Illegal border crossing

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Under illegality border crossing or Illegal entry means the entry to a country without a valid residence permit . In general, this residence permit arises from citizenship in this country or a visa , i.e. a specific individual permit . The facts of the transfer mostly relate to the direct crossing of the border and entering the national territory , the facts of the entry, however, also to duty-free zones or airports .

Germany: Unauthorized entry

The Unauthorized entry is in Germany in § 14 Residence Act  regulated (Residence Act):

The entry of a foreigner into the federal territory is not permitted if he

1. does not have a required passport or passport substitute (according to passport obligation for foreigners, § 3)
2. does not have the required residence title (according to § 4, this includes various forms of visa, residence permit, EU Blue Card, settlement permit, permanent residence permit - EU),
2a. has a required visa upon entry, but this was obtained through threats, bribery or collusion or was obtained by fraudulent use of incorrect or incomplete information and is therefore withdrawn or canceled with effect for the past, or
3. is not allowed to enter unless he has an entry permit (according to the entry and residence bans regulated in § 11 )

Unauthorized entry contrary to No. 1 or 2 is a criminal offense that is punishable by imprisonment for up to one year or a fine (Section 95, Paragraph 1, No. 3).

However, if a refugee arrives without a visa, if applicable, he may not be punished for this according to the principle laid down in Article 31 of the Geneva Refugee Convention (GRC), provided that he comes directly from an area in which his life or freedom is were threatened, and immediately reports to the authorities. Accordingly, according to Section 13 (3) AsylG , he must apply for asylum at the border or otherwise immediately after the unauthorized entry. He then receives a residence permit in accordance with Section 55 (1) sentence 3 AsylG.

However, since all of Germany's neighboring countries are considered Safe Third Countries, this is only fulfilled when entering by plane (or theoretically by sea to the North and Baltic Seas).

In practice, many investigations that are initiated because of unauthorized entry are discontinued on the grounds of insignificance , provided that it is the first attempt and the immigrants are not guilty of further criminal offenses. On the other hand, a refugee can claim a right to asylum under Article 16a, Paragraph. 2, not appointed if he comes from a safe third country .

A foreigner who wants to enter illegally must be refused entry at the border (Section 15 (1)). The authorities charged with the police control of cross-border traffic can issue exceptional visas and passport substitute papers (Section 14 (2)).

With regard to this legal situation, the first family senate of the Higher Regional Court of Koblenz stated with a ruling of February 14, 2017 (file number: 13 UF 32/17): "The person concerned has indeed become aware of his unauthorized entry into the Federal Republic according to §§ 95 para. 1 No. 3, 14 Paragraph 1 No. 1, 2 AufenthG made punishable. This is because he cannot invoke Section 15 (4) sentence 2 of the Residence Act or Section 95 (5) of the Residence Act in conjunction with Article 31 (1) GFK. "

Austria: illegal entry

In Austria, the legality of entry, residence and departure of foreigners is regulated by the 4th main part of the Aliens Police Act  2005  (FPG, Federal Law on the Exercise of Aliens Police, Issuing Documents for Foreigners and Issuing Entry Permits). A stranger within the meaning of the law is anyone who does not have Austrian citizenship (Section 2, Paragraph 4, Item 1 FPG), whereby there are special regulations for EEA citizens and Swiss citizens (EU and EFTA) as well as beneficiary third-country nationals . The current regulations are an amendment to the Aliens Act  1997, in particular the border controls have now been dropped and all neighboring countries belong to the Schengen area .

The entry of a foreigner is only considered lawful from a crime-related point of view if these provisions are complied with. The provisions include the passport requirement (§ 16 ff) and the visa requirement (§ 20 ff) as well as various restrictions on the obligation and cancellation for visas.

The administrative authorities criterion illegal entry as administrative offense is then § 120  FPG with a fine punishment of 100 € up to 1000 Euro or organ penal punishable up to 200 euros, in the case of non-recovery with imprisonment up to two weeks, in case of recurrence 1000 euros up to 5000 euros or up to three weeks.

See also:

Switzerland: illegal entry

In Switzerland, Article 5 of the  Aliens Act  (AuG) stipulates that foreigners who want to enter Switzerland:

a. must have an identification document recognized for crossing the border and a visa , if this is required;
b. must have the financial means necessary for the stay;
c. must not pose a threat to public safety and order or to international relations in Switzerland; and
d. must not be affected by a keep-away measure .

They must guarantee that they will leave the country securely if they are only planning to stay temporarily (line 2).

If these entry regulations are violated, there is  an illegal entry according to Art. 115 AuG (Z. 1 lit. a), but also anyone who does not enter via a prescribed border crossing point (lit. d; with regard to the regulations according to Art. 7  border crossing and Border controls ),

She is punished with imprisonment of up to one year or a fine , but if the act is committed negligently , the penalty is a fine  (line 3). Prosecution, referral to the court or punishment can be waived if the person is deported immediately .

The same threat of punishment applies to illegal departure.

Promotion of illegal entry and exit as well as illegal residence (§ 116) see smuggling

Hungary

In Hungary, crossing the border illegally ( Tiltott határátlépés ) has been punished as a criminal offense and not just as an administrative offense since September 15, 2015. The tightening is a reaction by the Orbán government to the crisis on the border fence with Serbia, which was recently erected in the wake of the EU refugee crisis from late summer 2015 .

Individual evidence

  1. ↑ Julia Merlot: Authorities determine hundreds of thousands of times - for the sake of form. In: Spiegel Online. June 12, 2016. Retrieved May 15, 2018 .
  2. ↑ Landesrecht.RLP.de, International jurisdiction of the German courts for the arrangement of a guardianship for so-called unaccompanied minor refugees
  3. ↑ Stefan Aust, Helmar Büchel: Hidden Realities . In: Welt.de , January 21, 2018.
  4. ↑ Switzerland is neither an EU nor an EEA member, but it is linked to the EU through a series of bilateral agreements. In many areas, Swiss nationals are therefore on an equal footing with EU citizens. Literally quoted from the European Economic Area (EEA) . help.gv.at.
  5. ↑ 1997 Aliens Act  (Aliens Act, Federal Law on the entry, residence and establishment of aliens , as last amended online, ris.bka);
  6. ↑ Legal sentence OGH RS0118058. Gftsz. 14Os79 / 03; 11Os153/03; 15Os77 / 08z; 15Os118 / 08d; 11Os119 / 11a of September 30, 2003 (online, ris.bka) - this still refers to the old FrG.
  7. ↑ Lázár: a tiltott határátlépés bűncselekmény lesz. atv.hu, August 28, 2015;
    Hungary declares illegal border crossing a criminal offense. kurier.at, September 4, 2015.