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So I have been in the Schengen zone this summer entering on 15th of June, 2022 and exiting on 30th of August, 2022 for business with Italy being my visa issuing country and first entry point. However, the visa issued by Italy had a 45-day duration limit expiring on August 2nd. Due to the fact that I needed to stay in the Schengen zone for longer to continue my meetings, I applied for a visa extension and got my visa extended from August 3rd to mid-September with another 45-day duration limit.

Therefore, considering my first entry date which was in mid-June, there were about the five-day between around 30th of July to the 3rd Aug during which I should have exited the Schengen zone and then re-enter on August 3rd, 2022. However, due to my busy schedule during that time, it was impossible for me to exit the Schengen zone and re-enter as it would disrupt my schedule that could not be re-scheduled. And to be honest, I got too busy to put attention to this.

As I was flying out from Berlin, the federal police found out and called me to their office and said this was a crime in Germany even though it was just a 5-day overstay without having exceeded the visa expiration date. They made me sign a few forms and said “You will fine and the record will be gone very soon…” when I asked whether this was to bring my any sort of consequences and whether this would leave me a criminal record in Schengen zone. Since it was already 10 minutes past the boarding time of my flight and flights are extremely limited during pandemic, I did not ask more questions or took copies of the forms as the time they took to make copies might get me miss the flight… I just signed the forms and confirmed with them once again “this would not affect my future application etc.”

But I still want to double-check, if there is anyone who had similar experience, whether this is really not to bring about consequences such as affecting my future application or leaving a criminal record somewhere?

There did not take my fingerprints; neither was I fined on site. They only asked me to sign a few forms and asked for my address to send a post.

Relaxed
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user25372
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    Related question: https://expatriates.stackexchange.com/questions/24397/overstayed-in-germany-by-a-day-applying-to-work-at-us-university/24418#comment40510_24418 – DavidRecallsMonica Sep 01 '22 at 14:37
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    Note that “impossible to exit” because it “would disrupt your schedule” is a bit self-serving and certainly not something that the authorities are likely to accept. It also contradicts your claim to have done it unintentionally. From the perspective of the police, you could have left and you chose to stay because it would have been inconvenient for you to miss those appointments. On top of that, staying 90 days for business is bit long and could suggest you were actually working there. I would recommend steering clear from all these arguments when interacting with border guards. – Relaxed Sep 01 '22 at 14:45
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    The fact the visa was still valid is also irrelevant, it's an overstay either way and probably wouldn't really be worse if the visa had expired. – Relaxed Sep 01 '22 at 14:46
  • Was your visa stamped in any way? – Relaxed Sep 01 '22 at 14:48
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    Sorry but I don’t buy the story of ‘unintentional’ overstay. A) you were aware enough to get an extension B) you admit you didn’t exit because you chose to prioritise fulfilling work commitments over complying with the terms of your visa. Doing the latter would have turned out to be much less hassle than probably landing yourself with an entry ban – Traveller Sep 01 '22 at 16:07
  • Thank you for the answer and by “unintentional”, I more meant I did not want it to have happened as I really totally forgot about it when getting super busy…but it is indeed my problem. The stamp was a normal exit stamp. What I am concerned now is what could be the most likely consequences… – user25372 Sep 01 '22 at 17:00

2 Answers2

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You will have to wait until a letter from the prosecutor arrives, which will inform you if the matter is to be dropped or pursued and will be sent to the address you have given to the Bundespolizei.

Often overstays up to 10 days are not considered in the public interest to pursue.

I applied for a visa extension and got my visa extended from August 3rd to mid-September with another 45-day duration limit.

Here an image of the visa and extension would be useful.

If it is truly an extension, then it is likely that the prosecutor will drop the case.

When was the visa issued and how long is it valid (not the allowed duration)?

Is it a single, double or multiple entry visa?

If the visa is valid later than July 2022, then this is a sign that the second is really an extension and covers the time between the 2022-07-31 and your exit.

Below is a case of a 12 day overstay that the prosecutor decided to pursue, which should give you a general idea of what could happen if the matter is not dropped.

Based on a 2011 case (see link below), where a court came to the conclusion that offender had acted negligently (due solely to lack of proof that it was intentional) for their 12 day overstay and was given a 10 day fine (based on the offender’s income set at €30 per day, which is the maximal amount allowed for §95(1) Nr. 2).

Negligence was assumed because the first business visa was applied for by post so nobody could state for sure that the applicant was explicitly told that his visa was only valid for 45 days in a 180 period and possibly misread the available information.

