Here you learn ...
... what an overstay is and what consequences an overstay has
... how the investigation and criminal proceedings against foreigners are carried out
... what consequences a criminal offense has for naturalization
... whether and when you can be deported from Germany
Written by:
lawyer
Publication date:
January 18, 2024
Reading time
11 minutes
Table of Content
1. What is the criminal law for foreigners?
2. What crimes can foreigners commit while in the country?
2.1 Overstay Germany
2.2 Illegal entry
2.3 False information in the visa procedure
2.4 Staying in Germany without a passport
2.5 Illegal employment of foreigners/undeclared work
3. Criminal proceedings for foreigners
3.1 Appointment of a delivery agent
3.2 Police investigations
3.3 Conclusion of the procedure
4. Consequences of crimes for foreigners
4.1 Consequences of criminal offenses for residence permits (ban on issuing permits)
4.2 Consequences of criminal offenses for future entries (entry ban)
4.3 Consequences of criminal offenses for naturalization (naturalization ban)
5. Official data collections on foreigners in Germany (AZR and SIS)
5.1 Central Register of Foreigners (AZR)
5.2 Schengen Information System (SIS)
6. FAQ on Criminal Law for Foreigners
1. What is the criminal law for foreigners?
Criminal law on migration is a special criminal law that only applies to third-country nationals. Criminal law on immigration affects all people who are subject to residence, freedom of movement, nationality and humanitarian law. 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 “ stabilization of the administrative law systems ”.
Please note that the following text on immigration law does not entitle you to represent yourself in criminal proceedings. If you are accused of a crime as a foreigner, you should contact a lawyer!
2. What crimes can foreigners commit while in the country?
2.1 Overstay Germany
2.1.1 Penalty without visa in Germany
One of the most common crimes committed by foreigners in Germany is the so-called “overstay”. Overstay refers to cases in which a foreigner stays in Germany although his or her residence permit (e.g. visa) has expired . In this respect, every (non-European) foreigner needs a visa or residence permit to stay in Germany (Section 4 of the Residence Act). Most foreigners need a visa to enter the country ( 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 is made with a Schengen visa. Even if you do not need a visa to enter the country, a residence permit is necessary if you want to work or if you want to stay in Germany for more than 90 days within a 180-day period. Exceeding this permitted period of stay is referred to as “overstay”. Such an overstay is possible in the following constellations…
… 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 valid visa ),
… you have exceeded your visa-free period of 90 days within 180 days ( overstay of positive state citizens ),
… you are working illegally in Germany with a Schengen visa ( illegal work stay ).
2.1.2 How do you calculate an overstay?
Whether an overstay has occurred is determined by whether you have exceeded your permitted length of stay of 90 days within 180 days . The calculation is not as simple as it first appears, as 90 days are not automatically 3 months. To calculate the permitted length of stay with a Schengen visa (or with a visa-free stay), you can use the European Commission's Short-Stay Visa Calculator . In the European Commission's Short-Stay Calculator, you only need to enter your travel dates to find out when your permitted 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 Illegal entry
Another crime that foreigners can commit is illegal entry. Illegal entry always occurs when the foreigner does not have a passport or residence permit when entering the country. This includes, for example, cases in which the residence permit has already expired or has 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 happens relatively often that foreigners provide false information when applying for a residence permit. This can constitute a criminal offence under the Residence Act. The false information can be provided, for example, during the visa process (e.g. when filling out the VIDEX form ) or when applying for a residence permit. Even if the false information is often based on a misunderstanding or is provided unintentionally, the public prosecutor's office can initiate an appropriate investigation. This can have serious consequences for foreigners (see below).
2.4 Staying in Germany without a passport
Staying in Germany without a valid passport is also punishable under Section 95 Paragraph 1 No. 1 of the Residence Act and Section 3 of the Residence Act (imprisonment of up to one year). In this respect, every foreigner is obliged to have a recognized and valid passport or passport substitute . This is to ensure that the police and immigration authorities are able to verify the foreigner's identity at any time.
2.5 Illegal employment of foreigners/undeclared work
The illegal employment of foreigners and illegal employment as a foreigner also constitutes a criminal offense. We have written a separate VISAGUARD article on the unauthorized employment of foreigners . If one of the crimes mentioned has been committed, the public prosecutor's office will initiate an investigation against the foreigner with the help of the police. The course of the relevant procedure is described below.
