Fiction certificate

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Sample of the carrier form for a fiction certificate (front and back)
Adhesive label for certificate of fiction

With a fiction certificate (from Latin fictio , 'acceptance' , 'fiction') foreigners in Germany prove the existence of a provisional right of residence , which often arises with the application for the issuance or extension of a residence permit submitted to the immigration authorities . The fiction certificate is regularly issued for the period in which the immigration office is examining the application for a residence permit. The designation "Fiktionsbescheinigung" refers to the legal fiction of the continuation of the previous right of residence as long as the application for a residence permit is examined and has not yet been approved (also called "continued validity fiction" ). In this phase, the stay is still legal after the expiry of the previous residence permit or the previously permit-free stay; From now on, however, the right of residence is only a provisional one and therefore no longer guaranteed.

scope of application

The fiction certificate only applies to people who do not enjoy freedom of movement under European law. The fiction certificate is not issued to Union citizens or citizens of another country of the European Economic Area (EEA) ( Iceland , Liechtenstein and Norway ) and to the close family members living with them, even if they are third-country nationals . This group of people already has a right of residence on the basis of European law (freedom of movement under Article 21 of the Treaty on the Functioning of the European Union (TFEU), freedom of movement for workers under Article 45 TFEU). You do not need a residence permit. EEA citizens and their family members could have their residence status confirmed by January 28, 2013 by means of a certificate of freedom of movement ; now there is no longer any residence document for them. Your family members who are not citizens of an EEA country will receive a residence card , which, however, is only of a declaratory nature. It is therefore not necessary to establish a temporary right of residence for this group of people.

After Switzerland's accession to the EEA failed due to the referendum of December 6, 1992, based on the EU-Switzerland Agreement on the Free Movement of Persons of June 21, 1999, citizens of Switzerland and their family members living with them, even if they are third-country nationals, receive a residence permit as well the special entry CH residence permit . Although the Swiss residence permit is only of a declaratory nature for this group of people , they receive a free fiction certificate with the application.

In the case of Turkish citizens, it depends on whether they have a right of residence under ARB 1/80 or not. In the first case, according to the previous administrative practice, they will continue to be issued with a fictional certificate, which - as with the certificates for EU citizens - is only of a declaratory nature. The certificate must nonetheless be obtained because Section 4 (5) of the Residence Act requires this group of people to provide evidence of the existence of a right of residence under association law by means of a residence permit - and, if necessary, a fictional certificate .

For Turkish nationals who are not covered by ARB 1/80, normal right of residence applies. Staying in Germany without a residence permit, visa or at least a temporary right of residence is a criminal offense for this group of people ( Section 95 subs. 1 no. 2 AufenthG). According to case law, the provisional right of residence here has a constitutive , i.e. legal, effect.

Requirements and legal basis

The fiction certificate is only proof of the existence of the temporary right of residence. The provisional right of residence arises from the fulfillment of the statutory criteria of Section 81 (3) or (4) AufenthG, not only when the certificate of fiction is handed over. Consequently, the fiction certificate certifies the "effects of the application" in accordance with the wording of Section 81 subsection 5 of the Residence Act. It is not a residence permit (see Section 4, Subsection 1, Sentence 2, AufenthG). The incorrect (erroneous) issuance of a fictional certificate therefore does not constitute a provisional right of residence.

Exhibition forms

The fiction certificate is basically issued in three variants:

  • fictitiously permitted residence ( Section 81 subs. 3 sentence 1 AufenthG),
  • fictitious suspension of deportation (Section 81 subs. 3 sentence 2 AufenthG),
  • fictitious remaining residence permit (Section 81 subs. 4 AufenthG).

The respective variant is ticked on page 3 of the carrier form.

Fictitiously permitted residence (Section 81 subs. 3 sentence 1 AufenthG)

A fictional allowed stay - even permission fiction called - is someone before applying for the status of legal residence in Germany to grant a residence permit, but are not already hold a formal residence permit (residence visa) at that time.

