Elaborate application procedures, such as those for a German residence permit, are known to take time. And so, it can take several months from the application submission to the competent authority’s decision. However, this can become problematic when a residence title is issued. It is not uncommon for the title that entitles the holder to stay in Germany for a short time to expire during the application procedure.
In such cases, the German legislator has created a fictional certificate. The holder of the probationary certificate is considered entitled to remain in Germany until the residence title is issued, or until the authorities’ final decision, without the risk of deportation.
Schlun & Elseven Rechtsanwälte offers expert legal assistance to help clients obtain a fictional certificate as quickly as possible. Our lawyers have in-depth expertise in residence law and many years of experience supporting application proceedings. If a residence permit is refused, we promptly obtain a hearing with the competent immigration authority.
The Legal Basis for the Fictional Certificate in German Law
The fictional certificate serves to prove the existence of a provisional right of residence, which arises with the application for a residence permit or its extension. It is, therefore, not a residence title according to Section 4 (1) (2) AufenthG but merely embodied proof of the existence of a provisional right of residence.
The legal basis for the fictional certificate results from Section 81 AufenthG. According to this section, subsection 3 stipulates that a foreigner lawfully residing in Germany without a residence permit who applies for a residence permit is deemed permitted to stay until the relevant authorities decide (“Erlaubnisfiktion“).
If the application is filed late, Section 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 Section 81 (5) AufenthG, the applicant must be issued a fictional certificate for the effects of the application. According to Section 81 5a AufenthG, this certificate must also include permission to work, which is deemed valid from the time it is issued until it is given. Conceptually, the fictional certificate refers to legal rights that have not yet been granted but may be granted in the future.
Who Needs to Apply for the Fictional Certificate?
The fictional certificate is issued after the application has been filed with the competent immigration authority. Therefore, it is relevant only to persons subject to German residence law, i.e., those 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 Scope of the Fictional Certificate in Germany
The fictional certificate is issued as proof of the three variants of the provisional right of residence under Section 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.
Legal residence (Section 81 (3) AufenthG) (“Erlaubnisfiktion”) exists for applicants who are legally resident in Germany but do not already hold a formal residence title. This does not apply to certain nationals who, according to Section 41 of the German Residence Ordinance (AufenthV), may enter Germany without a visa for a stay that is not a short stay and may apply for a residence title within 90 days.
The fictional suspension of deportation (Section 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 considered valid provisionally. This probationary granting of continued validity covers holders of a residence permit, EU Blue Card, permanent residence permit, and entrants with a D visa.
Requirements, Form, and Costs of Applying for a Fictional Certificate
An application must be submitted as a prerequisite for issuing a fictional 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 fictional 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 Section 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.
Specific Legal Features – Working and Traveling with a Fictional Certificate
After receiving a fictional certificate, the holder is often asked whether it also (provisionally) entitles them to work and travel. This assessment can usually be made only on the basis of the individual case, so general information may be inaccurate.
With the fictional certificate of permission and toleration (Erlaubnisfiktion und Duldungsfiktion ) under Section 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 Section 81(4) AufenthG, it is also possible to continue working with the fictional certificate if the previous residence title that is to be extended entitles the holder to gainful employment.
The same applies to traveling with a probationary certificate. While traveling with a probationary or toleration permit (Erlaubnis- oder Duldungsfiktion) is generally not permitted, the holder of a fictional 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).
Practice Group: Our German Immigration Lawyers
Practice Group:
Our German Immigration Lawyers
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