Charged with overstaying or having no valid pass under the Immigration Act. What happens now?

You came to Malaysia legally to work, but your employer failed to renew your pass. Or your visit pass expired while you were in hospital. Now you have been arrested in an immigration operation and are to be charged. Immigration offences are prosecuted often in Malaysia, and the outcome depends heavily on the facts and how the case is handled from the first day.

The two common charges

Entering without a valid pass (section 6)

A person who is not a citizen must not enter Malaysia unless he holds a valid entry permit or pass, or is exempted (Immigration Act 1959/63, s.6(1)). Contravening this is an offence (s.6(3)).

Importantly, the burden of proof that the person entered without contravening section 6 lies on that person. The charge need not state the date, place or manner of entry (s.6(4)). Keep any evidence of lawful entry: passport stamps, travel records, boarding passes.

Remaining after a pass expires or is cancelled (section 15)

A person must not remain in Malaysia after his pass has expired, after it has been cancelled and he has been notified, or after a permit or certificate has been cancelled, unless otherwise authorised (s.15(1)). The offence is committed by a person who contravenes the section without reasonable cause (s.15(4)).

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Penalties in general terms

Both offences are punishable by a fine, imprisonment or both. Section 15 has a minimum fine. Section 6 also provides for whipping, but criminal procedure law exempts certain persons, including women, from whipping. The exact range should be checked against the current text of the Act for your charge. Courts consider the length of the overstay, the reasons for it, previous records, and whether the accused pleads guilty early.

A foreign national convicted of an immigration offence may also be detained and removed from Malaysia after serving any sentence.

"Without reasonable cause"

For overstaying, the reasons matter. Examples that may be relevant:

• serious illness or hospitalisation;
• an employer holding the passport or failing to renew the work pass;
• a pending application for renewal or a new pass;
• natural disasters or travel restrictions.

Whether a reason amounts to "reasonable cause" is decided by the court on the evidence. Even if it does not, it may be relevant to sentence.

If you were brought into Malaysia by traffickers, section 25 of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 provides that a trafficked person is not liable to prosecution for illegal entry, unlawful residence, or fraudulent travel documents obtained or supplied for entry, where these are the direct consequence of trafficking. Tell your lawyer if this may apply.

What should I do first?

1. Do not sign statements you do not understand. Ask for an interpreter.
2. Contact your embassy and a lawyer.
3. Gather documents: passport, pass history, renewal applications, medical records, employer letters.
4. Ask about bail.
5. Take advice before pleading guilty, especially if there was a reason for the overstay.

Example

A factory worker's pass expires because his employer did not submit the renewal and kept his passport. He is charged under section 15. His lawyer obtains the employer's correspondence and the passport records. The court considers the circumstances in deciding the case.

Common mistakes

• Pleading guilty on the first day without understanding the charge.
• Not telling the court about illness or the employer's role.
• Losing documents that show lawful entry.
• Not contacting the embassy.

When to speak to a lawyer

Speak to a lawyer as soon as you or a family member is arrested for an immigration offence, and before any plea is taken. See our criminal defence page; you can also contact us.

Frequently asked questions

Can I get bail?

Bail may be applied for. The court considers the risk of absconding, which is a particular concern for foreign nationals. A local surety helps.

Will I be deported after the case?

A foreign national without a valid pass is usually removed from Malaysia after the case and any sentence. Ask your lawyer about the consequences for future entry.

My employer is responsible for my pass. Is the employer liable too?

Employers can face their own offences under the Immigration Act for employing persons without valid passes. That does not automatically end your case.

Sources & fact check

Legal points in this article were checked against the primary sources below. The law can change; this is general information, not legal advice.

1. Immigration Act 1959/63 (Act 155), AGC Laws of Malaysia
2. Immigration Department of Malaysia: Enforcement
3. Criminal Procedure Code (Act 593), Attorney General's Chambers Laws of Malaysia
4. Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 (Act 670), AGC Laws of Malaysia

Fact-checked on 18 Oct 2026