Overstay in Germany - repercussions on future family reunion visa application

Question

My wife and two-year-old child had a family visit visa to visit me in Germany from India. The visa was valid from August 29th, 2019 to October 4th, 2019, with a total of 22 valid days. We misinterpreted this and she left on September 21st, 2019 instead of September 19th.

She was stopped at Frankfurt border control and 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 would receive a penal order sent to her address in India.

I have a Blue Card and my wife intends to apply for a Family Reunion Visa from India as soon as possible. I have the following questions:

1. Do you have any idea how long it will take for a decision to be made on the case that she has been served with? I hope that she will only receive a fine and no bans, as this is her first offence and it was only for two days. However, I have heard that Germany has a very strict approach towards these mistakes and I am worried.
2. Is there any other place in Germany where I can enquire about the status of her case? She was 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?
3. Should she wait for the decision to be made before applying for the Family Reunion Visa in India?
4. 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 until the decision is made.

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A few updates from my side:

1. I hired a lawyer in Essen who wrote to the Bundespolizei to explain my situation and asked for a quick decision with a fine of less than 90 days of income. No response was received. Later, she spoke to one of the Frankfurt court clerks on December 5th and he said that there was no letter received for my wife. My lawyer then faxed the same letter to him and is still awaiting a reply.

2. On several occasions, I was able to talk to the same court clerk and he said that there was still no letter. I asked him to send the decision to my German address and he agreed to do so after I sent him a formal letter with a Vollmacht from my wife. The last time I spoke to him was on November 7th and he said there was still no letter and gave me the number of the public prosecutor. I called the public prosecutor but no one answered.

3. On November 7th, I was able to reach the Bundespolizei helpline number and they said that they had not yet sent her case to court and it would take at least one more month to do so, if not more. I have not called them since.

4. Meanwhile, my wife applied for her and my kid's visa from India in the first week of November and gave full details of the case. She received a positive decision in 6 weeks and their passports have been stamped. She is preparing to travel in February 2020.

Additional questions:

1. I am not yet aware of the outcome of the case. I will call the Bundespolizei and the Court Clerk again next week, but is there any other way to find out? It is often difficult to get in touch with them.

2. Will my wife have any issues at the Border Control, even though she has a valid visa? We will make sure to have all the necessary documents and letters to explain the incident, but I hope she will not be barred from entering the country. If they ask for a fine, I am prepared to pay it.

3. Since she has been given a positive decision on her visa application, can I assume that the case has been closed? I have read that the Bundespolizei usually closes cases like this after 90 days.

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Latest update:

I received a letter from the court of Frankfurt signed by "Oberamtsanwalt" which said: "das Ermittlungsverfahren gegen XXXX wegen Verstoß gegen das Aufenthaltgesetz habe ich eingestellt". I am going to discuss this with my lawyer, but I think this means that the case has been dismissed. Is that correct?

Answer 1

Since the D-Visa (Family Reunion Visa) was issued by the Consulate knowing about the case, there should be no problems on re-entry.

The fact that the Consulate knew about it and issued the visa anyway may even assist in the closing of the case altogether.

Since § 95 Abs. 1 Nr. 2 Aufenthaltsgesetz is a Vergehen

• anything where the minimum punishment by less than a year or a money fine

the condition is fulfilled for

• Geringfügigkeit (§ 153 Strafprozeßordnung).

The case itself will probably be dropped once known to the Bundespolizei/Court due to insignificance (Geringfügigkeit).

An application by the lawyer, mentioning the issued Family Reunion Visa, to drop the case (due to § 153 StPO) would probably speed up the matter.

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Section 95 (Aufenthaltsgesetz)
Penal provisions

(1) The following persons shall be punishable with up to one year’s imprisonment or a fine: anyone who

1. resides in the federal territory in contravention of Section 3 (1) in conjunction with Section 48 (2),

2. resides in the federal territory without a necessary residence title pursuant to Section 4 (1), sentence 1, if

a) he is enforceably required to leave the federal territory,

b) he has not been granted a period for departure or this has expired and

c) his deportation has not been suspended,

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Section 153 (Strafprozeßordnung)
Non-Prosecution of Petty Offences

(1) If a misdemeanor [Vergehen] is the subject of the proceedings, the public prosecution office may dispense with prosecution with the approval of the court competent to open the main proceedings if the perpetrator’s guilt is considered to be of a minor nature and there is no public interest in the prosecution. The approval of the court shall not be required in the case of a misdemeanor which is not subject to an increased minimum penalty and where the consequences ensuing from the offence are minimal.

(2) If charges have already been preferred, the court, with the consent of the public prosecution office and the indicted accused, may terminate the proceedings at any stage thereof under the conditions in subsection (1). The consent of the indicted accused shall not be required if the main hearing cannot be conducted for the reasons stated in Section 205, or is conducted in his absence in the cases referred to in Section 231 subsection (2) and Sections 232 and 233. The decision shall be given in a ruling. The ruling shall not be contestable.

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Sources:

• § 153 Strafprozeßordnung
• § 95 Aufenthaltsgesetz

Answer 2

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.

Answer 3

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.)