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

Higher Regional Court Bamberg, September 24, 2014, Case No. 3 Ss 59/13

The relationship between residence law violations and criminality is extremely complex. Unauthorized residence itself, as well as incitement and assistance to such residence, constitute criminal offenses (§ 95 Abs. 1 No. 2 of the Residence Act, § 96 Abs. 1 of the Residence Act), which are punishable by significant penalties.

Sections 95-97 of the Residence Act are typical penal provisions of ancillary criminal law. Unlike the Criminal Code (StGB), §§ 95-97 of the Residence Act do not fully outline the elements of the offenses but refer to other provisions of the Residence Act or other laws.

In particular, the relationship between criminal provisions and asylum law consistently poses significant challenges for German courts. This was evident in the case mentioned above decided by the Higher Regional Court of Bamberg, which was reviewing an acquittal by a local court.

Introduction: The Defendant’s Flight and Entry into Germany

The defendant, an Afghan national, fled his home country and traveled through Iran and Turkey to Greece. There, he obtained a forged Pakistani passport from a smuggler, paying 1,500 euros. The passport was issued in another person’s name but had the defendant’s photo. On August 17, 2010, the defendant flew from Greece to Munich, Germany, with the smuggler’s assistance, who guided him through airport controls.

Police Control and Asylum Application

At the police entry control at Munich Airport, the defendant presented the forged passport. The inspecting police officer immediately recognized the forgery, leading to the defendant’s arrest. During his arrest, the defendant stated that he wished to seek asylum in Germany. On the same day, a formal interrogation took place, during which the defendant explained the reasons for his flight. On August 18, 2010, he was transferred to the responsible reception facility for asylum seekers in Munich, where he submitted a formal asylum application. The asylum process is still ongoing.

Initial Judgment of the Local Court: Acquittal

The local court initially handling the case acquitted the defendant of charges of unauthorized entry, unauthorized stay, and document forgery. The court argued that the defendant’s actions were justified by the right to asylum enshrined in Article 16a (1) of the Basic Law (GG). It ruled out criminal liability under § 95 Abs. 1 of the Residence Act and § 267 Abs. 1 of the Criminal Code (StGB) because it considered the personal exemption from prosecution under Article 31 of the Geneva Refugee Convention (GFC) to be applicable.

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

The prosecution appealed the local court’s judgment to the Higher Regional Court (OLG) Bamberg. On June 12, 2012, the OLG overturned the local court’s decision and referred the case back for a new trial and decision. Subsequently, the defendant was acquitted again by the local court. The prosecution filed another appeal, which was again heard by the OLG Bamberg.

The OLG Bamberg ruled that while the local court was correct in finding no criminal liability for completed unauthorized entry and stay, as the defendant applied for asylum immediately after his arrest and thus obtained a residence permit under § 55 Abs. 1 Sentence 1 of the Asylum Procedure Act (AsylVfG), which exempted him from passport requirements under § 64 Abs. 1 AsylVfG. Since the border authorities did not refuse the defendant’s entry under § 18 Abs. 2 AsylVfG and no airport procedure under § 18a AsylVfG was initiated, his entry and stay were legally covered.

Possible Criminal Liability for Attempted Unauthorized Entry

However, the OLG further stated that the local court had not adequately examined the possibility of criminal liability for attempted unauthorized entry. Such liability could be considered if the defendant originally did not intend to apply for asylum in Germany. If the defendant only planned illegal entry and was forced to apply for asylum due to the police arrest, the personal exemption from prosecution under Article 31 GFC would not apply. Therefore, the OLG referred the case back to the local court for further examination of this issue.

Criminal Liability for Document Forgery

The OLG also decided that the local court’s acquittal regarding the document forgery charge was legally flawed. The defendant had presented the forged Pakistani passport at the entry control, thereby committing an offense under § 267 Abs. 1 StGB. The OLG emphasized that Article 31 GFC only covers illegal entry and stay, not the commission of offenses like document forgery. The local court should have convicted the defendant for using a false document. Thus, the judgment was overturned and the case was referred back to the local court for a new trial.

Conclusion and Re-trial

The OLG Bamberg overturned the local court’s judgment due to the identified legal errors. The local court must reassess, particularly whether the defendant intended to apply for asylum at the time of entry and whether there is criminal liability for attempted unauthorized entry. Additionally, the local court must convict the defendant for using the forged document. The case was referred back to a different judge of the local court for a new trial and decision.

Source: Higher Regional Court Bamberg

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. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.

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