The Probationary Certificate in Germany (“Fiktionsbescheinigung”)

The probationary certificate serves to prove the existence of a provisional right of residence, which comes into existence with the application for granting or extending a residence permit. It is, therefore, not a residence title according to § 4 (1) (2) AufenthG but merely embodied proof of the existence of a provisional right of residence.

The legal basis for the probationary certificate results from § 81 AufenthG. According to this section, subsection 3 stipulates that a foreigner lawfully residing in Germany without possessing a residence permit and who applies for the issuance of a residence permit is deemed to be permitted to stay there until the relevant authorities decide (“Erlaubnisfiktion“).

If the application is filed late, § 81 (3) AufenthG stipulates that deportation is deemed suspended from the time the application is filed until the decision of the immigration authorities (“Duldungsfiktion“).

Furthermore, para. 4 stipulates that for a foreigner who applies for an extension of their residence permit or the issuance of another residence permit before it expires, the previous residence permit is considered valid from the time of its expiry until the decision of the immigration authorities (“Fortgeltungsfiktion“).

According to § 81 (5) AufenthG, the applicant must be issued a probationary certificate for these effects of the application. According to § 81 5a AufenthG, this certificate must also include permission to work, which is deemed to be permitted from the time the document is issued until the time it is given. Conceptually, the probationary certificate refers to legal rights that have not yet been granted but may be granted in the future.

The probationary certificate is issued after the application has been filed with the competent immigration authority. Therefore, it is only relevant for persons subject to German residence law, i.e. persons who require a residence permit to stay in Germany. This does not include those who enjoy European freedom of movement under EU law. These include:

• Citizens of EU member states (EU citizens),
• Citizens of states of the European Economic Area (EEA), which includes Iceland, Liechtenstein and Norway, and
• Their third-country family members if they live with them.
• Special rules also apply to citizens of Switzerland and Turkey.

The probationary certificate is issued as proof for the three variants of the provisional right of residence resulting from § 81 AufenthG. If such a provisional right of residence exists, it expires in all the cases mentioned with the decision of the immigration authority on the application for an initial grant or extension.

Probationary legal residence (§ 81 (3) AufenthG) (“Erlaubnisfiktion”) exists for applicants who are legally resident in Germany without already being the holder of a formal residence title. This does not apply to certain nationals who, according to § 41 German Residence Ordinance (AufenthV), may enter Germany without a visa for a stay that is not a short stay and apply for a residence title within 90 days.

The probationary suspension of deportation (§ 81 (3) AufenthG) (“Duldungsfiktion“) applies to nationals under § 41 AufenthV if they do not apply for a residence title until after the 90-day period has expired. In contrast to the fiction of permission, in the case of this probationary suspension of deportation, the residence is not stated as legally approved but merely “tolerated” so that the person concerned cannot be deported.

The probationary granting of a continued residence title (§ 81 (4) AufenthG) (“Fortgeltungsfiktion“) applies to applicants who apply for an extension before the expiry of the temporary residence title. The previous residence title is thus provisionally considered to be valid. This probationary granting of continued validity covers holders of a residence permit, EU Blue Card, permanent residence permit, and entrants with a D visa.

An application must be submitted as a prerequisite for issuing a probationary certificate (“die Fiktionsbescheinigung”). In addition, the applicant must

• be legally resident in Germany with or without a residence permit at the time of application,
• have their principal place of residence in the city of the competent foreigners authority,
• and appear in person at the Foreigners’ Registration Office.

The following documents must be presented to obtain a probationary certificate after applying:

• A valid passport or passport replacement,
• the previous residence permit, if available,
• and proof of residence in the respective city.

The certificate is usually issued directly upon presentation. The fees for a probationary certificate are set at 13 euros per § 47 Para. 1 No. 8 AufenthV. Exceptions to this requirement may apply to specific groups of persons, such as minors, persons entitled to asylum or citizens of certain states.

After receiving a probationary certificate, the holder is often asked whether it also (provisionally) entitles them to work and travel. This assessment can usually only be made according to the circumstances of the individual case so that general information can be inaccurate.

With the probationary certificate of permission and toleration (Erlaubnisfiktion und Duldungsfiktion ) under § 81 (3) AufenthG, work in Germany is only granted in exceptional cases. However, at least in the case of the fiction of continued validity (“Fortgeltungsfiktion”)  under § 81(4) AufenthG, it is also possible to continue working with the probationary certificate if the previous residence title that is to be extended entitled to the holder to gainful employment.

The same applies to travelling with a probationary certificate. While travelling with the probationary or toleration permit (Erlaubnis- oder Duldungsfiktion ) is generally not permitted, the holder of a probationary certificate is usually allowed to travel in the case of a probationary continued validity. However, it must be noted that this is only recognised with a valid passport or a passport substitute (identity card).