Overstaying a Schengen Visa in Germany: The Legal Consequences

The Schengen Visa allows for short stays of up to 90 days for tourist, business, cultural, medical or other purposes. This visa enables you to visit any participating Schengen state and thus to enter Germany. In addition to planning the actual stay, it is important not to lose sight of timely departure. In particular, if several spontaneous travel destinations are targeted or the stay is unexpectedly extended due to various circumstances, there is a rapid risk that overstaying the Schengen Visa may occur.

Overstaying the Schengen Visa allowance of 90 days within 180 days is not without consequences. Remaining after the expiry period may constitute a stay without a corresponding residence permit and will be prosecuted in Germany as a criminal or administrative offence. This raises the legitimate question for you as a person entering Germany with a Schengen visa. Under what circumstances should German authorities impose such a penalty or fine, and what you can do about it.

In this article, we at Schlun & Elseven Rechtsanwälte would like to first of all show you the method of calculating the duration of your Schengen Visa and thus enable you to calculate your date of departure to leave German on time. Subsequently, we will inform you under which conditions overstaying a Schengen Visa in Germany can be considered a criminal or administrative offence, which corresponding sanctions are threatening and how these can be averted. If you would like further assistance, please make sure to contact us directly!

Short Stay in Germany with Schengen visa – Calculation of the Duration in Germany

The Schengen Visa is applied for in the country of residence at Germany’s relevant embassies and consulates-general. The decision on the application is then usually made after 14 days at the latest. When applying for the Schengen visa, the travel data in the form of the planned date of arrival and departure and the duration of the planned stay must be stated. Therefore, it is recommended that you calculate the duration of your stay in detail when applying for the Schengen Visa or at the latest after it has been issued. Furthermore, make sure to focus on the binding departure date during your trip to the Schengen Zone. In this way, you will already have taken basic preventative steps to avoid criminal or regulatory sanctions for an illegal overstaying of the Schengen Visa.

The calculation method for the length of stay was changed in 2013. Since then, the so-called backwards calculation has been applied. In this calculation, the question of whether the Schengen Visa still covers the current stay is based on the previous period of 180 days, during which the third-country national may stay in the Schengen area for up to 90 days. The 90-day period includes both the day of entry and the day of exit. Therefore, if the stay of a third-country national is checked on 08.07.2020, the 180-day period between 11.01.2020 and 08.07.2020 is considered. It will then be calculated whether the number of days on which they stayed in the Schengen area during this period does not exceed the 90-day limit.

Due to the visa waiver agreement with the EU, nationals of Brazil, Antigua and Barbuda, Bahamas, Barbados, Saint Kitts and Nevis, Mauritius and Seychelles continue to be subject to the old calculation method of “forward calculation” of the stay, i.e. the 90-day limit is calculated forward from the date of entry.

Criminal Offence according to § 95 (1) German Residence Act

Even after a precise calculation of the period of legal residence, unexpected circumstances may arise, which may lead to a postponement of departure and risk an overstay of the Schengen Visa. Then the question arises whether overstaying the Schengen visa will have immediate consequences and sanctions for third-country nationals in Germany.

In any case, the penal and penal provisions on the right of residence in Germany are precisely regulated in §§ 95 ff German Residence Act. According to § 95, paragraph 1, no. 2 German Residence Act, a person committing a criminal offence is liable to prosecution,

• who intentionally stays in the Federal Republic of Germany without the required residence title according to § 4 (1) German Residence Act,
• if they are legally obliged to leave the country,
• they were not granted a period of leave to leave or that period has expired, and
• their deportation has not been suspended

Expiry of the Schengen visa

If the period of stay of the Schengen Visa has expired, there is no longer a residence title. In this instance, the person in question resides in Germany “without the required residence title” per § 95 (1) German Residence Act. They are therefore legally obliged to leave the country. A legal extended period of stay is not often possible for the expired Schengen visa.

