.png)
Criminal law for foreigners
Overstay Lawyer: All information on residence law and the consequences of criminal offenses for foreigners in Germany.
Share:
About this Page
what an overstay is and what consequences an overstay has
how the investigation and criminal proceedings against foreigners are carried out
what consequences a crime has for naturalization
whether and when you can be deported from Germany
Table of Contents
1. What is criminal law for foreign nationals?
2. What crimes can foreigners commit while in the country?
2.1 Overstay Germany
2.2 Illegal entry
2.3 False information in the visa procedure
2.4 Staying in Germany without a passport
2.5 Illegal employment of foreigners/undeclared work
3. Criminal proceedings for foreigners
3.1 Appointment of an authorized representative
3.2 Police investigations
3.3 Conclusion of the procedure
4. Consequences of crimes for foreigners
4.1 Consequences of criminal offenses for residence permits (bar on issuing permits)
4.2 Consequences of criminal offenses for future entries (entry ban)
4.3 Consequences of criminal offenses for naturalization (naturalization ban)
5. Official data collections on foreigners in Germany (AZR and SIS)
5.1 Central Register of Foreign Nationals (AZR)
5.2 Schengen Information System (SIS)
6. FAQ on Criminal Law for Foreigners
7. Conclusion
1. What is criminal law for foreign nationals?
Migration criminal law is a special criminal law that applies only to third-country nationals. Criminal law relating to immigration applies, in principle, to all persons subject to residence, freedom of movement, citizenship, and humanitarian law. This currently amounts to approximately 10 million people in Germany. Accordingly, different criminal law rules apply to these individuals. According to the legislature, this is intended to bring about a " stabilization of the administrative law systems ."
Please note that the following text on criminal immigration law does not authorize you to represent yourself in criminal proceedings. If you are accused of a crime as a foreigner, you should contact a lawyer!
2. What crimes can foreigners commit while in the country?
2.1 Overstay Germany
2.1.1 Penalty without a visa in Germany
One of the most common crimes committed by foreigners in Germany is the so-called "overstay." Overstay refers to cases in which a foreigner stays in Germany even though their residence permit (e.g., visa) has expired . Therefore, every (non-European) foreigner requires a visa or residence permit (Section 4 of the Residence Act) to stay in Germany. Most foreigners require a visa simply to enter the country ( you can check the visa list of the Federal Foreign Office to see whether you need a visa to enter Germany ). In many cases, this entry is made with a Schengen visa. Even if you don't need a visa to enter the country, a residence permit is necessary if you intend to work or if you intend to stay in Germany for more than 90 days within a 180-day period. Exceeding this permitted period of stay is referred to as "overstay." Such an overstay is possible in the following situations...
… your Schengen visa has expired and you are still staying in Germany ( Schengen overstay ),
… your Schengen visa is still valid, but you have exceeded the 90 days ( overstay with a valid visa ),
… you have exceeded your visa-free period of 90 days within 180 days ( overstay of positive state ),
… you are working illegally in Germany with a Schengen visa ( illegal work stay ).
2.1.2 How do you calculate an overstay?
Whether an overstay occurs is determined by whether you have exceeded your permitted length of stay of 90 days within 180 days . The calculation is not as simple as it first appears, since 90 days does not automatically equal three months. To calculate the permitted length of stay with a Schengen visa (or with a visa-free stay), you can use the European Commission's Short-Stay Visa Calculator . In the European Commission's Short-Stay Calculator, you simply need to enter your travel dates to find out when your permitted stay in Germany or the European Union ends. If your overstay is not based on a Schengen stay, the start of the overstay is simply determined by the expiry date of your residence permit.
2.2 Illegal entry
Another crime that foreigners can commit is unauthorized entry. Illegal entry occurs when a foreigner enters the country without a passport or residence permit . This includes, for example, cases where the residence permit has already expired or has been lost. Crossing the border with a missing or expired passport can also constitute illegal entry.
2.3 False information in the visa procedure
In practice, it is relatively common for foreigners to provide false information when applying for a residence permit. This can constitute a criminal offense under the Residence Act. The false information can occur, for example, during the visa process (e.g., when completing the VIDEX form ) or when applying for a residence permit. Even if the false information is often based on a misunderstanding or is provided unintentionally, the public prosecutor's office can initiate appropriate investigations. This can have serious consequences for foreigners (see below).
2.4 Staying in Germany without a passport
Staying in Germany without a valid passport is also punishable under Section 95 Paragraph 1 No. 1 of the Residence Act and Section 3 of the Residence Act (imprisonment of up to one year). Therefore, every foreigner is required to have a recognized and valid passport or passport substitute . This is intended to ensure that the police and immigration authorities are able to verify the foreigner's identity at any time.
