Criminal defense for Residence Act Offences in Bonn

In brief: Residence without a title, unlawful entry, breach of an entry ban, or false statements in title proceedings. The sentencing range is Up to 1 year imprisonment or a fine (subs. 1); up to 3 years or a fine (subs. 2) (§ 95 AufenthG). What matters is the evidence – we assess it after obtaining the case file.

Legal Basis

§ 95 AufenthG

Sentencing Range

Up to 1 year imprisonment or a fine (subs. 1); up to 3 years or a fine (subs. 2)

Summary

Residence without a title, unlawful entry, breach of an entry ban, or false statements in title proceedings.

Section 95 of the Residence Act (AufenthG) brings together very different forms of conduct in a single provision: staying without a residence title, unlawful entry, breaching a geographical restriction, entering despite a ban on entry and residence, and false statements in proceedings for a title or a suspension of deportation. What they share is that criminal liability depends on prior questions of administrative law. That is where the defence usually starts.

Subsection 1: up to one year of imprisonment

The basic offence covers, among other things, staying without the required residence title. It is only punishable where three conditions coincide: the person is under an enforceable obligation to leave, no departure period was granted or it has expired, and deportation has not been suspended (Section 95(1) no. 2 AufenthG). If only one of these is missing, for instance because a suspension of deportation had been granted or the departure period was still running, there is no offence. The same group includes unlawful entry under Section 14(1) nos. 1 or 2 AufenthG, breaches of enforceable orders under Sections 46 and 47 AufenthG, and repeated breaches of a geographical restriction under Section 61 AufenthG.

Subsection 2: up to three years of imprisonment

Two groups of cases are considerably more serious. The first is entry or residence contrary to a ban on entry and residence under Section 11 AufenthG, that is, after expulsion or deportation. The second concerns incorrect or incomplete statements made to obtain a residence title or a suspension of deportation, or to prevent either from lapsing; the same applies to the knowing use of a document obtained in that way (Section 95(2) no. 2 AufenthG). This variant is the most difficult one, because it contains an element of deception and is regularly examined alongside Sections 267 and 271 StGB.

What the defence examines

First, whether the underlying administrative act was valid and enforceable. Was the expulsion served? Was an action pending with suspensive effect? Was there in fact a situation in which deportation was suspended? Then intent: someone holding a provisional certificate, or not informed that a period had expired, does not necessarily act intentionally. Finally Section 95(5) AufenthG, which expressly leaves Article 31(1) of the Refugee Convention untouched: a person entering directly from a country of persecution who reports to the authorities without delay may not be punished for unlawful entry.

The collateral consequences are the real problem

A conviction under Section 95 AufenthG feeds back into residence law. It can establish a public interest in expulsion under Section 54 AufenthG, block naturalisation and prevent the extension of a title. The size of the fine is therefore not a detail: whether it stays at 30 daily units or rises to 90 can decide whether someone may remain. Criminal proceedings and the immigration authority have to be considered together rather than one after the other.

Attempt is punishable in cases of unlawful entry and entry despite a ban (Section 95(3) AufenthG).

Summons or accusation of Residence Act Offences? What matters now

Two things matter immediately: say nothing to the police about the allegation – you are never obliged to – and have your defense obtain the investigation file first. In detail: your rights as an accused person, responding to a police summons.

Possible discontinuation of proceedings

Not every case ends in a trial. Depending on the evidence and any prior record, the proceedings may be discontinued for lack of sufficient suspicion (§ 170 II StPO), for triviality (§ 153 StPO) or subject to conditions (§ 153a StPO). Often a penalty order without a public trial can be achieved.

Victim-offender mediation and restitution

In many cases, victim-offender mediation or making good the damage (§ 46a StGB) can significantly reduce the sentence or enable a discontinuation. Whether this is advisable in your case is something we assess based on the file.

What we do after reviewing the file

We assess the evidence, look for procedural errors and negotiate with the prosecution about a discontinuation.

Available 24/7: +49 228 504 463 36

This information does not replace a review of the individual case. In criminal proceedings, the defense strategy depends substantially on the case file, the specific allegation and the evidence.