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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.

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A few updates from my side:

  1. 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

  2. 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.

  3. 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.

  4. 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:

  1. 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.

  2. 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.

  3. 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?

  • 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 '19 at 16:24
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    You might want to contact a lawyer. – mdd Sep 23 '19 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 '19 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 '19 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). – Mark Johnson Jan 2 at 1:15
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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 Cousulate knew about it and issued the visa anyway may even assist in the closing of the case alltogether.

Since § 95 Abs. 1 Nr. 2 AufenthG 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, meantioning the issued Family Reunion Visa, to drop the case (due to § 153 StPO) would probably speed up the matter.


Section 95 (AufenthG)
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 (StPO)
Non-Prosecution of Petty Offences

(1) If a misdemeanour [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 misdemeanour 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.


Sources:

  • Thanks a lot @MarkJohnson. I will talk to my lawyer about this. – Vivre Jan 2 at 15:00
  • 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 at 11:10
  • @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. – Mark Johnson Jan 19 at 11:16
  • @Vivre Did the lawyer send a letter asking for the case to be dropped as I suggested? – Mark Johnson Jan 19 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 at 21:34
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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 '19 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 '19 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 '19 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 '19 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 '19 at 17:58
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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 '19 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 '19 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 '19 at 10:32
  • @greatone Unfortunately that I don’t know. – Jan Sep 25 '19 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 '19 at 17:55

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