Immigration Law: On the Criminal Liability of Asylum Seekers for Unauthorized Entry

The connections between illegal residence and criminality are extremely complex. Both the Unauthorised entry as well as the unauthorised stay constitute criminal offences. According to Section 95 (1) AufenthG, a foreigner who enters or stays in Germany without the required passport or residence permit is liable to a custodial sentence of up to one year or a fine. Repeated offences are even punishable by up to three years' imprisonment. Similarly, pursuant to Section 96 (1) of the Residence Act, anyone who instigates or helps him to do so, to enter the country illegally or to remain in the federal territory illegally (so-called Infiltration). In this respect, §§ 95-97 AufenthG form Typical criminal provisions of secondary criminal law. In contrast to the German Criminal Code (StGB), they do not contain all the elements of the offence in the text of the law itself, but refer to other provisions of the Residence Act or other laws (such as passport and visa requirements).

What is particularly difficult in practice is the relationship between these criminal provisions and the Right of asylum. German asylum law grants persecuted persons a right to protection (Art. 16a para. 1 GG), but is in tension with the rules on illegal entry. On the one hand, a person seeking protection should not be penalised simply for fleeing to Germany without permission - this is also provided for in Art. 31 para. 1 of the Geneva Refugee Convention (GRC). On the other hand, this protection must not be understood as a licence to violate the law in any way. These contradictions repeatedly lead to difficult decisions before German courts. The following case from the Bamberg Higher Regional Court (OLG) provides an illustrative example.

Introduction: The Defendant’s Flight and Entry into Germany

The accused, an Afghan national, fled his home country and travelled to Greece via Iran and Turkey. There he received from a smuggler - against payment of 1,500 euros - a forged Pakistani passport, which was issued in the name of another person but was labelled with the defendant's photo. On 17 August 2010, the accused travelled by plane from Greece to Munich with the assistance of the smuggler who accompanied him through the airport controls in Athens.

Police Control and Asylum Application

During the police entry check at Munich Airport, the accused placed the forged passport in front of him. However, the federal police officer carrying out the check immediately recognised the forgery, whereupon the accused arrested was arrested. Immediately upon arrest, the defendant stated that he had been arrested in Germany. Asylum wanted to apply for asylum. A formal interrogation took place on the same day, in which the accused explained his reasons for fleeing. As early as 18 August 2010, he was transferred to the responsible reception centre for asylum seekers, where he was given a formal application for asylum placed. (The asylum procedure had not yet been finalised at the time of the court hearing). On the basis of the asylum application, the defendant received a Residence permit in accordance with § 55 para. 1 sentence 1 AsylG. This authorisation entitled him to remain in Germany temporarily for the duration of the asylum procedure and also exempted him from passport and identity card requirements (§ 64 para. 1 AsylG). In addition, the border authorities at the airport decided not to refuse the defendant entry - in particular, entry was neither prohibited under Section 18 (2) AsylG nor were airport asylum proceedings initiated under Section 18a AsylG. His entry was therefore provisionally legalised and his stay is legally covered by the permit.

Initial Judgment of the Local Court: Acquittal

The district court, which initially dealt with the case, acquitted the defendant of the charge of unauthorised entry, the unauthorised stay and the Forgery of documents free. The court argued that the defendant's behaviour was justified by the right to privacy enshrined in Art. 16a para. 1 of the German Basic Law. Basic right to asylum justified. In particular, the district court considered the personal grounds for cancellation of sentence under Art. 31 of the Refugee Convention to be relevant. According to Art. 31 of the Refugee Convention, refugees coming directly from a persecuting state may enter the country without authorisation and report to the authorities immediately, are not penalised for illegal entry or illegal residence. According to the district court, this provision applies here. Due to the defendant's immediate search for asylum, there had been no criminal offence against Section 95 (1) of the Residence Act. The district court also denied criminal liability for forgery of documents (Section 267 (1) StGB) on the grounds that the presentation of the false passport was also justified or excused by the right of asylum. Consequently, all charges were acquitted.

Prosecution’s Appeal and Decision of the Higher Regional Court Bamberg

The public prosecutor's office did not accept this acquittal and lodged an appeal with the Bamberg Higher Regional Court. On 12 June 2012, the Bamberg Higher Regional Court overturned the judgement of the local court and referred the case back for a new hearing and decision. Subsequently, the local court again acquitted the defendant, against which the public prosecutor's office again lodged an appeal - so that the matter was again referred to the Bamberg Higher Regional Court.

In its judgement of 24 September 2014, the OLG Bamberg clear that the district court rightly so as a result denied criminal liability for completed unauthorised entry and completed unauthorised stay. This was because the accused had applied for asylum immediately after his arrest and thus obtained the aforementioned residence permit (§ 55 para. 1 AsylG). This authorisation in turn made the stay retroactively legally and exempted him from the passport requirement (§ 64 para. 1 AsylG). Since - as described above - the authorities had not refused the defendant entry and no special airport procedure had been carried out, his de facto entry was legal. not to be considered illegal. His stay was deemed authorised as long as the asylum application had not been decided. In this respect, the OLG confirmed: A punishment for more accomplished illegal entry or illegal residence was actually out of the question here.