This ruling was later overturned due to a special provision of the 1963 Ankara Agreement, that the prosecutor had overlooked, that allows a business visit up to 2 months for turkish citizens.

The Bundespolizei (German Border Police) can never determine whether an overstay offence is negligent or intentional and therefore can never impose a fine or a ban. This can only be done by a court ruling.

The Bundespolizei will collect all relevant information, including your address (so that you can be informed of the result) and fill out a form (that you must sign) informing you that, should the court impose a ban, this information will be entered into the relevant computer systems (mostly the VIS and SIS systems). This is a standard procedure.

This information will then be passed on to a prosecutor (after which the Bundespolizei has nothing more to do with the case) who will then decide to drop the case (not in the public interest, often for cases of an overstay up to 10 days) or to pursue it.

A letter will be sent to you (at the address you gave to the Bundespolizei) by the prosecutor, informing you of this result.

The Bundespolizei will never know how long this can take or what the result will be, since it is something that is completely outside of their area of responsibility.

Sources:

Traveller
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Mark Johnson
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  • (+1) So they bother with all this for a €300 fine but no ban or visa revocation? I am not surprised necessarily but these peculiarities never cease to amaze me. – Relaxed Sep 02 '22 at 18:27
  • @Relaxed In this case it was €3000 (10*€30). In cases of negligence: €1000,€3000 or €5000 are possible. For cases of intentionally or recklessly: €30000 or €500000. (§98(5) - Fine (AufenthG)) – Mark Johnson Sep 02 '22 at 18:57
  • Just to double-check: 10*€30 is €300, is it not? – Relaxed Sep 05 '22 at 14:00
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    @Relaxed Indeed, 10 daily rates of €30 (which is what the original ruling states) is €300. And my privious comment, where the sums are named should include the words up to. – Mark Johnson Sep 05 '22 at 14:50
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They made me sign a few forms and said “You will fine and the record will be gone very soon…”

I don't know if they said that to make it easier for you to accept the situation without making trouble or if they said something slightly different and you remember it that way because you really want to believe it was not so bad but the only hard fact here is that there will be a record. That it will go away “very soon” is a vague promise and depends a lot on what counts as “soon”.

Germany is quite rigid with minor infringements to the rules and is, by far, the Schengen country that issues the most bans. From what you are telling me, I wouldn't rule out such a ban. It certainly should not be longer than 5 years and records are not kept indefinitely but I would definitely expect this to have consequences, if only a fine.

There did not take my fingerprints; neither was I fined on site. They only asked me to sign a few forms and asked for my address to send a post.

You will presumably learn exactly what they chose to do when you receive this paperwork but to be honest asking you for an address is not a good sign either. Again, it means they were at the very least considering formally acting on this overstay, which would create a record of it. If they really wanted this not to go any further, they could just lecture you and verbally warn you not to do it again but that's not what you are describing.

If you do end up receiving an entry ban, it's not exactly or necessarily a criminal record but it will be shared with other Schengen countries. It will make obtaining another short-stay visa nearly impossible for the duration of the ban and possibly quite a bit harder for some time after that. On the other hand, if you only receive a fine (without ban or cancellation of your visa), that record wouldn't be shared.

Also note that since you have a visa, your prints and pictures are already on file (not sure they could be transferred to another database but that could explain why they didn't bother with taking any biometrics again)

