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I came to Frankfurt about 5 months ago with a tourist visa that is already expired. I decided to stay more time because I met a very special person (my current girlfriend) and I had hoped to find a way to legalize my situation here but I found out that is not possible so I decided to go back to my country Colombia with her and plan to come back legal.

I know that in the airport they will let me go out, but I am afraid to get a ban for the next months/years and I really would like to minimize that. I have talked with a lawyer and he told me that Frankfurt is very strict about this issue and I can get a penal infraction. He recommend me to flight out by Madrid because there, it is only an administrative procedure. So my current plan is to rent a car with my girlfriend and drive to Spain for 16 hours and leave EU.

It is worth to do this? I am trying to minimize the possibilities to get a ban.

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    You could just fly to Spain instead: visas aren't checked for flights within Schengen, and it would probably be a lot cheaper. – lambshaanxy Feb 15 '15 at 23:31
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    So by best, you mean - the optimal solution for minimizing or avoiding penalties? – Mark Mayo Supports Monica♦ Feb 15 '15 at 23:34
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    "...come back legal..." How? You'll ask everyone to close their eyes and count to 10? You'll have the exit recorded in the Schengen computer regardless. – Gayot Fow Feb 16 '15 at 0:05
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    @TouristFrankfurt That's how Schengen works, there are no border controls inside it. – lambshaanxy Feb 16 '15 at 0:32
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    I have first hand experience in traveling within Schengen area without being a citizen here. I would say 50% of the time they still check visas to make sure the person traveling is not here illegally. So according to my experience, if you take a flight to Spain from Germany, you have a 50% chance to get caught without even making it to Spain. You decrease that risk hugely in case you don't have a check-in luggage or you can do a baggage drop at a counter without employees as these: frankfurt-airport.com/content/frankfurt_airport/en/… – downhand Feb 16 '15 at 7:29
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I don't know precisely what your chances are and I suspect there is no official public statistics on this so that the people who do know would have learned that in the course of their duty and would be reluctant to provide many details on the record. Also, I don't know Spanish law at all. But I can confirm a few things:

  • Which sanction you can expect is indeed going to depend on the country. The Schengen regulations define what is or isn't allowed (e.g. the 90 days limit) but not exactly what happens when you break the rules. There is also something called the “Return Directive” and some case law based on it but I don't think it's relevant in your situation as there hasn't been any decision asking you to leave the territory yet.
  • There is a Schengen-wide infrastructure to enforce (re)entry bans called the SIS. This means that if you do get a ban, whether in Spain, in Germany or elsewhere, there will be an entry in a database that consular posts abroad and border checkpoints of all countries in the Schengen area (including Germany) can access.
  • There are wide disparities between countries in how they use the SIS. Informal sources suggested to me that Germany almost systematically issues reentry bans for any infringement to the law on entry and stay and accounts for a large portion of the “unwanted alien” alerts in the SIS so they do seem very strict about it.
  • Spain does appear to make only limited use of “unwanted alien” alerts (i.e. entry bans). Those stats are now over 10 years old and many things have changed in Spain since then but in 2003, there were about 10,000 bans originating in Spain in the database, compared to 300,000 for Germany or Italy, and 50,000 for France or Greece. If you consider the size and the circumstances of the country, they do seem to be very restrained in their use of entry bans.
  • Even if you don't get a ban, you might still get a hefty fine (several hundred euros).
  • Your overstay will in any case be apparent in your passport because you will get a stamp showing you exited two months late. When you approach them to get a spousal visa (or whatever other plan you have to come back legally), the German consulate in Colombia will be able to see that. It's not necessarily a deal breaker for spousal visas but could be for other types of visas.
  • In some countries, periods of illegal stay are also a valid reason to refuse naturalisation down the line, even after coming back into the country legally/finding a way to legalize one's situation. Now, that's a completely different question and you can't do anything about it now but I mention this so that other readers realize that even if you don't get a ban these things can haunt you for a long time.

All in all, this Spanish exit seems worth trying but that's not enough to be completely out of trouble and there is still a long road ahead in any case. Good luck!

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  • +1 for the stats and your final dot point. Any description about what the 'administrative procedure' in Spain entails? – Gayot Fow Feb 16 '15 at 1:03
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    It's a Council Directive 2004/38/EC, if the OP's strategy is family, the whole question is mood except for the exit fine. Certainly cheaper than a car rental :) – Gayot Fow Feb 16 '15 at 1:23
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    @GayotFow True, I didn't think about that. But that directive would be relevant for non-German citizens and not necessarily for German citizens in Germany (except if they try something like the Surinder Singh route obviously), or am I missing something? – Relaxed Feb 16 '15 at 1:26
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    @GayotFow I know that the Singh loophole was developed in a completely different context but since it's a way to get freedom of movement rights in your home country, it could also be a way to get this aspect of the directive back in. My main point was that if the OP's friend is German (he did not specify that), the directive does not readily apply. At least, that's my understanding. – Relaxed Feb 16 '15 at 1:55
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    ... Also on those lines trying to depart from Belgium looks even better than Spain. I was going to suggest going by car to Denmark and flying from there via Iceland... they're really not strict on those routes, though you'd have to fly through the US or Canada since those are the only flights out of Iceland. – Carl Feb 16 '15 at 19:39

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