2.5 Illegal employment of foreigners/undeclared work
The illegal employment of foreigners and the illegal employment of foreigners also constitute criminal offenses. We have written a separate VISAGUARD article on the unauthorized employment of foreigners . If one of the aforementioned offenses has been committed, the public prosecutor's office, with the assistance of the police, will initiate an investigation against the foreigner. The process is outlined below.
3. Criminal proceedings for foreigners
3.1 Appointment of an authorized representative
Many foreigners wonder how the investigation process in Germany actually works. Indeed, there are a few special features in immigration law regarding contact with the police and public prosecutor's office. This applies, for example, to cases in which the foreigner has no residential address in Germany at all (e.g., in cases of an overstay during a business trip ). In these cases, a so-called authorized service agent is initially appointed at the local court (e.g., at the Erding Local Court for cases involving Munich Airport (MUC)). All decisions by the public prosecutor's office and the police are then initially forwarded to this authorized service agent.
3.2 Police investigations
After an authorized service agent has been appointed for the criminal proceedings, the investigation usually begins. During the investigation, the police research the facts of the case, for example, by consulting files (e.g., files from the immigration authorities or the embassy) and interview witnesses. It is also common to question the foreign national (interrogation of the accused). However, the foreign national is not obligated to assist the police investigation . This also applies to the interrogation of the accused. Therefore , as a foreign national, you do not have to speak to the police during the investigation (“nemo tenetur principle”)! From a legal perspective, speaking to the police is even strongly discouraged. If in doubt, simply state that you would like to speak to a lawyer beforehand. While this could be interpreted negatively, the consequences of speaking to the police are always significantly worse than if you are accused of inadequate cooperation. It should also be noted that cooperation with the police is never advisable, as the police have absolutely no power to influence the proceedings. The police are merely the investigative authority for the public prosecutor's office and have no decision-making powers of their own. Therefore, if at all possible, you should speak to the public prosecutor's office rather than the police.
3.3 Conclusion of the procedure
After the police have completed their investigation, they refer the case to the public prosecutor. The public prosecutor then reviews the file and decides on the next steps. In the best case scenario, the public prosecutor simply dismisses the case (e.g., due to the trivial nature of the offense or innocence). At this stage of the proceedings, a lawyer can be extremely helpful , as they are able to negotiate a dismissal with the public prosecutor (e.g., in exchange for payment of a sum of money).
If the public prosecutor's office does not discontinue the proceedings, they have the option of either issuing a penal order (§§ 407 et seq. of the Code of Criminal Procedure) or filing charges with a criminal court (§§ 198 et seq. of the Code of Criminal Procedure). In the case of a penal order, you only have to pay a fine. However, if the public prosecutor's office files charges with a criminal court, you will have to answer to the case before a German criminal court. As a foreigner, you should avoid this at all costs, as you face significant consequences under immigration law in the event of a conviction.
The court proceedings officially begin with the service of the indictment. This document is crucial as it forms the basis of the proceedings. The indictment tells you exactly what crimes you are accused of, as well as when and where they were allegedly committed.
After the criminal court, usually a district court, has opened the proceedings, an oral hearing is scheduled. This date is crucial because the main hearing takes place. Several people will be present during the oral hearing: a prosecutor representing the prosecution, most likely an interpreter to assist with communication problems, and, if you have appointed one, your lawyer.
During the hearing, the court will gather evidence and clarify legal issues. This includes hearing witnesses, presenting documents, and discussing the legal aspects of the case. It is crucial that you attend the hearing and present your case. Your attorney can help you protect your rights and ensure a proper defense.
4. Consequences of crimes for foreigners
Due to criminal law regarding foreigners, criminal convictions can have serious consequences for foreigners . This applies both within the actual administrative procedure and to the chances of obtaining a visa or residence permit at all. A particular problem is that the commission of a crime or the corresponding investigation is always reported to the immigration authorities. Therefore, the police, the public order office, the public prosecutor's office, and the courts are obligated to notify the immigration authorities of the initiation of criminal proceedings against foreigners (Section 87 (4) of the Residence Act). This virtually guarantees that crimes committed by foreigners will immediately lead to punishment by the immigration authorities (in addition to punishment by the public prosecutor's office/criminal courts).
