Foreign citizens law: fiction certificates (Fiktionsbescheinigungen) as the saviour of foreign citizens authorities in Germany

Section 81 of the German Residence Act (AufenthG) fiction certificate

A fiction certificate is issued if the foreign citizen’s residence title has expired and the application for a new residence title has not yet been decided on by the authorities. For this reason the German legislator has created the fiction of a residence permit in the form of the fiction certificate.

Thanks to the fiction certificate, the original residence title continues to be valid until there has been a decision on the application. The foreign citizen is still deemed to be entitled to stay in the federal territory and may not be deported.

Requirements for a fiction certificate

A fiction certificate is always issued if the authority has not made a timely decision on an application to issue or extend a residence title.

In this context, it is important that the foreign citizen submits the application to extend or issue a residence permit in due time, i.e. that he or she still has a valid residence title when filing the application.

If he or she submits the application only after his or her residence permit has expired – i.e. belatedly – there will be no fiction of continued validity of the residence title and the authority will usually not issue a fiction certificate.

According to section 81 para. (4) sentence 3 of the Residence Act, the authorities may, in individual cases, issue a fiction certificate if an application is filed too late in order to avoid undue hardship

The fiction certificate can also play an important role in the granting of a permanent settlement permit or naturalisation. With the submission of the application, lawful residence will continue to apply and periods of residence will thus also be taken into account for the issuance of a permanent settlement permit or naturalisation.

Different types of fiction certificates

Fiction of continued validity according to section 81 para. (4) of the German Residence Act (AufenthG)

Due to the fiction of continued validity, the foreign citizen’s original residence title will continue to be effective, provided that he or she has filed the application in due time. The foreign citizen can even travel on a fiction certificate if the country of destination accepts fiction certificates. Therefore, when travelling, it is advisable to find out in advance what entry and exit documents are recognised and required in the country of destination.

Fiction of permission according to section 81 par. (3) sentence 1 of the German Residence Act (AufenthG)

The fiction of permission is issued to privileged nationals who do not need a visa for short stays in the federal territory. Provided that they have applied for a residence title in due time, their stay in the territory of the Federal Republic of Germany is deemed to be permitted until a decision has been made on their application. The fiction of permission is not a travel document.

Fiction of suspension of deportation according to section 81 para. (3) sentence 2 of the German Residence Act (AufenthG)

The fiction of suspension of deportation is issued to privileged nationals who were not in possession of a residence title and did not file an application for a residence title in due time. This fiction only has the effect that deportation is temporarily suspended. Unlike with the fiction of permission, residence in the federal territory is not deemed to be permitted. The fiction of suspended deportation is not a travel document.

Fiction certificate and gainful employment

Whether the relevant fiction certificate entitles a foreign citizen to engage in gainful employment depends crucially on whether the original residence title entitled him or her to do so or not.

Consequently, if the original residence title entitled the foreigner to engage in gainful employment, he or she will still have this right with a fiction certificate.

Under the fiction of permission the foreign citizen is permitted to stay in the federal territory. The right to engage in gainful employment is also governed by the general provisions of the original stay.

In general, the fiction of suspended deportation will not entitle a person to engage in gainful employment. However, the Federal Employment Agency may give its consent.

Can you travel on a fiction certificate?

This is possible if the foreign citizen has a fiction certificate according to section 81 para. (4) of the German Residence Act. These fiction certificates, in conjunction with a recognised and valid passport or passport substitute, entitle the holder to enter the federal territory and, pursuant to Article 21 of the Schengen Convention, to travel within the Schengen area.

Important Note: This article has been prepared by lawyer Helmer Tieben for general information purposes only. Mr. Tieben does not accept any liability to any person or organisation for the use or reliance of the information contained in this article. On any specific matter, kindly contact us by dialing 0221 – 80187670 or sending us an email to info@mth-partner.de

Lawyers in Cologne provide legal advice on German immigration law.