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Criminal Law Foreigners
All information on criminal residence law and the consequences of criminal offences for foreigners in Germany
... what an overstay is and what the consequences of an overstay are
... how the investigation and criminal proceedings against foreigners work
... the consequences of a criminal offence for your residence permit and for naturalisation
... whether and when you will be deported from Germany and when an entry ban for the Schengen area will be imposed
HERE YOU LEARN ...
Written by: Attorney at Law (Berlin)
Publication date: 05.05.2024
Estimated reading time: 11 min.
1. What is criminal law for foreigners?
2. What residence offences can foreigners commit?
2.1 Overstay Germany
2.2 Unauthorised entry
2.3 False information in the visa procedure
2.4 Staying in Germany without a passport
2.5 Illegal employment of foreigners/black labour
3. Criminal proceedings for foreigners
3.1 Appointment of an authorised representative for service of process
3.2 Investigations by the police
3.3 Conclusion of the proceedings
4. Consequences of criminal offences for foreigners
4.1 Consequences of criminal offences for residence titles (block on issuing titles)
4.2 Consequences of criminal offences for future entries (entry ban)
4.3 Consequences of criminal offences for naturalisation (naturalisation ban)
5. FAQ Criminal law for foreigners
Table of Content
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1. What is criminal law for foreigners?
Criminal immigration law is a special criminal law that only applies to foreign nationals from third countries. In principle, all people who are subject to residence, freedom of movement, nationality and humanitarian law are affected by criminal law relating to foreigners. This currently amounts to around 10 million people in Germany. Different criminal law rules apply to these people. According to the legislator, this is intended to bring about a ‘stabilisation of the administrative law systems’.
2. What offences can foreigners commit?
2.1 Overstay Germany
2.1.1 Offence without a visa in Germany
One of the most common offences committed by foreigners in Germany is the so-called ‘overstay’. Overstay refers to cases in which a foreigner stays in Germany even though their residence permit (e.g. visa) has expired. In this respect, every (non-European) foreigner requires a visa or residence permit to stay in Germany (§ 4 AufenthG). Most foreigners need a visa to enter Germany (you can check the visa list of the Federal Foreign Office to see whether you need a visa to enter Germany). In many cases, this entry takes place with a Schengen visa. Even if you do not need a visa to enter Germany, a residence permit is required if you want to work or if you want to stay in Germany for longer than 90 days within a 180-day period. Exceeding this permitted period of stay is known as an ‘overstay’. Such an overstay is possible in the following constellations...
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... Your Schengen visa has expired and you are still staying in Germany (Schengen overstay),
... your Schengen visa is still valid, but you have exceeded the 90 days (overstay with a valid visa),
... you have exceeded your visa-free period of 90 days within 180 days (overstay of positive nationals),
... you are working in Germany without authorisation with a Schengen visa (unauthorised work stay).
2.1.2 How is an overstay calculated?
Whether an overstay has occurred is determined by whether you have exceeded your permitted period of stay of 90 days within 180 days. The calculation is not as simple as it first appears, as 90 days is not automatically 3 months. The European Commission's Short-Stay Visa Calculator can be used to calculate the permitted period of stay with a Schengen visa (or with a visa-free stay). In the European Commission's Short-Stay Calculator, you only need to enter your travel dates to find out when your authorised stay in Germany or the European Union ends. If your overstay is not based on a Schengen stay, the start of the overstay is simply determined by the expiry date of your residence permit.
2.2 Unauthorised entry
Another offence that foreign nationals can commit is unauthorised entry. Illegal entry always occurs if the foreigner does not have a passport or residence permit when they enter the country. This includes, for example, cases in which the residence permit has already expired or been lost. Crossing the border with a missing or expired passport can also constitute illegal entry.
2.3 False information in the visa procedure
In practice, it is relatively common for foreigners to make false statements when applying for a residence permit. This can constitute a criminal offence under the Residence Act. The false statements can be made, for example, during the visa procedure (e.g. when completing the VIDEX form) or when applying for a residence permit. Even if the false statements are often based on a misunderstanding or are made unintentionally, the public prosecutor's office can initiate corresponding investigation proceedings. This can have serious consequences for foreign nationals (see below).
2.4 Staying in Germany without a passport
Staying in Germany without a valid passport is also punishable under § 95 Para. 1 No. 1 AufenthG, § 3 AufenthG (prison sentence of up to one year). In this respect, every foreigner is obliged to have a recognised and valid passport or passport substitute. This is to ensure that the police and immigration authorities are able to verify the identity of the foreigner at all times.
2.5 Illegal employment of foreigners/black labour
The illegal employment of foreigners and illegal employment as a foreigner is also a criminal offence. We have written a separate VISAGUARD article on the unauthorised employment of foreigners.
If one of the offences mentioned has been committed, the public prosecutor's office will initiate preliminary proceedings against the foreigner with the help of the police. the course of the relevant proceedings is described below.
3. Criminal proceedings for foreigners
3.1 Appointment of an authorised representative for service of process
Many foreigners wonder how the investigation procedure in Germany actually works. In fact, there are a few special features in criminal law for foreigners with regard to contact with the police and the public prosecutor's office. This applies, for example, to cases in which the foreigner has no residential address in Germany at all (e.g. in cases of an overstay on a business trip). In these cases, an authorised agent for service of process is first appointed at the local court (e.g. at Erding Local Court for cases at Munich Airport (MUC)). All decisions of the public prosecutor's office and the police are then initially forwarded to this authorised recipient.