During the procedure for granting a residence permit, the commission of a crime and the initiation of a corresponding investigation have the following consequences for foreigners :
Residence permits (including settlement permits) may not be issued (Section 79 (2) Residence Act),
Residence permits may not be extended (Section 79 (2) Residence Act),
the foreigner may not be naturalized (Section 12a (3) StAG),
the foreigner can be expelled from Germany (Section 54 of the Residence Act, Section 5 Paragraph 1 No. 2 of the Residence Act),
Humanitarian residence permits can be withdrawn or refused (in particular refugee status, Section 3 Para. 4 Asylum Act, Section 60 Para. 8 Residence Act, Section 25a Residence Act, Section 104c Residence Act).
In the worst case, committing crimes in Germany can also lead to detention or a prison sentence for foreigners. A fundamental distinction must be made between a prison sentence and "preventive detention." While a prison sentence is imposed by a criminal court to punish illegal residence, preventive detention is intended to enforce the departure of foreign criminals (e.g., overstayers). The imposition of a prison sentence as punishment for overstaying is comparatively rare, but preventive detention is entirely possible. Therefore, even US or British citizens (or other "positive state holders") can be detained for committing an overstay (Section 62 (3) Sentence 1 No. 2 of the Residence Act). However, since a prison sentence is the most severe punishment under the law, it is only imposed in serious cases or in cases of repeated offenses. An overstay of just a few days, for example, generally does not result in a prison sentence. However, this depends on the approach of the responsible public prosecutor or criminal court.
4.1 Consequences of criminal offenses for residence permits
Another common consequence that can affect foreigners who have committed a crime is a ban on obtaining a residence permit . As a rule, foreigners may not be granted a residence permit if there is an interest in deportation (Section 5 (1) No. 2 of the Residence Act). Such an interest in deportation often exists if the foreigner has committed crimes (Sections 53 and 54 of the Residence Act). Convictions of foreigners are generally recorded in the so-called " visa warning file " of the immigration authorities, which is maintained by the Federal Office of Administration. The visa warning file generally serves the visa authorities to prevent visa abuse. The file records not only criminal convictions, but also violations involving false statements, illegal employment, and improperly inviting foreigners. Organizations and associations can also be registered in the visa warning file. The following authorities have access to the visa warning file:
Foreign missions (Federal Foreign Office, embassies and consulates),
immigration authorities,
Police,
Public Prosecutor's Office,
Federal Office of Justice.
If a foreigner with a conviction is registered in the visa warning file, the issuance of a residence permit is only possible under difficult conditions.
4.2 Consequences of criminal offenses for future entries (entry ban)
The commission of crimes by foreigners not only directly impacts their current residence permit, but also their future entry into the country. German authorities can therefore impose a so-called entry ban on foreigners. As a result of the entry and residence ban, the foreigner is prohibited from entering the federal territory and the territory of other member states of the European Union or other Schengen states (Section 11 of the Residence Act). Once the entry ban is imposed, entry into the Schengen area is no longer possible. This can have serious consequences (particularly for business people and entrepreneurs).
4.3 Consequences of criminal offenses for naturalization
The commission of criminal offenses also plays a significant role in the naturalization process. Certain offenses can therefore block naturalization or interrupt the naturalization process if it is already underway.
What happens to my naturalization process if I commit a crime?
If a crime is committed during the naturalization process, the naturalization authority will stop the naturalization process until the investigation by the public prosecutor's office or the criminal court is completed.
Can I be naturalized despite committing crimes?
In principle, naturalization is barred if the applicant has committed a criminal offense. However, the law disregards minor offenses (Section 12a of the Citizenship Act). Therefore, the following offenses do not lead to a bar to naturalization:
Juvenile sentences (Section 12a, Paragraph 1, Sentence 1, No. 1 StAG),
Convictions of up to 90 daily rates (Section 12a, Paragraph 1, Sentence 1, No. 2 StAG),
Suspended sentences of up to 3 months (Section 12a Paragraph 1 Sentence 1 No. 3 StAG).
Can the revocation of a driver’s license or a professional ban also lead to a ban on naturalization?
Yes, so-called measures of reform (i.e. withdrawal of driving license and professional ban) can in individual cases lead to exclusion from naturalization (Section 12a Paragraph 1 Sentence 5 StAG in conjunction with Section 61 StGB).
If I commit a crime, am I permanently barred from naturalization?
No, committing criminal offenses only leads to a temporary exclusion from naturalization. In this respect, there is a so-called prohibition on exploitation if the criminal offenses have been expunged from the Federal Central Register (Section 51 of the Federal Central Register Act).
Crime Naturalization: When can I apply for naturalization after a crime?
When you can apply for naturalization after a criminal offense depends on when the conviction is expunged from the Federal Central Register. According to Section 46 of the Federal Central Register of Criminal Records Act (BZRG), the expungement periods are:
5 years as a rule,
10 years for serious crimes,
15-20 years for capital crimes.
