Overstay in Germany - repercussions on future family reunion visa application
My wife and 2 year old child had a family visit visa to visit me in Germany from India. The visa was valid from the 29th August 2019 to the 4th October 2019 and the number of valid days was 22. So, she should have left by 19th September but we misinterpreted that and she left on 21st September 2019.
She was stopped at Frankfurt border control and she was charged with an offence under section 95 Abs. 1 Nr. 2 AufenthG. There were no remarks made in her passport and she was told that she will be served with a penal order and the letter will be sent to her Indian address.
I have a Blue Card and my wife intends to apply for Family Reunion Visa as soon as possible from India. Now my questions are as follows:
- Do you have any idea how much time it takes for the decision to be made on the case with which she has been served? I hope that she gets served with a fine and no bans. This is her first offence and for two days only, But I have also heard that Germany has a very strict approach towards these mistakes and I am worried.
- Is there any place in Germany where I can enquire about the status of her case? She had been given the address and phone number of two court clerks who will forward the court order to her. I will obviously contact them. But is there any other place that I can ask?
- Should she wait for the decision to be made and then apply for the Family Reunion Visa in India?
- If she applies for the Family Reunion visa before the decision is made should she confirm in the application that she was convicted in Germany as yes? Technically she has only been charged and not yet convicted and the question in the form also asks for the nature and duration of penalty. She will not know that unless the decision is made.
Both of us are literate and we are deeply ashamed to have made such a mistake. Also we are eager to be re-united as a family and this is a problem that we did not envisage at all. So any advice will be really appreciated.
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A few updates from my side:
I employed services of a lawyer in Essen. She wrote to Bundespolizei first explaining my situation and asking for a quick decision and preferably a fine of less than 90 days of income. No response received to that. Later she spoke to one of the Frankfurt court clerks (on Dec 5th). He said that there is no letter received for my wife so far. Then my lawyer faxed the same letter that she sent to the Bundespolizei, to him. She is still awaiting a reply from him
On several occasions I was able to talk to the same court clerk that my lawyer also talked to, and every time he said that there is no letter yet for my wife. I also requested him to send the decision to my Deutsch address. He agreed to it but only after I sent him a formal letter with a Vollmacht from my wife. The last I spoke to him (on Nov 7th), he said there was still no letter and kindly gave me the number of the public prosecutor. I called him/her but no one picked the phone.
On one occasion I was able to reach the Bundespolizei helpline number (on Nov 7th) and they said that they have not yet sent her case to court and it will take at least one more month to do so, if not more. I have not called them since.
In the meantime my wife applied from India for her and my kid's visa in the first week of November. She gave full details of the case as well and hid nothing. She got a positive decision in 6 weeks. Now their passports have also been stamped and she is preparing to travel in Feb 2020.
So now I have the following questions:
I am not yet aware of the decision of the case. How do I know that? I will obviously call Bundespolizei and the Court Clerk again next week, but is there any other way? Reaching them is always a matter of luck.
Though my wife has the valid visa, do you anticipate any issues at the Border Control? I guess she will be asked about the incident for sure and we will ensure that all the documents and letters are there with us to explain. But I hope she will not be barred from entering the country? If they ask for a fine I am ready to pay it.
Since she has been given a positive decision on her visa application, can I also assume that the case has been closed? I have read in other places that in case of minor offences as these, the Bundespolizei closes the case after 90 days.
I will ask my lawyer also. But to be truthful, she seems pretty lost herself. She has not been able to advise me confidently about anything so far.
Recent update:
I got a letter from the court of Frankfurt with the following message:
"das Ermittlungsverfahren gegen XXXX wegen Verstoß gegen das Aufenthaltgesetz habe ich eingestellt" This is signed by a "Oberamtsanwalt".
I will talk to my lawyer about this. But I believe that this means that the case has been dropped. Is that correct?
Best Answer
German courts are overloaded with cases of illegal immigration. All much more serious than this one.
As the odds are, you very unlikely ever go to court about this. Most likely your wife gets a friendly but assertive letter from the prosecutor (his secretary in reality) he will dismiss the matter on the payment of a fine.
- You absolutely have to pay this fine. In time.
It may even be without a fine but to find that out you have to be able to understand the letter written in Juristendeutsch thoroughly, and this might be a challenge to you. — It's a challenge to most Germans. So getting a lawyer just for this right now is a good idea.
And of course, your wife has to give a copy of that letter from the prosecutor in all her further visa appliances. They know anyway but they want to know if she's trying to cheat.
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Does overstaying affect spouse visa application?
There are many different specifications within this rule, and in some cases minor overstaying will not have an overruling impact on a spouse visa application. The popularity of the spouse visa means that the Home Office will very carefully check your application and will be looking very closely to find any faults.What happens if I overstay my visa in Germany?
Overstaying the Schengen Visa allowance of 90 days within 180 days is not without consequences. Remaining after the expiry period may constitute a stay without a corresponding residence permit and will be prosecuted in Germany as a criminal or administrative offence.Can you go to jail for overstaying your visa in Germany?
You may be deported immediately, within just a few hours or after a few days. On the other hand, if you get caught engaging in paid activity while overstaying your visa, or engaging in illegal activities, you will most possibly be taken into custody where you will wait for your trial.What happens if you overstay your 90 days in Germany?
The Schengen law states that you can't stay in the Area for more than 90 days. If you do, you're subject to a fine and possibly deportation and being banned from re-entering the Schengen Area.GERMANY FAMILY REUNION VISA REQUIREMENT | RELOCATING FROM NIGERIA TO GERMANY | BLUE CARD VISA | PRT1
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Answer 2
I cannot really answer the points 1 and 2. Concerning 4, the general way German law works is that you are innocent until convicted by a court, that conviction has been delivered to you and you choose not to appeal. Until then, she is legally innocent (but it may be a good idea to mention that a case has not been decided upon).
That said, the answer to point 3 and in general to your entire situation is get yourself legal advice immediately! Germany is said to be (and often quite proud of that assumption) a very bureaucratic place where this type of innocent mistake can lead to unpleasant consequences if not addressed adequately. The place to get good advice is not from random people on the internet but from a qualified legal expert. It is not important where the lawyer’s office is; any lawyer can represent you anywhere in Germany.
The Federal Police (Bundespolizei) are unlikely to help you in any way: the case whose decision you and your wife are awaiting is not in their competence (judicative duty, not executive) and they are not trained to give you legal advice. (Anything your lawyer advises you to do obviously supercedes all advice I may give.)
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