally. Therefore, the children of illegal foreign residents cannot become naturalized until they have obtained legal resident status, such as special permission to stay in Japan, and the required time has passed.
Prepared by Sayuri Umeda
Foreign Law Specialist
人口推計（平成29年(2017年)3月確定値，平成29年8月概算値） [Estimated Population (March 2017 Final Number, August 2018 Approximate Number)], Statistics Japan (Aug. 21, 2017), http://www.stat.go.jp/ data/jinsui/new.htm, archived at https://perma.cc/XBA3-WSEB.
 本邦における不法残留者数について（平成29年1月1日現在） [Regarding Number of Overstaying People in Japan (as of January 1, 2017)], Ministry of Justice (Mar. 17, 2017), http://www.moj.go.jp/nyuukokukanri/ kouhou/nyuukokukanri04_00066.html, archived at https://perma.cc/HQD9-JXBP.
 不法入国·不法滞在に係る諸問題 [Various Issues Relating to Illegal Entry and Overstay], 焦点 [Shoten] No. 269, ch. 2, § 8 (2004), https://www.npa.go.jp/archive/keibi/syouten/syouten269/sec02/sec02_08.htm, archived at https://perma.cc/8WEG-5SQA.
 Immigration Control and Refugee Recognition Law (Immigration Control Law), Order No. 319 of 1951, last amended by Law No. 79 of 2009, arts. 24, 39, & 45, http://www.japaneselawtranslation.go.jp/law/detail_main? re=02&ia=03&vm=02&id=2647, archived at https://perma.cc/N9YW-C2WF.
 Id. art. 50.
 Immigration Bureau, Ministry of Justice, Guidelines on Special Permission to Stay in Japan (Oct. 2006, revised July 2009), http://www.moj.go.jp/content/000048156.pdf, archived at https://perma.cc/98RR-9RSK.
 Basic Education Law, Act No. 120 of 2006, art. 4. This provision states that Japanese nationals are obligated to have children under their custody to receive ordinary education.
 International Covenant on Economic, Social and Cultural Rights, Dec. 16, 1966, S. Treaty Doc. No. 95-19, 6 I.L.M. 360 (1967), 993 U.N.T.S. 3.
 Convention on the Rights of the Child, Nov. 20, 1989, 1577 U.N.T.S. 3.
 外国人の子どもの公立義務教育諸学校への受入について [Regarding Acceptance of Foreign Children to Public Mandatory Education Schools], Ministry of Education, Culture, Sports, Science and Technologies, http://www.mext.go.jp/b_menu/shingi/chousa/shotou/042/houkoku/08070301/009/005.htm (last visited Sept. 18, 2017), archived at https://perma.cc/ZZT2-X2SA.
 Japan Federation of Bar Associations, 非正規滞在外国人に対する行政サービス [Administrative Services for Illegal Foreign Residents] 3 (Feb. 2016), https://www.nichibenren.or.jp/library/ja/publication/ booklet/data/gyosei_serv_pam_ja.pdf, archived at https://perma.cc/NY4J-WLLV.
 Calderon Couple Exit Japan, Japan Times (Apr. 14, 2009), https://www.japantimes.co.jp/news/2009/04/14/ national/calderon-couple-exit-japan/, archived at https://perma.cc/A4NY-FWDP.
 カルデロン・ノリコさん一家の在留問題に関する会長声明 [Declaration of Chairman Regarding Noriko Calderon Family’s Stay], Tokyo Bar Association (Mar. 17, 2009), https://www.toben.or.jp/message/seimei/post-143.html, archived at https://perma.cc/4KSQ-UGN9.
 Girl Chooses Japan over Parents, BBC (Apr. 14, 2009), http://news.bbc.co.uk/2/hi/asia-pacific/7998048.stm, archived at https://perma.cc/Q82G-NTGQ.
 のりこ基金会計ご報告 [Report on Accounting of Noriko Foundation], カルデロン・アラン・クルズ一家に在留特別許可を！[Special Permission for Calderon Arlan Cruz Family!] (Aug. 4, 2011), http://blog.goo.ne.jp/izumibashilaw/e/b5b009d2f7c45e2c957a4e669e8ecfcd, archived at https://perma.cc/G78J-YU53.
 Id.;のりこ基金会計報告（2017年上半期）[Report on Accounting of Noriko Foundation (First Half of 2017)], Special Permission for Calderon Arlan Cruz Family! (Aug. 1, 2017), http://blog.goo.ne.jp/izumibashi law/e/38b3f745e2dffb9b3010862b25869843, archived at https://perma.cc/WZX4-ZBAE.
日本で生まれ育ったタイ人高校生の未来は、強制退去なのか。司法への問いかけは続く, Huffington Post (Dec. 19, 2017), http://www.huffingtonpost.jp/2016/12/16/utinan-to-supreme-court_n_13670708.html, archived at https://perma.cc/Y69L-UHLM.
上告を取り下げ 生徒の敗訴確定 / 山梨, タイ人在留訴訟 [Withdrew an Appeal, Student’s Loss Confirmed / Yamanashi, Thai’s Stay Case], Mainichi (Jan. 19, 2017), https://mainichi.jp/articles/20170119/ddl/k19/040/ 023000c.
 Nationality Act, Act No. 147 of 1950, amended by Act No. 88 of 2008, art. 2, http://www.japaneselaw translation.go.jp/law/detail_main?re=02&ia=03&vm=02&id=1857, archived at https://perma.cc/XS45-MLCF.
 Id. art. 4.
 Id. art. 5.
Last Updated: 12/31/2020