CONTACT US
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3. Criminal proceedings for foreigners
3.1 Appointment of a delivery agent
Many foreigners wonder how the investigation process in Germany actually works. In fact, there are a few special features in the 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, a so-called delivery agent is initially appointed at the district court (e.g. at the Erding district court for cases at Munich Airport (MUC)). All decisions by the public prosecutor's office and the police are then initially sent to this delivery agent.
3.2 Police investigations
Once an authorized service agent has been appointed for the criminal proceedings, the investigation usually begins. During the investigation, the police research the facts, for example by consulting files (e.g. files from the immigration authorities or the embassy) and interview witnesses. It is also common to question the foreigner (interrogation of the accused). However, the foreigner is not obliged to assist the police investigation . This also applies to the interrogation of the accused. As a foreigner, you do not have to speak to the police during the investigation (“nemo tenetur principle”)! From a legal point of view, speaking to the police is actually strongly discouraged. If in doubt, you should simply state that you would like to speak to a lawyer first. This may be interpreted negatively, but the consequences of speaking to the police are always much worse than if you are accused of inadequate cooperation. It should also be pointed out that cooperation with the police is never advisable, as the police are completely unable to influence the proceedings. The police are merely the investigative authority for the public prosecutor and have no decision-making powers of their own. If at all, you should speak to the public prosecutor rather than the police.
3.3 Conclusion of the procedure
After the police have completed their investigation, they hand the case over to the public prosecutor. The public prosecutor then looks at the file and decides on the next steps. In the best case scenario, the public prosecutor simply drops the case (e.g. because of the triviality or innocence). At this stage of the case, a lawyer can be extremely helpful , as he is able to negotiate with the public prosecutor to drop the case (e.g. in return for payment of a sum of money).
If the public prosecutor does not discontinue the proceedings, it has the option of either issuing a penal order (§§ 407 ff. StPO) or filing charges in a criminal court (§§ 198 ff. StPO). In the case of a penal order, you only have to pay a fine. If the public prosecutor files charges in a criminal court, however, you will have to answer to a German criminal court. As a foreigner, you should definitely avoid this, as you face significant consequences under immigration law if you are convicted.
The court proceedings officially begin with the delivery of the indictment. This document is of central importance as it forms the basis of the proceedings. The indictment tells you exactly what crimes you are accused of, as well as when and where they are alleged to have been committed.
After the criminal court, in most cases a district court, has opened the proceedings, an oral hearing is scheduled. This date is crucial because this is where the main hearing takes place. Several people are present during the oral hearing: a prosecutor representing the prosecution, most likely an interpreter to help with communication problems, and, if you have hired one, your lawyer.
At the hearing, the court will take evidence and resolve legal issues. This includes hearing witnesses, presenting documents and discussing the legal aspects of the case. It is very important that you attend the hearing and present your point of view. Your lawyer can help you protect your rights and provide an appropriate defense.
4. Consequences of crimes for foreigners
Due to the criminal law governing foreigners, criminal convictions can have serious consequences for foreigners . This applies both within the actual administrative procedure and for the chances of obtaining a visa or residence permit at all. What is particularly problematic here is that the commission of a crime or the corresponding investigation procedure is 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 report the initiation of criminal proceedings against foreigners to the immigration authorities (Section 87 Paragraph 4 of the Residence Act). This effectively guarantees that crimes committed by foreigners will immediately lead to punishment by the immigration authorities (in addition to punishment by the public prosecutor's office/criminal courts).
During the procedure for issuing a residence permit, the commission of a criminal offence and the initiation of a corresponding investigation have the following consequences for foreigners :
Residence permits (including settlement permits) may not be issued (Section 79, Paragraph 2 of the Residence Act),
Residence permits may not be extended (Section 79, Paragraph 2 of the Residence Act),
the foreigner may not be naturalized (Section 12a, Paragraph 3 of the StAG),
the foreigner can be expelled from Germany (§ 54 AufenthG, § 5 Abs. 1 No. 2 AufenthG),
Humanitarian residence permits can be withdrawn or refused (in particular refugee status, Section 3 Paragraph 4 Asylum Act, Section 60 Paragraph 8 Residence Act, Section 25a Residence Act, Section 104c Residence Act).
