Unintentionally overstaying in the Schengen area by 5 days without exceeding the visa expiration date

Question

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.

Answer 1

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.

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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.

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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.

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Sources:

• Overstaying a Schengen Visa in Germany: The Legal Consequences - Schlun & Elseven
  • LG Landshut, Urteil vom 11.04.2011 - 5 Ns 35 Js 28732/08 - openJur (in German)
    • 12 day overstay, fine of 10 daily rates of €30 each based on §95(1) Nr. 2
• §95 - Penal provisions (AufenthG)
• §98 - Fine (AufenthG)

Answer 2

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)