3.2 Investigations by the police
Once an authorised representative for service of process has been appointed for the criminal proceedings, the preliminary proceedings usually begin. In the preliminary proceedings, the police investigate the facts of the case, for example by consulting files (e.g. files from the foreigners authority or the embassy) and questioning witnesses. It is also customary to question the foreigner (interrogation of the accused). However, the foreigner is not obliged to support the police investigation. This also applies to the questioning of the accused. As a foreigner, you are therefore not obliged to speak to the police during the preliminary proceedings (‘nemo-tenetur principle’)! From a legal point of view, it is even clearly not advisable to speak to the police. In case of doubt, you should simply point out that you would like to speak to a lawyer first. Although this can be interpreted negatively, the consequences of speaking to the police are always much worse than if you are accused of failing to co-operate. It should also be noted that co-operation with the police is never advisable, as the police are not in a position to influence the proceedings at all. The police are merely the investigating authority for the public prosecutor's office and have no decision-making powers of their own. If at all, you should therefore speak to the public prosecutor's office rather than the police.
3.3 Conclusion of the procedure
Once the police have completed their investigation, they hand the case over to the public prosecutor's office. The public prosecutor's office then reviews the file and decides on the next steps. In the best case scenario, the public prosecutor's office will simply discontinue the proceedings (e.g. due to insignificance or innocence). At this stage of the proceedings, a lawyer can be extremely helpful as they are able to negotiate a discontinuation of the proceedings with the public prosecutor's office (e.g. against payment of a sum of money).
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If the public prosecutor's office does not discontinue the proceedings, it has the option of either issuing a penalty order (§§ 407 ff. StPO) or bringing charges before a criminal court (§§ 198 ff. StPO). In the case of a penalty order, you only have to pay a fine. However, if the public prosecutor brings charges before the criminal court, you will have to answer to a German criminal court. As a foreigner, you should avoid this at all costs, as you could face considerable consequences under immigration law if you are convicted. These consequences of a conviction or a summary penalty order (i.e. if the proceedings have not been discontinued with the help of a lawyer) are described below.
4. Consequences of criminal offences for foreigners
Criminal offences against foreigners can have serious consequences for foreigners. This applies both to the actual administrative procedure and to the chances of obtaining a visa or residence permit in the first place. It is particularly problematic that the commission of a criminal offence or the corresponding investigation proceedings are always reported to the immigration authorities. In this respect, the police, the public order office, the public prosecutor's office and the courts are obliged to inform the foreigners authority of the initiation of criminal proceedings against foreigners (Section 87 (4) Residence Act). This effectively guarantees that criminal offences committed by foreigners will immediately lead to punishment by the immigration authorities (in addition to punishment by the public prosecutor's office/the criminal courts).
During the procedure for issuing a residence permit, the commission of a criminal offence and the initiation of corresponding investigation proceedings has the following consequences for foreigners:
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Residence permits (including settlement permits) may not be issued (Section 79 (2) AufenthG),
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Residence permits may not be extended (§ 79 Para. 2 AufenthG),
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The foreigner may not be naturalised (Section 12a (3) StAG),
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the foreign national may be expelled from Germany (§ 54 AufenthG, § 5 Para. 1 No. 2 AufenthG),
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humanitarian residence titles can be withdrawn or refused (in particular refugee status, § 3 Para. 4 Asylum Act, § 60 Para. 8 Residence Act, § 25a Residence Act, § 104c Residence Act).
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In the worst case scenario, the commission of criminal offences can also lead to imprisonment or a prison sentence for foreigners in Germany. A basic distinction must be made between a prison sentence and ‘preventive detention’. While a prison sentence is imposed by a criminal court to punish an illegal stay, preventive detention is intended to enforce the departure of foreign offenders (e.g. overstayers). The imposition of a prison sentence as a punishment for overstaying is comparatively rare, but preventive preventive detention is possible without further ado. In this respect, for example, US or British nationals (or other ‘positive nationals’) can also be detained if they commit an overstay (Section 62 (3) sentence 1 no. 2 AufenthG). However, as a prison sentence is the most severe punishment known to the law, it is only imposed in serious cases or in repeat offences. An overstay of only a few days, for example, does not usually lead to a prison sentence. However, this depends on the approach of the responsible public prosecutor or the criminal court.
4.1 Consequences of criminal offences for residence permits
Another frequent consequence that can affect foreigners who have committed a criminal offence is a ban on residence permits. As a rule, foreigners may not be issued a residence permit if there is an interest in deportation (Section 5 (1) No. 2 Residence Act). Such an interest in deportation often exists if the foreigner has committed criminal offences (Sections 53, 54 AufenthG).
The conviction of foreigners is generally stored in the so-called ‘visa warning file’ of the immigration authorities, which is maintained by the Federal Office of Administration. The visa warning file is generally used by the visa authorities to prevent visa abuse. Not only criminal convictions are stored in the file, but also offences resulting from false declarations, illegal employment and abusive invitations of foreigners. In principle, organisations and associations can also be entered in the visa warning file. The following authorities have access to the visa warning file:
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Missions abroad (Foreign Office, embassies and consulates),
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Immigration authorities,
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police,
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public prosecutor's office,
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Federal Office of Justice.
If a foreigner with a conviction is entered in the visa warning file, a residence permit can only be issued under difficult conditions.
4.2 Consequences of criminal offences for future entries (entry ban)
The commission of criminal offences by foreigners not only has a direct impact on the foreigner's current residence, but also on future entries. In this respect, the German authorities can impose a so-called entry ban on foreigners. As a result of the entry and residence ban, the foreigner may not enter the territory of the Federal Republic of Germany or the territory of other member states of the European Union or other Schengen states (Section 11 Residence Act). If an entry ban is imposed, it is therefore no longer possible to enter the Schengen area. This can have serious consequences (especially for business people and entrepreneurs).
4.3 Consequences of criminal offences for naturalisation
5. FAQ Criminal Law Foreigners Germany
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