The nationals of some countries that are friendly with Germany, which are exempt from the requirement of obtaining a visa for both short and long-term stays, benefit from this regulation. You can stay in Germany for up to 90 days without a visa and during this time you can apply for a residence permit for a longer stay in Germany. According to § 41 Residence Ordinance , these are citizens of Australia , Israel , Japan , Canada , New Zealand , South Korea , the USA and - with certain restrictions - of Andorra , Brazil , El Salvador , Honduras , Monaco and San Marino .

Also, third-country nationals with the residence of a different Schengen state fall under this regulation. According to Art. 20, 21 of the Schengen Implementation Convention (SDÜ), they are allowed to stay in any other contracting state, including Germany, for up to 90 days within 180 days without needing a German residence permit. You are not in possession of a residence permit within the meaning of Section 81 subsection 4 of the Residence Act, as this provision only refers to German residence permits under Section 4 subsection 1 sentence 2 of the Residence Act. A Moroccan who has a French residence permit can therefore stay in Germany for up to 90 days. If he applies for a German residence permit during this time, his stay is considered permitted until the decision of the immigration authorities and he receives a certificate of fiction.

On the other hand, persons who have entered Germany without a visa for a short stay of up to 90 days (so-called positive states ) and apply for a permanent residence permit from this status do not receive a fiction certificate . The group of citizens of these countries can be found in Annex II of the EU visa regulation - reduced by the countries mentioned in Section 41 Residence Ordinance . People who are allowed to enter the country without a visa for short stays of up to 90 days lose the privilege of being exempt from a visa if they had already intended to stay longer when entering the country. Your stay is then subject to a visa right from the start, and if you do not have a permanent residence visa, you are staying illegally in Germany. In the event of an application for a residence permit, this group of people does not receive a fictional certificate because they are regularly reproached for having planned a permanent residence upon entry. With the application for a residence permit, this group of people also risks retroactively losing their visa-free stay.

According to the general administrative regulations of the Residence Act, to which the border authorities are bound, no re-entry is possible after departure with a fictional certificate that certifies the fictitious permit. However, the literature does not share this view. This dispute is often of no practical relevance because in many cases a new temporary right of residence arises after re-entry.

Fictitious suspension of deportation (Section 81 subs. 3 sentence 2 AufenthG)

The same group of people as above will receive a certificate of the fictitiously suspended deportation (also known as “tolerance fiction”) if they only submit the application after the maximum permitted stay of 90 days has expired. The effects of the fiction of tolerance are determined analogously to Section 60a, Paragraph 2 of the Residence Act: During this phase, residence is no longer legal - and is not even after the application has been submitted - but merely tolerated, which means that the person concerned cannot be deported. This status is subject to the same restrictions as the formal tolerance according to § 60a Abs. 2 AufenthG:

  • No legal residence but a basic obligation to leave the country (Section 60a, Paragraph 3, Residence Act),
  • The fiction will expire upon departure from the federal territory (Section 60a, Subsection 5, Sentence 1 of the Residence Act),
  • Restriction of residence to the respective federal state ( Section 61 subs. 1 sentence 1 AufenthG).

Fictitious continuing residence permit (Section 81 subs. 4 AufenthG)

Genuine fictional certificate according to § 81 Abs. 4 AufenthG (front and back) with applied adhesive label, residence requirements and permission to work. Personal data are deleted.

Holders of a temporary residence permit (usually a residence permit or a national visa) receive a fictional certificate of the fictitious remaining residence title - also known as a fiction of continued validity . If an application for an extension of the existing residence title or for the issue of another residence title is submitted before it expires, the previous residence title is temporarily considered to be in effect. The further stay is then legal with the same requirements as those of the expired residence permit.

The legislature introduced this variant with effect from January 1, 2005, because since then there have been residence permits that not only grant a right of residence, but also regulate the employment law side of residence, namely the right to be able to pursue gainful employment (“ Employment at the company XY as ... permitted. "). The two variants of Section 81 (3) Residence Act alone would not have been sufficient here because the employed person not only needs a right to stay, but also a right to work.