Relaxed
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  • Thank you for the answer. And indeed I was concerned whether they just said that to make me accept the situation and it was already 10 min past my boarding time. I am sure that was what I heard. However, wouldn’t it be dishonesty of them if they simply said it to make me sign? I could also sue the officers for that I believe if it is true they lied. But regardless of what they said, what I am concerned the most is still the most likely consequence…And I think what you have said could be possible though I really hope the impact could be as small as possible. – user25372 Sep 01 '22 at 17:05
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    @user25372 I don't know German law but I don't think signing necessarily changes much, ultimately. Even if you signature was obtained under duress or false pretenses, you did actually overstay. Realistically, you also don't have proof of anything and it's likely other officers will back up whatever version the police gives of the events. – Relaxed Sep 01 '22 at 18:08
  • @user25372 You overstayed. Signing probably meant you were allowed to go on your way. Not signing may well have lead to an unintentional stay in immigration detention… – Traveller Sep 02 '22 at 06:25
  • (-1) The claims (without any confirming sources) made here about bans and the conclusion that it is possible for a 5 day overstay ('I wouldn't rule out such a ban.') is without foundation. The OP was not expelled, removed or deported. These are the only reasons for a ban and corresponding entry in the SIS system. §11 - Ban on entry and residence: (1) Entry or residence bans are to be issued for foreigners who have been expelled, removed or deported. – Mark Johnson Sep 05 '22 at 08:29
  • @MarkJohnson A source for what? You don't know that Germany is by far the country issuing the most ban in the Schengen area? You doubt it? Same thing for the ridiculous process of involving the the prosecutor to issue a small fine without taking any measures preventing reentry (if I understand you correctly). I don't know any other country with such an absurd and pointless way to handle overstays. – Relaxed Sep 05 '22 at 08:47
  • So the paragraph was very carefully worded and entirely well-funded. I edited it answer to reflect the nuance you mentioned but “removed” is a pretty broad word, it's not obvious to me that it wasn't the case. Does the German term has a more specific meaning (and maybe you should stop quoting German law in English?) – Relaxed Sep 05 '22 at 08:48
  • @MarkJohnson Quick question: If you show up at the airport and try to exit after a multi-year overstay, what would happen? – Relaxed Sep 05 '22 at 09:01
  • §57 - Removal: (1) A foreigner who is apprehended in conjunction with unlawful entry into the federal territory across a border within the meaning of Article 2 no. 2 of Regulation (EU) 2016/399 (external border) is, as a general rule, to be removed from the federal territory. – Mark Johnson Sep 05 '22 at 09:07
  • To your quick question: the same process as in my answer. They would not be prevented from leaving. – Mark Johnson Sep 05 '22 at 09:20
  • I would certainly hope they would not prevented from leaving, the interesting thing for me are the consequences. So, do I understand you correctly that Germany liberally issues bans for any removal, goes to the trouble of a ton of paperwork between the police and the prosecution office to issue small fines for minor overstays but still has no way to do anything else (and in particular no Schengen-wide warning) for multi-year overstays? – Relaxed Sep 05 '22 at 09:25
  • The topic here is about bans. A ban (and a SIS alert) is only possible for: §53,57,58 - Expulsion,Removal,Deportation. By default an overstay, where the person is leaving voluntarily, does not automaticly lead to a ban. – Mark Johnson Sep 05 '22 at 10:44
  • Not automatically but can it be? That was the topic of my last question. – Relaxed Sep 05 '22 at 10:46
  • Also, any other objection @MarkJohnson? It seems that debate on the interpretation of my original answer aside, my last edit should address all your concerns (and add some useful information on what is and is not shared between Schengen countries). – Relaxed Sep 05 '22 at 10:52
  • That is for a court to decide after the due process has been compleated. §11(6) would allow this for a long overstay, but not for a short one. (6) A ban on entry and residence may be issued for foreigners who have not fulfilled the obligation to leave the country within the period allowed for departure, unless* they were prevented from leaving through no fault of their own or have exceeded the period allowed for departure by an insignificant amount of time.* – Mark Johnson Sep 05 '22 at 11:05
  • @MarkJohnson Wait a minute, are you discovering this now? That directly contradicts everything you wrote until now… Why quote all the things about removal, etc. since it is in fact to impose a ban based solely on the overstay, following exactly the procedure that was followed in this case? – Relaxed Sep 05 '22 at 11:07
  • A 5 day overstay in not a multi-year overstay that your last question asks about. As I wrote in my answer: overstays up to 10 days are not considered in the public interest to pursue, but you claim can lead to a ban. – Mark Johnson Sep 05 '22 at 11:25
  • @MarkJohnson Obviously, that's always up to the authorities to decide, which is exactly what I wrote as well and never contradicted. I even upvoted your answer! But you told me that it was categorically impossible, not as a matter of prosecutorial discretion but because the law made bans impossible without a removal and that removal could only results from illegal entry. What the multi-year overstay example shows is that all that is (unsurprisingly) untrue so all the quotes in your comments and the purported basis for your original objection are completely irrelevant! – Relaxed Sep 05 '22 at 11:30
  • No, my last statements show that your claim that OP risks a ban from Germany for a 5 day overstay is compleatly unfounded. The last sentance in §11(6) make that clear. Since you offer no sources that verify your claim (and I would be interested in reading a summery of bans, with the reasons, of all the member states), I must assume that your claims are nothing more than hearsay. [end of conversation] – Mark Johnson Sep 05 '22 at 11:56
  • @MarkJohnson It suggests that… but also shows that all your earlier comments about §§ 53, 57, and 58 were irrelevant and either mistaken or disingenuous and that it is in fact perfectly possible to get a ban following an overstay caught on exit. I never claimed anything else. Also, you keep using the present but of course I am not “claiming” anything as I edited my answer so what you are banging about exactly? I see why you are trying to end the conversation… – Relaxed Sep 05 '22 at 13:28