Aliens law: The fictitious certificate as a saviour for the aliens authorities

§ Section 81 AufenthG Fictitious certificate

A fictitious certificate is issued if the foreigner's residence permit has expired and the application for a new residence permit has not yet been approved by the authorities. For this reason, the German legislator has created the fiction of a residence permit in the form of a fiction certificate.

The fictitious certificate means that the original residence permit remains valid until a decision is made on the application. The foreigner is therefore still authorised to reside in Germany and may not be deported.

Requirements for a fictitious certificate

A fictitious certificate is always issued if the authority has not decided on the application for extension/issue of a residence title in good time.

It is important here that the foreigner submits the application for the extension or issue of a residence permit in good time, i.e. that they still have a valid residence title when they submit their application.

If the application is submitted after the residence permit has expired and therefore late, the fictitious effect of the continuation of the residence title will not apply and the authorities will not normally issue a fictitious certificate.

Pursuant to Section 81 (4) sentence 3 AufenthG, the authority may issue a fictitious certificate in individual cases where an application is submitted late in order to avoid undue hardship.

The fictitious certificate can also play an important role in the granting of a settlement permit or naturalisation. Once the application has been submitted, the legal residence continues to apply and the periods of residence are therefore also taken into account when granting a settlement permit or naturalisation.

The different types of fictitious certificates

The fiction of continued validity pursuant to Section 81 (4) AufenthG

The fiction of continued validity means that the foreigner's original residence permit continues to apply, provided that the application was submitted in good time. The foreigner can also travel with a fictitious certificate if the destination country accepts fictitious certificates. It is therefore advisable to find out in advance about the recognised and required entry and exit documents in the destination country when travelling.

The fiction of authorisation pursuant to Section 81 (3) sentence 1 AufenthG

The authorisation fiction is issued to privileged nationals who do not require a visa for short stays in Germany. If they have applied for a residence permit in good time, their stay in Germany is deemed to be authorised until the application is approved. The authorisation fiction is not a travel document.

The presumption of toleration pursuant to Section 81 (3) sentence 2 AufenthG

The fiction of toleration is granted to privileged nationals who were not in possession of a residence permit and did not apply for a residence permit in time. The fiction of toleration merely means that deportation is suspended. In contrast to the fiction of authorisation, residence in the federal territory is not deemed to be permitted. The fiction of toleration is not a travel document.

Am I allowed to work with a fictitious certificate/is gainful employment permitted?

Whether the corresponding fictitious certificate entitles a foreigner to pursue gainful employment depends largely on whether the original residence title authorised him/her to do so.

If the original residence title therefore authorised the foreigner to work, this authorisation also applies to the fictitious certificate.

In the case of fictitious authorisation, residence in the federal territory is permitted. Authorisation to work is also based on the general provisions of the original residence permit. This means that if the foreigner was allowed to work with their previous residence permit, they are also authorised to do so with the fictional certificate.

The presumption of toleration does not generally authorise gainful employment. However, the Federal Employment Agency may give its consent.

Can I travel with a fictitious certificate?

This is possible if the foreigner has a fictitious certificate in accordance with Section 81 (4) AufenthG. This fictitious certificate, in conjunction with a recognised and valid passport or passport substitute, entitles the holder to enter the federal territory and to travel within the Schengen area in accordance with Article 21 of the Schengen Implementation Convention.

What do I have to do if the fictitious certificate has expired?

Due to the general overload of the immigration authorities, it often happens that they do not send either the new residence title or the new fictitious certificate before the validity period of the fictitious certificate expires. However, it is very important that you make sure that you do not end up without a fictitious certificate/residence title. You should therefore send emails or registered letters to the foreigners authority so that you can later prove that you have taken care of this yourself. The same also applies if the fictitious certificate has already expired. You should definitely take care of a new issue. If necessary, a Action for failure to act be submitted.

Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.

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