5. Central Register of Foreign Nationals and Schengen Information System
In the context of criminal law concerning foreigners, the Central Register of Foreign Nationals (AZR) and the Schengen Information System (SIS) are particularly relevant. Both databases store criminal offenses and security-relevant information about foreign nationals. The police and other security authorities can then access the data and derive certain consequences (e.g., an entry ban or the denial of certain benefits).
5.1 The Central Register of Foreign Nationals (AZR)
The Central Register of Foreign Nationals consists of a general database and a separate visa file. The Central Register of Foreign Nationals is maintained by the Federal Office for Migration and Refugees (registration authority). The Federal Office of Administration processes the stored data on behalf of and in accordance with the instructions of the Federal Office for Migration and Refugees (Section 1 of the Central Register of Foreign Nationals Act). All data relating to a foreign national is stored in the Central Register of Foreign Nationals (not just criminal offenses). The Central Register of Foreign Nationals thus serves as a data pool for all authorities that rely on data on foreign nationals. The data stored in the Central Register of Foreign Nationals is therefore particularly sensitive, as an entry in the Central Register of Foreign Nationals can have serious consequences. If in doubt, the Central Register of Foreign Nationals should be reviewed before taking important legal steps, and deletion of the data should be requested if necessary.
Every foreigner has the right to information about the data stored about him or her in the Central Register of Foreigners (Section 34 of the Central Register of Foreigners Act). If you would like to request a corresponding AZR extract, you can contact the Federal Office of Administration. The Federal Office of Administration provides all the necessary information for applying for an AZR extract on its website . If in doubt, an immigration lawyer can assist you in applying for an AZR extract.
5.2 The Schengen Information System
The Schengen Information System (SIS) is a central database used by the Schengen Area countries to exchange information on wanted or missing persons, stolen property, and security threats. It facilitates cross-border cooperation between law enforcement authorities and enables a faster and more efficient response to crime and illegal activities. The SIS contributes significantly to security in the Schengen Area by ensuring that relevant information is shared quickly and reliably between member states.
The German authorities also publish entries about foreigners in Germany in the SIS. Unlike the Central Register of Foreigners, however, the Schengen Information System does not record minor offenses, but only actual security threats. Accordingly, an entry in the SIS is relatively rare. However, if one does occur, it can have a massive impact on the freedom of travel of foreigners. Therefore, all European security services (especially at airports and border crossings) have access to the SIS data. In the worst case, an entry in the Schengen Information System can lead to an entry ban.
However, foreign nationals also have a right to information regarding their data in the Schengen Information System (right to information pursuant to Section 34 of the Federal Data Protection Act). The Federal Criminal Police Office (BKA), as the national contact point for the German SIS (known as "SIRENE"), provides comprehensive information on its website regarding the exercise of the SIS right to information. If in doubt, an immigration lawyer can assist you in asserting your right to information under the Schengen Information System.
6. FAQ (Foreigners' Criminal Law)
Is it an overstay if my Schengen visa is exceeded as a positive national?
There is controversy in legal scholarship as to whether citizens of a positive nationality commit an overstay if their Schengen visa (e.g., for work) has expired. In this respect, it can be argued, for example, that the visa-free period of stay should be added to the Schengen visa.
Is there a penalty for an overstay of just one day?
Yes, even an overstay of just one day will result in a penalty. However, the principle of proportionality applies to residence law, which is why short overstays are generally punished less severely than longer overstays.
Is it an overstay if my Schengen visa is still valid but the 90 days have expired?
Yes, from a legal point of view, it makes no difference whether your Schengen visa has expired or whether you have simply exceeded the 90 days.
Is it an overstay if I have a valid visa but am working illegally?
Yes, an overstay also occurs if you have a valid visa but are working illegally.
Does it constitute an overstay if my Schengen visa is revoked/cancelled?
Yes, even if your Schengen visa is revoked and you continue to stay in Germany, this is considered an illegal stay/overstay.
Can I go to jail for an overstay?
Yes, overstayers can be punished with a prison sentence or taken into preventive custody to enforce the obligation to leave the country (Section 62 (3) Sentence 1 No. 2 Residence Act).
How much is the fine or penalty for an overstay?
In practice, most overstays are punished with a fine of €500–€5,000. Administrative costs may also apply. In the worst case, the administrative costs can be significantly higher than the actual fine, as the forced deportation of a foreigner, for example, can incur costs of €5,000–€20,000.
Do the days of entry and exit count when calculating the 90 days?
Yes, the day of entry and the day of exit count towards calculating the permitted stay with a Schengen visa or with a visa-free stay.