Possible Criminal Liability for Attempted Unauthorized Entry

However, the Bamberg Higher Regional Court criticised the fact that the local court did not consider the possibility of criminal liability for attempted unauthorised entry had not been sufficiently examined. The offence of unauthorised entry under Section 95 (1) No. 3 AufenthG is punishable under Section 95 (3) AufenthG even if attempted. The OLG stated that the decisive factor was the original intention of the accused. Did he intend from the outset to live in Germany To seek protection and apply for asylum? Or did he first want to without Would the accused have entered the country illegally under a false identity and would he not have applied for asylum if he had not been apprehended? In the second case - i.e. if the accused merely planned to enter the country illegally and only due to the arrest spontaneously applied for asylum in order to avoid punishment - the personal ground for cancellation of sentence in Art. 31 Refugee Convention does not apply. Refugees only enjoy the protection of this provision if they on its own initiative and directly apply for asylum after entering the country. On the other hand, anyone who enters the country primarily as an illegal migrant and only applies for asylum after being caught cannot claim immunity from prosecution. In this light, the district court should have examined whether the defendant was guilty of Attempted unauthorised entry was liable to prosecution. The Bamberg Higher Regional Court therefore referred the case back to the district court with the proviso that this issue be clarified.

Criminal Liability for Document Forgery

Furthermore, the OLG Bamberg found that the Acquittal with regard to forgery of documents (§ 267 StGB) could not be upheld. The accused had presented a forged passport at the entry control and had thus objectively committed a criminal offence. Forgery of documents guilty. The Higher Regional Court emphasised that Art. 31 of the Refugee Convention only exempts unlawful entry and residence from punishment. but not the commission of other offences such as forgery of documents. The basic right to asylum and the Geneva Convention do not give a person seeking protection the right to present false documents in order to gain entry. Consequently, the district court should have convicted the defendant on this charge. have to condemn. The judgement of the local court was also overturned on this point.

Conclusion and Re-trial

In summary, the Bamberg Higher Regional Court overturned the judgement of the Local Court in its entirety due to the errors of law found. The OLG gave the following guidelines for the new hearing: The local court must clarify, whether the defendant already intended to apply for asylum in Germany when he entered the country. If not, a conviction for attempted unauthorised entry could be considered. In addition - according to the OLG - the defendant must be convicted of Use of the forged document (the false passport), as no grounds for cancellation of the sentence apply in this respect. The case was referred back to another judge of the district court for a new decision. (Ultimately, the case ended in a conviction of the defendant for forgery of documents. With regard to the attempted unauthorised entry, the defendant could not be proven to have acted with intent, so he was not prosecuted in this respect).

Current case law: confirmation of the principles

The case described above dates back to 2014. Germany's highest courts have since adopted the principles developed there. confirmed and specified. The Federal Constitutional Court emphasised in a decision of December 2014 (2 BvR 450/11) the character of Art. 31 Refugee Convention as a personal reason for cancellationThe norm excludes the punishment of the refugee for his illegal entry, but does not affect the injustice of the offence as such. This means that Third party can remain liable to prosecution if they were involved in the illegal entry. In a judgement from 2017 (3 StR 69/17), the Federal Court of Justice (BGH) ruled that a Helpers or smugglers can be penalised even if the refugee's entry itself remains unpunished on the basis of Art. 31 Refugee Convention. The courts also emphasised once again that Accompanying offences - such as obtaining and presenting false documents - not justified by the right of asylum be criminalised. In other words, a refugee has no right to commit criminal offences such as forgery in order to facilitate their escape. This view is also in line with that of the UN High Commissioner for Refugees, which nevertheless appeals to states to limit criminal sanctions against refugees as far as possible.

New legal situation in 2024: Criminal liability for false statements in the asylum procedure

In addition to court practice, the Legal situation until 2025 further developed. In particular, at the beginning of 2024, the so-called Repatriation Improvement Act which introduced a number of relevant changes to criminal law relating to foreigners. For the first time, the levy false or incomplete information in the asylum procedure was made a criminal offence. Until then, it was of course forbidden for asylum seekers to lie to the authorities - but there was no direct threat of punishment. This has changed: Anyone who knowingly makes false statements or conceals information during the asylum procedure in order to obtain protection status or prevent it from being withdrawn is now liable to prosecution. Fine or even imprisonment for up to three years. This new regulation is intended to penalise cases of asylum fraud, but is also viewed critically by experts. There are fears of Criminalisation of refugees and helpers, for example, if counselling centres were held liable for inconsistencies.

The provisions against people smuggling were also tightened in 2024. Section 96 of the Residence Act now also extends criminal liability to cases in which someone repeatedly or in favour of several foreigners helps with illegal entry - even if No financial consideration is provided. Previously, anyone who smuggled people commercially or for payment was liable to prosecution under the law. Now, altruistic smugglers can theoretically also be prosecuted. In particular Sea rescue of refugees became the focus of discussion: aid organisations feared that rescuing shipwrecked people could be prosecuted if the rescued people had no papers. Legislators did clarify at the last minute that the provision of unpaid assistance is a criminal offence. by land is a criminal offence - but the regulation remains controversial. Critics point to the absurd effect that rescuing adults can go unpunished, while rescuing unaccompanied minor refugees could be considered a criminal offence under certain circumstances. Whether and how the courts will develop a narrow understanding in favour of humanitarian aid workers remains to be seen.

Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. The content of this article has been prepared to the best of our knowledge on the basis of the legal situation applicable in November 2025. Nevertheless, the subject matter and its developments are complex and subject to constant change. Therefore, no guarantee is given for the complete correctness; liability is excluded.

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