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:

  1. 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.
  2. 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?
  3. Should she wait for the decision to be made and then apply 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 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.

  • I can't answer your question, but I would point out that in some jurisdictions the grounds for refusing a family visa are more restricted. If this is true in Germany, then it might be that any ban imposed would be inapplicable to her application for the FR visa even if it would prevent her from applying for a subsequent tourist visa. If she is given a ban, you should look into that. In any case, presenting it as you have done here, as an honest mistake, is probably your best bet. – phoog Sep 23 at 16:24
  • You might want to contact a lawyer. – mdd Sep 23 at 16:43
  • She should make the application now with a letter explaining the situation including any paperwork she has received from the border control. – Mark Johnson Sep 23 at 16:56
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    I agree with mdd. This is serious enough to hire a qualified lawyer. The right to family reunions is quite strong when one partner is German, no idea how it works out in your case. – o.m. Sep 23 at 17:11
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    @Vivre, I expect that a lawyer in Essen will be enough. Something like that can be handled in writing, without court appearance. I would not go to the Bundespolizei unless the lawyer tells you so and helps with translation. A few days won't matter, and if details are lost in translation the police might misunderstand you. Your wife wants to stay in Germany, just not right now, getting that across clearly is important. – o.m. Sep 24 at 5:16

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.)

  • Can someone be convicted without a court appearance and without a realistic chance to appear and defend? – greatone Sep 24 at 18:48
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    @greatone Yes, for certain less serious offences there is a procedure whose name I’ve forgotten where basically the prosecutor and judge agree that given the evidence the most likely outcome is a fine of x euros which is then sent to you. However, you can always object and thus trigger a full hearing. – Jan Sep 25 at 8:52
  • Is there a “public interest” test to determine whether or not to prosecute? In the case of an appeal, I assume that the German court would be obliged to facilitate the full hearing requested, which might be contrary to “public interest” viewing the pettiness of the crime and associated costs of the trial. But again, Germany. Many countries criminalize overstaying but most only prosecute when the crime is serious. – greatone Sep 25 at 10:32
  • @greatone Unfortunately that I don’t know. – Jan Sep 25 at 10:45
  • @Jan Thanks for your advice. I have already contacted a lawyer and I have an appointment to meet her on 8th October. I would have wanted to have an earlier date but after searching with the filters of Immigration Law, English Speaking and good ratings, I could find only a few options in Essen. – Vivre Sep 25 at 17:55

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.

  • Will that fine count as a criminal conviction? – greatone Sep 25 at 10:35
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    @greatone In general, fines count as convictions if you are sentenced to more than 90 days worth of income (German court fines (Geldstrafe) are generally handed down as a number of days between 1 and 360 and the actual amount is calculated based on your net income broken down to a day). – Jan Sep 25 at 10:49
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    Expect a fine of about 150 Euro. And no, this won't count as a criminal conviction. German law makes a huge difference between Ordnungswidrigkeit, Vergehen and Verbrechen and your wife's offense is in the very first group – it's only two days. – Janka Sep 25 at 16:04
  • @Janka Thank you very much for your detailed reply. I have taken an appointment with a lawyer in Essen and I have got a date of 8th October to meet her. I have one more query. Do you know if these letters actually reach foreign addresses? My wife gave her Indian address (I think she should have given my address in Essen). Can I appeal to receive the letter in my Essen address? That way we can ensure that we receive the letter in time to pay the fine within the statutory period. – Vivre Sep 25 at 17:38
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    I don't think you will get a reaction before end of October. And yes, those letters should reach her in India too,assuming the post office there is functional. (Caveat: If it isn't, it's her fault to the German officials, no discussions.) Please follow your lawyer's advice. – Janka Sep 25 at 17:58

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