Overstay in Germany – repercussions on future family reunion visa application

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

• Geringfügigkeit (§ 153 Strafprozeßordnung).

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.

Sources:

• § 153 Strafprozeßordnung
• § 95 Aufenthaltsgesetz

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.

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.)