In the worst case, committing crimes in Germany can also lead to detention or a prison sentence for foreigners. A fundamental distinction must be made between a prison sentence and “detention for security reasons”. While a prison sentence is imposed by a criminal court to punish illegal residence, detention for security reasons is intended to ensure that foreign criminals (e.g. overstayers) leave the country. The imposition of a prison sentence as punishment for overstaying is comparatively rare, but preventive detention is certainly possible. In this respect, for example, US or British nationals (or other “positive state citizens”) can also be detained if they commit an overstay (Section 62 Paragraph 3 Sentence 1 No. 2 Residence Act). However, since a prison sentence is the most severe punishment known to the law, it is only imposed in serious cases or in cases of repeat offenses. For example, an overstay of just a few days does not usually result in a prison sentence. However, this depends on the approach of the responsible public prosecutor or criminal court.
4.1 Consequences of criminal offenses for residence permits
Another common consequence that can affect foreigners who have committed a crime is the suspension of their residence permit . As a rule, foreigners cannot be granted a residence permit if there is an interest in deportation (Section 5 Paragraph 1 No. 2 of the Residence Act). Such an interest in deportation often exists if the foreigner has committed crimes (Sections 53 and 54 of the Residence Act). Convictions of foreigners are 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. The file not only stores criminal convictions, but also violations through false statements, illegal work and improper invitations of foreigners. In principle, it is also possible to register organizations and associations in the visa warning file. The following authorities have access to the visa warning file:
foreign missions (Foreign Office, embassies and consulates),
immigration authorities,
Police,
public prosecutor's office,
Federal Office of Justice.
If a foreigner with a conviction is entered in the visa warning file, the issuance of a residence permit is only possible under difficult conditions.
4.2 Consequences of criminal offenses for future entries (entry ban)
The commission of crimes by foreigners not only has a direct impact on the current residence, but also on future entries of the foreigner. 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 is not allowed to enter the federal territory and the territory of the other member states of the European Union or the other Schengen states (Section 11 of the Residence Act). If the entry ban is imposed, entry into the Schengen area is no longer possible. This can have serious consequences (especially for business people and entrepreneurs).
4.3 Consequences of criminal offenses for naturalization
The commission of criminal offenses is also very relevant in the naturalization process. Certain criminal offenses can therefore block naturalization or interrupt the naturalization process if it is already underway.
What happens to my naturalization process if I commit a crime?
If a crime is committed during the naturalization process, the naturalization authority will stop the naturalization process until the investigation by the public prosecutor or the criminal court has been completed.
Can I be naturalized despite committing crimes?
In principle, naturalization is blocked if the naturalization applicant has committed a criminal offense. However, according to the law, minor penalties are not taken into account (Section 12a StAG). The following penalties do not lead to a ban on naturalization:
juvenile sentences (§ 12a para. 1 sentence 1 no. 1 StAG),
Convictions of up to 90 daily rates (Section 12a, Paragraph 1, Sentence 1, No. 2 of the StAG),
Suspended sentences of up to 3 months (Section 12a, Paragraph 1, Sentence 1, No. 3 StAG).
Can the withdrawal of a driving license or a professional ban also lead to a ban on naturalization?
Yes, so-called reform measures (i.e. withdrawal of a driving license and professional ban) can also lead to exclusion from naturalization in individual cases (Section 12a, Paragraph 1, Sentence 5 of the StAG in conjunction with Section 61 of the StGB).
If I commit a crime, am I permanently barred from naturalization?
No, committing criminal offenses only leads to a temporary exclusion from naturalization. In this respect, there is a so-called prohibition on exploitation if the penalties have been erased from the Federal Central Register (Section 51 BZRG).
Crime Naturalization: When can I apply for naturalization after a crime?
When you can apply for naturalization after a crime depends on when the conviction is deleted from the Federal Central Register. The deletion periods according to Section 46 BZRG are:
5 years as a rule,
10 years for serious crimes,
15 - 20 years for capital crimes.
5. Central Register of Foreign Nationals and Schengen Information System
The Central Register of Foreign Nationals (AZR) and the Schengen Information System (SIS) are particularly relevant in the context of criminal law relating to foreign nationals. Both databases store criminal offenses and security-relevant information about foreign nationals. The police and other security authorities can then access the data and derive certain consequences from it (e.g. an entry ban or the refusal of certain services).