A suspension of deportation can be claimed from nationals of certain states for humanitarian or international law reasons. In addition, an actual impossibility, e.g. due to travel disruptions and inability to be transported due to an illness of the person obliged to leave the country, or a legal impossibility can intervene in the case of the protection of fundamental rights of the person obliged to leave the country, which predominates in the individual case. If deportation is suspended (or will be suspended) for these reasons, the criminal offences are not completely fulfilled, and the person obliged to leave the country does not make themself liable to prosecution. To check whether such a reason for suspension applies in your case, it is recommended that you engage a lawyer for immigration and residence permit law.

Furthermore, the criminal offence of § 95 (1) German Residence Act would have been intentionally committed. In particular, the offender must know that they are in Germany without the required residence title. If they erroneously think that they have a corresponding residence permit, the exclusion of intent can be asserted on the grounds of an error. This can have a great impact on criminal sentencing. In all questions regarding the criminal offence of § 95 (1) German Residence Act upon expiry of your Schengen visa, you can rely on a comprehensive defence and advice from our lawyers for criminal law and residence law.

Penalties for Overstaying a Schengen Visa

The penalty for staying in Germany without a residence title according to § 95 (1) German Residence Act ranges from a fine to one year’s imprisonment. However, if the authorised duration of stay on a Schengen Visa is exceeded, the actual court sentence may be low. In particular, there is no immediate fear of a prison sentence. This is because the sentencing depends on the judicial assessment of a large number of factors. Thus, for example, the perpetrator may be favoured because he has no previous convictions and was only in Germany illegally for a short period of time.

These considerations were also made by the Landshut Regional Court, which sentenced a Turkish businessman to 10 daily rates of 30 euros each (Landshut Regional Court, ruling of 16.11.2009 – 2 Ns 35 Js 26732/08). The assessment criteria for the sentence can vary considerably depending on the individual case and thus lead to differences in the severity of the sentence. You can obtain advice on this from a criminal law attorney.

Aiding and Abetting an Offence: Overstaying a Schengen Visa

Inciting or aiding, and abetting an offence of illegal residence is also punishable, irrespective of the participant’s nationality. Thus, in particular, German citizens can also be liable to prosecution if they induce a third-country national to overstay their Schengen Visa in Germany – and thus without a residence permit – or support them in this endeavour. Here too, the criminal liability depends on the intent of the participant. Therefore, the assisting or instigating party must know that the third-country national is not (no longer) entitled to a residence permit.

Administrative Offence: § 98 (1) German Residence Act

Overstaying a Schengen Visa in Germany may, instead of a criminal offence, constitute an administrative offence sanctioned by a fine. § 98 (1) German Residence Act stipulates that anyone who negligently commits the offence punishable under § 95 (1) German Residence Act is guilty of an administrative offence. Thus, anyone who negligently ignores the fact that they are staying in Germany without a residence permit must expect a fine of up to €3000 for an administrative offence committed instead of being convicted of a criminal offence.

When a negligent and intentional act of the offender is present is difficult to define in theory and can be even more problematic in practice. In any case, the criminal prosecution authorities must be able to prove without a doubt that the offender acted intentionally, which in many cases can therefore suggest the possibility of sanctions for an administrative offence. As is so often the case, the particularities of the individual case must always be taken into account.

Legal representation in Residence and Criminal Law

This article will have provided a general overview of the possible sanctions for overstaying a Schengen Visa in Germany. However, this information cannot replace individual legal advice on criminal law and residence law tailored to your particular case. Our lawyers for criminal law and residence law are at your disposal with extensive expertise and many years of experience for exceptional personal support and representation. Furthermore, we review every document from the regulatory and criminal prosecution authorities and take care of your defence in and out of court to defend against unlawful criminal sanctions and regulatory fines. In addition, we have the necessary interdisciplinary orientation to advise you in detail on all immigration and residence law questions and criminal and administrative offence law.

With offices in Cologne, Aachen and Düsseldorf and conference rooms in Hamburg, Stuttgart, Munich, Berlin and Frankfurt, you can take advantage of our support and advice nationwide. In addition, we offer our services in English and German for smooth communication with our clients. If you require more specialised advice regarding your case of overstaying a Schengen Visa, please make sure to contact our lawyers directly.