Under permission fiction fall next to the holders of residence permits , Blue Card EU , permission for permanent residence in the EU and the establishment permit (known also those with a national visa D visa as archived for later permanent residence, for. On family reunification) to Germany entered.

Holders of a Schengen visa (so-called C visa ) or an airport transit visa do not fall under the regulation . The so-called negative states, i.e. nationals of the states listed in Appendix I of the EU Visa Regulation , and which are already subject to a visa for short stays of up to 90 days, receive a C visa . If you apply for a residence permit after entering the country as a holder of a C-Visa, the fiction of a permit is excluded by law ( Section 81 subs. 4 sentence 2 AufenthG). You will therefore not receive a fiction certificate. Such an applicant also risks having his Schengen visa stamped invalid because his application for a residence permit suggests that he had already planned a longer stay at the time of entry.

For a long time it was controversial which provisional right of residence is held by someone who applies for an extension or a new one after the residence permit has expired. The legislature has not regulated this case - despite a corresponding draft in the submission of the federal government. The Federal Administrative Court ruled on June 22, 2011 that an application for extension that was delayed by just one day would not allow the provisional right of residence to arise. The further stay is then no longer lawful and also not at least tolerated; rather, it lacks any status. The fact that the foreign worker who has lived in Germany for many years does not even enjoy deportation protection due to the negligence of late filing an application for an extension of his residence permit, and even has to stop working immediately because he is no longer allowed to work, was perceived as unsatisfactory. This problem has been solved with effect from August 1, 2012: With the newly inserted section 81 subs. 4 sentence 2 AufenthG (as a result of a further change in the law, now: section 81 subs. 4 sentence 3 AufenthG), the immigration authorities can now avoid a order the continued validity of the previous residence permit in the event of delay due to undue hardship.

The fiction of continued validity does not automatically expire upon departure, but only in accordance with the general reasons for expiry for residence permits; a return to Germany is therefore generally possible.

Consequences of an incorrectly issued fiction certificate

The complicated casuistry of provisional residence rights often leads to incorrectly issued certificates. Such illegally issued certificates have no effect beyond the legal certificate created. According to the case law of the Federal Administrative Court, the fiction certificate is not an administrative act, but only the documentation of the existing legal status. It does not prevent falling back on the true legal situation. A false fictional certificate can thus be withdrawn informally at any time.

Differentiation from other forms of temporary residence, but without a fiction certificate

In some cases, the legislature considers residence to be lawful even before a residence permit is issued, without the person concerned having to be in possession of a residence permit. In these cases, the residence is already legal by law, even before the application for the residence permit. The person concerned has a full right of residence and therefore does not receive a fiction certificate.

The following cases are possible:

  • Persons entitled to asylum , refugees or persons with subsidiary protection from recognition to issue of the residence permit ( Section 25 subs. 1 sentence 3 and Section 25 subs. 2 sentence 2 AufenthG),
  • Child born in Germany to foreign parents whose mother and father are allowed to stay with a visa or without a visa until the visa expires or the parents' stay without a permit ( Section 33 sentence 3 Residence Act),
  • children born in the federal territory whose parents have a residence permit; they do not need a temporary right of residence because they have to be issued a residence permit ex officio and they already have a right of residence at birth (Section 33 sentence 2 AufenthG),
  • in the case of persons who have lost their German citizenship and who apply for a residence permit within six months of becoming aware of the loss of their citizenship, until the application is made (cf. Section 38 subs. 1 sentence 3 of the Residence Act); After submitting the application, a provisional right of residence arises in accordance with Section 81 subs.

Temporary right of residence in other cases

If none of the requirements of Section 81 of the Residence Act are met, the application does not result in a provisional right of residence. The person concerned is obliged to leave the country and may have to wait for the decision on his application in his home country. However, he has the option of applying to the administrative court for an interim order with the aim of temporarily suspending deportation ( Section 123 VwGO). However, an interim order is only rarely issued and only to avert hardship, because the legislature has just regulated in the provision of Section 81 AufenthG in which cases it wants to allow the application to be awaited in the federal territory.

