Criminal Proceedings and Residence Law: Why a Conviction Can Cost More Than the Sentence
For people without a German passport, criminal proceedings have two sides: the sentence itself and the consequences for their residence. A fine that counts as a minor matter under criminal law can block the extension of a residence permit, the settlement permit (Niederlassungserlaubnis) or naturalisation – and in extreme cases lead to expulsion.
Public prosecutors and courts inform the immigration authority (Ausländerbehörde) on their own initiative about the opening and outcome of criminal proceedings (§ 87(4) AufenthG). The residence law consequences should therefore be part of the defence strategy from the outset – not only once the letter from the immigration authority arrives.
Who is affected?
How strongly criminal proceedings affect residence depends above all on nationality.
Third-country nationals – for example from Brazil, India or the USA – are subject to the Residence Act (AufenthG). Here, even comparatively minor convictions are enough to establish an interest in expulsion, which is then examined at every extension and every new permit.
EU citizens – for example from Portugal, Hungary or Italy – enjoy freedom of movement. Their right of residence can only be withdrawn if their personal conduct represents a genuine, present and sufficiently serious threat; a conviction alone is not enough (§ 6 FreizügG/EU). The longer they have lived in Germany, the higher the hurdles. For naturalisation, however, the criminal law limits of nationality law apply to them as well.
Turkish nationals with rights under the EEC–Turkey Association Agreement and recognised refugees enjoy special protection against expulsion (§ 53(3), (3a) AufenthG).
Expulsion: when does it get serious?
Expulsion is never automatic. The authority weighs the public interest in expulsion against the private interest in remaining – such as length of stay, family, children and integration (§§ 53, 55 AufenthG). How much weight the interest in expulsion carries, however, is set by law on the basis of the sentence:
| Conviction (final, intentional offence) | Interest in expulsion | Provision |
|---|---|---|
| Prison sentence or youth custody of 2 years or more | particularly serious | § 54(1) No. 1 |
| Prison sentence or youth custody of 1 year or more for offences against life, physical integrity, sexual self-determination, certain property offences, resisting enforcement officers, breach of the peace | particularly serious | § 54(1) No. 1a |
| Prison sentence or youth custody of 1 year or more for social benefits fraud or drug offences | particularly serious | § 54(1) No. 1b |
| Prison sentence of 6 months or more – including on probation | serious | § 54(2) No. 1 |
| Youth custody of 1 year or more without probation | serious | § 54(2) No. 2 |
| Several convictions for property or financial offences within 12 months (fines of up to 90 daily rates are disregarded) | serious | § 54(2) No. 2a |
| Fine or prison sentence with an expressly established racist, antisemitic or otherwise inhumane motive (over 90 daily rates) | serious | § 54(2) No. 9 |
| Violation of the law that is not merely isolated or minor – even without a conviction | serious | § 54(2) No. 10 |
The last row is a catch-all provision: several smaller fines or a serious violation without a conviction can also be sufficient. For violent offences with a weapon or dangerous instrument, lower thresholds also apply (from 3 or 6 months).
Extension and settlement permit
In practice, the most common problem is not expulsion but the blocked permit. As a rule, a residence permit is only granted or extended if there is no interest in expulsion (§ 5(1) No. 2 AufenthG). Whether expulsion could actually take place is irrelevant – it is enough that one of the grounds in § 54 AufenthG is met (BVerwG, judgment of 12.7.2018 – 1 C 16.17; likewise VGH Munich, order of 3.8.2021 – 10 ZB 21.937).
This has consequences:
- A conviction to 6 months' imprisonment on probation can jeopardise the extension of an EU Blue Card or a residence permit for employment.
- For the settlement permit, the authority additionally examines whether reasons of public safety or order stand in the way (§ 9(2) No. 4 AufenthG).
- If investigation or criminal proceedings are pending against you, the immigration authority can suspend the decision on your application until they are concluded (§ 79(2) AufenthG). You then often live for months with a fictional certificate (Fiktionsbescheinigung) – with consequences for travel, employers and family reunification.
Naturalisation: the 90 daily rates limit
For naturalisation, a fixed de minimis limit applies. Under § 12a(1) StAG, only the following are disregarded:
- educational measures and disciplinary measures under the Youth Courts Act,
- fines of up to 90 daily rates,
- prison sentences of up to 3 months that were suspended on probation and remitted after the probation period expired.
Three points are frequently overlooked:
- Several sentences are added together. Two penalty orders (Strafbefehle) of 50 daily rates each add up to 100 daily rates – and thus exceed the limit.
- Exceeding the limit is harmless only within narrow bounds. The authority may, at its discretion, disregard a minor excess; according to the Federal Administrative Court, exceeding the limit by a third (120 daily rates) is no longer minor (BVerwG, judgment of March 2012 – 5 C 5.11).
- Inhumane motives rule out naturalisation – regardless of the sentence. If the criminal court has established an antisemitic, racist or otherwise inhumane motive, the de minimis limit does not apply (§ 12a(1) sentence 2 StAG).
If investigation proceedings are pending against you, no decision on naturalisation will be made until they are concluded. Convictions abroad must also be disclosed and can be taken into account.
What this means for your defence
The residence law thresholds make details of the criminal proceedings important that would otherwise hardly matter. You should clarify five points with your defence lawyer early on:
- No statement without access to the files. As a suspect, you are not required to give any information to the police. What you say early on can hardly be corrected later.
- Do not accept a penalty order without review. You can lodge an objection against a penalty order within 2 weeks (§ 410 StPO), including one limited to the amount of the sentence. Whether it ends up being 80 or 100 daily rates can decide your naturalisation.
- Aim for discontinuation rather than conviction. Discontinuation of proceedings, for example in return for a payment (§ 153a StPO), is not a conviction and is not entered in the Federal Central Criminal Register. As a rule, it does not harm naturalisation.
- Keep an eye on the sentence. The limit of 6 months' imprisonment also applies with probation. With several proceedings, an aggregate sentence can be more or less favourable than individual sentences.
- “Not on the certificate of good conduct” does not mean “unknown”. Immigration and naturalisation authorities receive unrestricted information from the Federal Central Criminal Register. Only after expungement may a conviction no longer be used (§ 51 BZRG).
Ideally, criminal defence and migration law work together from the start – in one law firm or in close coordination.
Conclusion
For people without a German passport, the real impact of criminal proceedings is often decided at the line between 90 and 91 daily rates or between 5 and 6 months. Those who know these thresholds and involve a defence lawyer early can prevent a great deal.
WYN LEGAL combines criminal defence and migration law under one roof and advises you in German, English, Portuguese and Hungarian – in Frankfurt am Main, Hanover and Siegen, and nationwide by video call. Get in touch
This article is for general information only and does not replace legal advice in individual cases. Legal status: November 2026.