What is application for permission for provisional release?

1. What is provisional release?

The provisional release means a disposition by which detention of a foreigner detained by a detention order or deportation order is temporarily suspended and custody is tentatively canceled based on request or by authority. It is similar to “bail” in criminal cases.

Article 54 of the Immigration Act set forth as follows:

(1) Any person detained pursuant to a written detention order or deportation order, their representative, curator, spouse, lineal relative or sibling may apply for provisional release to the director of the Immigration Detention Center or Supervising Immigration Inspector in accordance with the procedures provided for by Ministry of Justice Order.
(2) The director of the Immigration Detention Center or Supervising Immigration Inspector may accord provisional release to a Foreign National detained pursuant to a written detention order or deportation order upon the application set forth in the preceding paragraph or ex officio, taking into consideration such matters as the circumstances, evidence produced in support of the application, and the character and assets of the Foreign National pursuant to the provisions of Ministry of Justice Order, upon the Foreign National paying a deposit not exceeding 3 million yen as provided by Ministry of Justice Order, and with such conditions as may be deemed necessary, such as restrictions on the place of residence and area of movement and the obligation to appear upon receiving a summons.
(3) If the director of the Immigration Detention Center or Supervising Immigration Inspector finds it appropriate, they may permit a letter of guarantee submitted by a person other than the Foreign National detained under a written detention order or deportation order to be substituted for the deposit. Such a letter of guarantee must contain the amount of the deposit and a statement that the deposit will be paid at any time.

From here, we will further explain about provisional release.

2. Who can apply for permission for provisional release?

The following people can apply for permission for provisional release.

1) The detained foreigner;
2) An agent of the detained foreigner;
3) The curator of the detained foreigner;
4) The spouse of the detained foreigner;
5) Lineal relatives of the detained foreigner such as his/her parents and children; and
6) Siblings of the detained foreigner.

3. Documents required for application for permission for provisional release

There are 2 types of situations where permission for provisional release is requested: one is while detained by a written detention order and the other one is while detained by a written deportation order.
The former is called “detention order provisional release” or “provisional release before deportation order” and, the latter is called deportation order provisional release”.

Depending on each situation, documents to be attached to application for permission for provisional release are different; therefore, we will explain about required documents in regular cases in this article.

1) Application for permission for provisional release (Appended Form 66 (related to Article 49))
2) Statement of reasons for requesting provisional release
3) Letter of Guarantee
4) Written oath (by guarantor)
5) Written oath (by detainee）
6) Resident card of the guarantor (without description of permanent domicile and Individual Number)
7) Certificate of income-related matters of the guarantor (e.g. certificate of employment, certificate of taxation, etc.)
8) Power of attorney (in case that an agent submit application)

Other documents required to be submitted are:
– Materials showing that the detainee has disease which is incurable at a detention facility;
– Materials showing that detention is difficult due to family situation;
Etc.

Additionally, in case of requesting provisional release before deportation order,
– materials showing there is high possibility that special permission to stay will be granted; and
In case of deportation order provisional release,
– materials showing the detainee is in a state of mental and physical exhaustion due to long-term detention;
etc. are effective materials which can be submitted.

4. Requirements for permission for provisional release

Actually, there is no provision as to the requirements for permission for provisional release in the Immigration Act, while on the website of the Immigration Services Agency, it is only stated that comprehensive judgement will be made considering various factors of each case.

Having said that, the website says that the judgement concerning provisional release will be made considering Article 54, paragraph 2 of the Immigration Act and the items listed in Article 9 of the Guideline on Provisional Release.

– suspected offense or reason for deportation of a detainee
– Reason for request for provisional release and evidence thereof
– Personality, age, assets, behavior, and health condition of a detainee
– Family situation of a detainee
– Period of detention and behavior during detention of a detainee
– Situation of the pending administrative litigation concerning disposition related to immigration control, etc., if any
– Situation of application for recognition of refugee status, if any
– Situation of adjustment concerning deportation procedure between Japan and the government of the country or area where the detainee is from or embassy or consulate, etc.
– Reason of non-possession of an effective passport, if applicable
– Age, occupation, income, assets, behavior, relationship with a detainee and enthusiasm to guarantee of the person who is to become a guarantor
– Possibility of escape or violation of conditions attached to provisional release
– Influence to benefit of Japan or public peace
– Existence of any damage from trafficking in persons, etc.
– Any other special circumstances

5. Q& A concerning application for permission for provisional release

Q According to the law, a deposit specified by an ordinance of the Ministry of Justice not exceeding 3,000,000 yen must be paid when provisional release is permitted. Are there cases where deposits are very expensive?

A It depends on the financial situation of each detained foreigner, but it is common to be charged about 50,000 yen to 300,000 yen in practice.

Ｑ Will deposit for provisional release be refunded?

Ａ Deposits will be refunded unless provisional release is cancelled due to following reasons.
a. The foreigner has escaped; or
b. The foreigner does not respond to summons without any legitimate reason.
Therefore, as long as conditions attached to the permission for provisional release are complied, deposits will be refunded.

Ｑ How long does it take to receive the result of application for permission for provisional release?

A Such period is not provided in law, but in most cases it takes about 2 weeks to 1 month in practice. The result of application for permission for provisional release will be sent to the applicant written in the application.

Ｑ Can I work during the period of provisional release?

Ａ During provisional release, working is not permitted. If you work secretly and the authorities find out about that, the provisional release can be canceled based on your violation of conditions attached to the provisional release. Please make sure not to violate any condition attached to provisional release by working.

Ｑ The result of special permission to stay came out first while I applied for provisional release and special permission to stay at the same time. What happened to the application for permission for provisional release?

A In practice, withdrawal of the application for permission for provisional release is not necessary.

Ｑ Will provisional release be permitted if I file an action for the revocation of administrative dispositions?

A precedent case states that “there is no principle that states a person whose action for revocation of disposition is pending must be granted provisional release” (Tokyo district court dated 13 December 1976). Accordingly, please understand that filing an action for revocation of disposition does not always bring permission for provisional release.

6. Summary

Regarding provisional release, we have learned the following things through everyday practice.

– Judgement concerning provisional release varies depending on the then-current practice of immigration services; and
– The possibility to get permission is higher when requesting for provisional release after a certain time since the issuance of a written deportation order, than provisional release before deportation order

We have impression that around 2012, the deportation order provisional release (which is conducted after a certain time since issuance of a deportation order) were often permitted, but practice of provisional release became strict after that. As of 2020, judgements concerning applications to request provisional release have been very rigid in cases of provisional releases before and after deportation order.

We need to pay attention to future immigration practice. Please do not easily believe that you will be granted provisional release if you file an action for revocation of disposition, or choose to be a long-term detainee for the purpose of obtaining permission for provisional release although you have received issuance of deportation order.

When the length of detention extends, detainees not only harm their health, but also undergo a lot of stress. We recommend detainees to calmly proceed with a specialist, considering situation and possibility of permission of provisional release, so detention period will not be too long by wrong judgements.