Duration of the provisional right of residence

The provisional right of residence expires in all three cases with the decision of the immigration authorities on the application for extension or initial grant. If the coveted residence permit is granted, the provisional right of residence changes into a final, possibly limited one.

If the application is rejected, objection and action for rescission have no suspensive effect ( Section 84 subs. 1 no. 1 AufenthG). In order to remain in Germany, the person concerned would either have to lodge an objection with the authority or - if an objection procedure is not provided - file a complaint with the competent administrative court and also submit an application for an order of suspensive effect ( Section 80 (5) VwGO). During the pending period until the final decision on the urgent application, the person concerned generally receives a procedural tolerance according to § 60a AufenthG, so can stay for the time being.

If the emergency application is unsuccessful, the person concerned must leave the country. If the urgent application is successful, the applicant will not receive the fiction certificate back. Objections and actions for rescission do not affect the effectiveness of the measure terminating residence (Section 84 subs. 2 sentence 1 AufenthG), which means that the provisional right of residence of the first and third variant will not be revived even in the event of a successful emergency application; the person concerned only receives a tolerance according to § 60a AufenthG, which at least protects him from being deported. In the cases of Section 81 subs. 4 AufenthG, the person concerned also has the option of continuing their previous employment. During the pending urgent procedure and after a successful urgent application, the previous residence title for the purpose of taking up or exercising gainful employment is still valid (Section 84 (2) sentence 2 of the Residence Act).

However, the time from the rejection of the application by the immigration authority becomes lawful retrospectively if the administrative court annuls the decision of the immigration authority in the later main proceedings (lawsuit) and obliges the immigration authority to issue or extend the residence permit. In these cases, the person concerned is treated as if he had been lawfully residing during the entire period (Section 84 subs. 2 sentence 3 of the Residence Act).

The background to the intricately nested system of provisional residence rights is the prevention of solidification of residence through the mere filing of legal remedies. Nobody should gain an advantage in terms of residence law through the use of judicial legal protection options (e.g. in the case of claims that require certain periods of previous residence, such as a settlement permit or naturalization ); unless the request for legal protection was justified.

A similar regulation applies to residence permit applicants who also submit an asylum application to the Federal Office for Migration and Refugees during the examination phase of their application at the immigration authorities : All temporary residence rights or exemptions from the requirement of a residence permit expire with the application for asylum ( Section 55 (2) AsylG). Asylum seekers do not receive a fictional certificate, but a residence permit .

Earlier legal situation

The main features of the current system of provisional residence rights were introduced on January 1, 1991 by the Aliens Act 1990 (AuslG 1990) that came into force on that date . The former § 69 AuslG 1990 provided for similar regulations as today § 81 AufenthG. It differed significantly from the legal situation before January 1, 1991. At that time, Section 21 (3) of the Aliens Act of 1965 (AuslG 1965) still applied, which ordered:

“If a foreigner applies for a residence permit after entering the country, his / her stay is provisionally permitted until the decision of the immigration authorities. Objections and actions for rescission have no suspensive effect. The same applies if the foreigner applies for an extension of the residence permit. "

According to this regulation, every application for a residence permit led to a provisional right of residence, regardless of the status and when it was made. There was no temporarily tolerated status at the time. If an urgent application before the administrative court was successful after the application was rejected, the person concerned regained the status of provisional residence. Because there was also no provision comparable to Section 84 of the Residence Act at that time.

Significance of the old law of § 21 Abs. 3 AuslG 1965 for Turkish citizens today

Although the AuslG 1965 expired on December 31, 1990, it is still important for Turkish citizens. Art. 13 ARB 1/80 provides for a so-called “stand-still clause” for Turkish employees. The Member States of the European Union are not allowed to introduce new restrictions on the conditions of access to the labor market for Turkish workers and their family members who are legally resident and employed in their territory. The regulation is also important in terms of residence law. The case law of the European Court of Justice on this has already caused some administrative courts to "reactivate" the regulation, which has long since expired, and to reapply it to Turkish nationals because it is significantly more favorable compared to the applicable law of Section 81 of the Residence Act. However, no higher court rulings have been issued yet. How this knowledge would be implemented in practice is also unclear, since the official model of the fiction certificate does not provide for the variant of the provisionally permitted residence according to Section 21 (3) AuslG 1965.

