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.

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.

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?

  • 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, 2019 at 16:24
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    You might want to contact a lawyer.
    – mdd
    Sep 23, 2019 at 16:43
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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, 2019 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, 2019 at 5:16
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    Since the Visa (D-Visa?) was issued knowing about the case, there should be no problems. If the Visa issued is a Family Reunion Visa D-Visa, the case itself will probably be dropped once known to the Bundespolizei/Court due to insignificance - Geringfügigkeit (§ 153 StPO). Jan 2, 2020 at 1:15

3 Answers 3


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

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.

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,

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.


  • Thanks a lot @MarkJohnson. I will talk to my lawyer about this.
    – Vivre
    Jan 2, 2020 at 15:00
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    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?
    – Vivre
    Jan 19, 2020 at 11:10
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    @Vivre Yes, that is correct. The matter is now over. Further text may give the reason why. Possibly due to insignificance. Consider accepting one of the answers. Jan 19, 2020 at 11:16
  • @Vivre Did the lawyer send a letter asking for the case to be dropped as I suggested? Jan 19, 2020 at 11:25
  • Thanks. Yes she did send the letter after I informed her of the Type D visa decision. Also in the letter this is all that is written. No further comments or explanations.
    – Vivre
    Jan 20, 2020 at 21:34

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?
    – user58558
    Sep 25, 2019 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, 2019 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, 2019 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, 2019 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, 2019 at 17:58

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?
    – user58558
    Sep 24, 2019 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, 2019 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.
    – user58558
    Sep 25, 2019 at 10:32
  • @greatone Unfortunately that I don’t know.
    – Jan
    Sep 25, 2019 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, 2019 at 17:55

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