5.1 The Central Register of Foreigners (AZR)
The Central Register of Foreigners consists of a general database and a separate visa file. The Central Register of Foreigners is maintained by the Federal Office for Migration and Refugees (registration authority). The Federal Office of Administration processes the stored data on behalf of and in accordance with the instructions of the Federal Office for Migration and Refugees (Section 1 AZRG). All data on a foreigner is stored in the AZR (i.e. not just criminal offenses). The Central Register of Foreigners thus serves as a data pool for all authorities that rely on data from foreigners. The data stored in the AZR is therefore particularly sensitive, as an entry in the AZR can have serious consequences. If in doubt, the Central Register of Foreigners should therefore be checked before taking important legal steps and, if necessary, deletion of the data should be requested.
Every foreigner has the right to information about the data stored about him or her in the Central Register of Foreigners (§ 34 AZRG). If you would like to apply for a corresponding AZR extract, you can contact the Federal Office of Administration. The Federal Office of Administration provides all the necessary information on applying for an AZR extract on its website . If in doubt, a lawyer specializing in immigration law can help you apply for the AZR extract.
5.2 The Schengen Information System
The Schengen Information System (SIS) is a central database used by the countries of the Schengen area to exchange information on wanted or missing persons, stolen objects and security threats. It facilitates cross-border cooperation between law enforcement authorities and enables a faster and more efficient response to crime and illegal activities. The SIS makes a significant contribution to security in the Schengen area by ensuring that relevant information is shared quickly and reliably between member states.
The German authorities also publish entries about foreigners in Germany in the SIS. Unlike the Central Register of Foreigners, however, the Schengen Information System does not record minor crimes, but only actual security threats. An entry in the SIS is therefore rather rare. However, if one does exist, it can have a massive impact on the freedom of travel of foreigners. In this respect, all European security services (especially at airports and border crossings, for example) can access the SIS data. In the worst case, an entry in the Schengen Information System can then lead to an entry ban.
However, foreigners also have a right to information regarding their data in the Schengen Information System (right to information according to Section 34 of the Federal Data Protection Act). The Federal Criminal Police Office (BKA), as the national contact point for the German SIS (so-called "SIRENE"), provides extensive information on its website on how to assert the right to SIS information. If in doubt, a lawyer specializing in immigration law can help you assert the right to information under the Schengen Information System.
CONTACT US
Are you looking for a lawyer in German immigration and foreigners law? Our lawyers will be happy to support you in residence procedures before embassies, immigration authorities and administrative courts in Germany..
Contact us to book a consultation via video call! with a German Attorney for immigration law!
VISAGUARD.Berlin Legal Services
6. FAQ (Overstay)
Am I overstaying if I exceed my Schengen visa as a national of a Schengen state?
In legal theory, it is disputed whether nationals of Schengen states commit overstaying if their Schengen visa (e.g. for working) has expired. In this respect, it can be argued, for example, that the visa-free period of stay is to be added to the Schengen visa. Thus, positive citizens can stay in Germany for 180 days with a Schengen visa (90 days with a Schengen visa and 90 days without a visa). However, the authorities often see this differently and it entails various legal difficulties. If in doubt, you should consult a specialist lawyer for migration law.
Am I also liable to a penalty if I overstay by just one day?
Yes, even an overstay of just one day will result in a penalty. However, the principle of proportionality applies under residence penalty law, which is why minor overstays are generally penalised less than longer overstays.
Am I overstaying if my Schengen visa is still valid but the 90 days have expired?
Yes, from a legal point of view there is no difference between your Schengen visa having expired or the 90 days having expired.
Am I overstaying if I have a valid visa but am working illegally?
Yes, you are also overstaying if you have a valid visa but are working illegally. The illegal work makes the entire stay illegal.
Does my stay become overstayed if my Schengen visa is cancelled?
Yes, if your Schengen visa is cancelled and you continue to stay in Germany, your stay becomes illegal/overstayed.
Can I go to prison for overstaying?
Yes, overstayers can be punished with a prison sentence and can also be taken into custody to enforce their obligation to leave the country (Section 62 (3) sentence 1 no. 2 of the Residence Act).
How high is the fine for an overstay?
In practice, most overstays are punished with a fine of €500.00 - €5,000.00. Administrative costs may be added to this. In the worst case, the administrative costs can be significantly higher than the actual fine, as costs of €5,000.00 - €20,000.00 may be incurred for the forced deportation of a foreigner.