How do I calculate the permitted Schengen times?
The permitted length of stay with a Schengen visa can be calculated using the European Commission's Short-Stay Schengen Calculator .
How do I know if an entry ban has been imposed on me?
The entry ban is issued in writing. You will receive a letter informing you whether an entry ban has been imposed on you.
Do I need a lawyer to submit a self-disclosure to the Central Register of Foreigners (AZR)?
No, the right to self-disclosure at the Federal Office of Administration for access to the Central Register of Foreigners (AZR) can also be asserted without a lawyer.
How much does a self-disclosure request from the Federal Office of Administration cost?
The self-disclosure at the Federal Office of Administration costs 56.43 euros.
What crimes under immigration law can foreigners commit in Germany?
The following crimes play a role in residence law:
Overstay (Section 95 (1) No. 3 Residence Act)
Unauthorized entry (Section 95 (1) No. 3 Residence Act; Section 14 (1) Nos. 1 and 2 Residence Act)
False information in the visa procedure (Section 95 (2) No. 2 Residence Act)
Stay in Germany without a passport (Section 95 (1) No. 1 Residence Act, Section 3 Residence Act)
Illegal employment of foreigners/undeclared work (Section 11 of the SchwarzArbG)
Smuggling of foreigners (§§ 96, 97 Residence Act)
Incitement to submit an abusive asylum application, Section 84 Asylum Act
false information in the asylum procedure, Section 95 Paragraph 1 No. 5, Paragraph 2 Residence Act (also for participants (Section 84 Asylum Act and also in the revocation procedure (also revocation procedure, Section 73b Paragraph 5a Asylum Act nF),
Violation of residence restrictions (Section 95 (1) No. 7; Section 61 (1), (1c) Residence Act)
Child abduction through departure
Identity deception
Social benefit fraud
What grounds for detention are there under immigration law?
The following grounds for detention exist in immigration criminal law:
Preventive detention § 62 para. 1, 3 to 6 Residence Act in conjunction with the Return Directive - ABH
Surrender detention (“Dublin detention”), Article 28 Dublin III Regulation
Detention pending departure (“detention light”), Section 62b Residence Act - ABH
Detention for rejection
Transit custody
Detention pending deportation
Preparatory detention
Supplementary preparatory detention
Contributory detention
Can I be arrested as a foreigner without a court order?
No, without a judicial decision, a planned arrest is always unlawful. Therefore, only the judge has the right to decide on the admissibility of a deprivation of liberty. For any deprivation of liberty not based on a judicial order, a judicial decision must be obtained immediately. The police themselves may not hold anyone in their own custody longer than until the end of the day after their arrest (Article 104 of the Basic Law).
7. Conclusion
Residence law is a specialized criminal law that applies exclusively to foreign nationals and entails significant consequences for violations of residence regulations. So-called "overstays" are particularly common, in which third-country nationals stay in Germany without a valid residence permit or beyond the permitted period. Other criminal offenses such as unauthorized entry, providing false information in visa procedures , or staying without a valid passport can also be prosecuted. Criminal prosecutions regularly result in entries in official databases such as the Central Register of Foreign Nationals (AZR) or the Schengen Information System (SIS), which can have long-term consequences for residence permits and entry options.
The consequences of a criminal conviction extend far beyond the criminal proceedings. In addition to fines or prison sentences, foreign nationals face sanctions under immigration law, such as entry bans, deportation orders, or the denial of residence permits. The naturalization process is also significantly impacted by ongoing or completed criminal proceedings.
List of Sources (Paywall)
[1] Kabis/Fahlbusch in Hofmann, Aliens Law, 3rd edition 2023, § 95 Residence Act
[2] Jens Schmidt, Defense of Foreigners, 4th edition 2016
[3] For the definition of only minor violations of the law, see VGH Munich, decision of 13 April 2023, 19 ZB 22.79
[4] Regarding the right to be heard after arrest, see Federal Constitutional Court, judgment of 27 February 2013, 2 BvR 1872/10
[6] Visa Handbook, Entry Ban, 77th Supplement, as of October 2023
[9] Section 95 of the Act on the Residence, Employment and Integration of Foreigners in the Federal Territory (Residence Act – AufenthG) of 25 February 2008 (Federal Law Gazette I p. 162), last amended by Article 3 of the Act of 25 October 2024 (Federal Law Gazette 2024 I No. 332)
[10] Code of Criminal Procedure in the version published on 7 April 1987 (Federal Law Gazette I p. 1074, 1319), last amended by Article 2 paragraph 1 of the Act of 7 November 2024 (Federal Law Gazette 2024 I No. 351)