Can I avoid overstaying with a border crossing certificate (GÜB)?
No, the border crossing certificate (GÜB) only specifies the date of departure, but does not make the stay legal.
Do the days of entry and departure count towards the 90-day limit?
Yes, the day of entry and the day of departure count towards the calculation of the permitted stay with a Schengen visa or with a visa-free stay.
How do I calculate the permitted Schengen times?
The permitted length of stay with a Schengen visa can be calculated using the Short-Stay Schengen Calculator of the European Commission.
How can I find out whether an entry ban has been imposed on me?
The entry ban is issued in the form of a written notification. This means that you will be informed by letter if an entry ban has been imposed on you.
I do not live in Germany. How can I find out if an entry ban has been imposed on me if I do not have an address in Germany?
If you do not live in Germany, you can submit a request for information. The request for information can be submitted to the Federal Office of Administration (Central Register of Foreigners) or to the Federal Criminal Police Office (BKA) (Schengen Information System). The Federal Office of Administration provides a special application form for requests for information from the Central Register of Foreigners.
Do I need a lawyer to request self-disclosure from the Central Register of Foreigners (AZR)?
No, the right to self-disclosure from the Federal Office of Administration for access to the Central Register of Foreigners (AZR) can be asserted without a lawyer.
What does a right to self-disclosure from the Federal Office of Administration cost?
Self-disclosure from the Federal Office of Administration costs €56.43.
What criminal offences under residence law can foreigners commit in Germany?
The following criminal offences play a role in residence law:
- Overstay (Sec. 95 (1) no. 3 Residence Act)
- Unauthorised entry (Sec. 95 (1) no. 3 Residence Act; Sec. 14 (1) nos. 1, 2 Residence Act)
- False information in the visa procedure (§ 95 para. 2 no. 2 AufenthG)
- Stay in Germany without passport (§ 95 para. 1 no. 1 AufenthG, § 3 AufenthG)
- Illegal employment of foreigners/black market work (§ 11 SchwarzArbG)
- Smuggling of foreigners (§§ 96, 97 AufenthG)
- Incitement to file an abusive asylum application, § 84 AsylG
- False statements in the asylum procedure, § 95 para. 1 no. 5, para. 2 AufenthG (also for participants (§ 84 AsylG and also in the revocation procedure (also revocation procedure, § 73b para. 5a AsylG nF),
- violation of residence restrictions § 95 (1) no. 7; § 61 (1), (1c) Residence Act)
- child abduction by leaving the country
- identity fraud
- social security fraud
What are the grounds for detention under the law on residence?
The following grounds for detention exist under migration law:
- Preventive custody § 62 (1), (3) to (6) Residence Act in conjunction with the Return Directive - ABH
- Transfer custody (‘Dublin custody’), Art. 28 Dublin III Regulation
- Departure custody (‘custody light’), § 62b Residence Act - ABH
- rejection custody
- transit custody
- removal custody
- preparation custody
- additional preparation custody
- cooperation custody
What options do I have to find out whether there are entries about me in the foreigners‘ databases?
If you are concerned that you may have entries in the foreigners’ databases, you can request information from the following databases:
- Schengen Information System (SIS)
- Central Register of Foreigners (AZR)
- Alien file (inspection of records)
- Federal Office for Migration and Refugees (BAMF)
- Federal Employment Agency (Freedom of Information Act (IFG))
Can I be arrested as a foreigner without a court order?
No, a planned arrest without a judicial decision is always unlawful. In this respect, only the judge can decide on the permissibility of a deprivation of liberty. A judicial decision must be obtained without delay for any deprivation of liberty not based on a judicial order. The police themselves may not hold anyone in their custody for longer than until the end of the day following their arrest (Art. 104 of the Basic Law). To implement the requirement that a judge rule on the detention, on-call services are to be set up at the courts (Federal Constitutional Court, order of 12 March 2019 – 2 BvR 675/14). According to the case-law of the Federal Constitutional Court, the on-call service must be set up at least between 6 a.m. and 9 p.m.
Further Information about this topic
Literature: BeckOK AuslR, 42nd Ed. 1.7.2022, AufenthG § 95 Rn 1 - 112
Literature: Huber/Mantel AugenthG/Hörich/Bergmann AufenthG § 95