Form of grant

The fiction certificate is issued in paper form as a three-part leaflet. Fiction certificates as electronic residence permits are not provided.

costs

For the fiction certificate, a fee of 20 euros is charged in accordance with Section 47, Paragraph 1, No. 8 of the Residence Ordinance (AufenthV) , and from 1 September 2017 of 13 euros. For minors, 10 euros are charged ( Section 50, Subsection 1, Sentence 1 of the Residence Ordinance).

The following are exempt from the fee:

  • Swiss citizens ( Section 52 subs. 2 sentence 6 AufenthV),
  • Association authorized persons acc. EU-Turkey association law ( Section 52a Paragraph 3 No. 3 Residence Ordinance),
  • recognized persons entitled to asylum and refugees (Section 52 subs. 3 No. 3 AufenthV),
  • Students who receive a scholarship from public funds and their family members (Section 52 (5) No. 3 Residence Ordinance),
  • SGB ​​II - and SGB ​​XII - benefit recipients and recipients of benefits according to the AsylbLG ( § 53 Abs. 1 Nr. 5 AufenthV).

In addition, the fee can be waived or reduced in individual cases under certain conditions (Section 52 subs. 6 and 7 AufenthV).

literature

  • Rainer M. Hofmann, Holger Hoffmann (Eds.): Ausländerrecht Handkommentar , Nomos-Verlag Baden-Baden, 1st edition 2008, ISBN 978-3-8329-1171-3 .
  • Hans-Peter Welte: The significance of the fiction of continued validity of § 84 Paragraph 2 Sentence 2 AufenthG in terms of residence law. InfAuslR 2012, 89

Individual evidence

  1. ↑ Albrecht in Storr, Wenger, Eberle, Albrecht, Harms: Commentary on immigration law. 2nd edition 2008, § 81 Rn. 15th
  2. ↑ Consolidated version of the Treaty on the Functioning of the European Union (PDF, 475 kB), accessed on 20 June 2012. .
  3. ↑ See Section 52, Paragraph 2, Sentence 6, Residence Ordinance.
  4. ↑ BVerwG, decision of January 21, 2010 - 1 B 17.09 -, NVwZ-RR 2010, 330 (331).
  5. ↑ See OVG Sachs.-Anh., Decision of July 7, 2014 - 2 M 23/14 -, juris; Hess. VGH, decision of June 4, 2014 - 3 B 785/14 - .
  6. ^ Winkelmann in Bergmann, Dienelt: Ausländerrecht comment. 11th edition, 2016 § 14 No. 14; Lower. OVG, decision of July 12, 2012 - 8 ME 94/12 -; Bay. VGH, decision of June 21, 2013 - 10 CS 13.1002 -; Hess. VGH, decision of June 4, 2014 - 3 B 785/14 - , OVG Sachs.-Anh., Decision of July 7, 2014 - 2 M 23/14 -; VG Stuttgart; Decision of May 7, 2014 - 5 K 4470/13 -.
  7. ↑ General Administrative regulation for the Residence Act No. 81.5.3; following her: OVG Nordrh.-Westf., decision of May 11, 2009 - 18 B 8/09 -, ZAR 2009, 278/279.
  8. ↑ See Pfersich, ZAR 2009, 279/280; Samel in Bergmann / Dienelt, Aliens Law Commentary, 11th edition. 2016, § 58 marginal no. 35; Hailbronner, Aliens Law, Section 81, No. 13; Funke-Kaiser, GK Residence Act, Section 81 No. 31.
  9. ↑ According to Section 81, Paragraph 4, Clause 2 of the draft, the late applicant should receive a tolerance, cf. BT-Drs. 15/420 , PDF doc. 896 kB, p. 30 and p. 96.
  10. ↑ BVerwG, ruling v. June 22, 2011 - 1 C 5.10 -, NVwZ 2011, 1340.
  11. ↑ See Section 51 (1) No. 6 and 7 AufenthG; see also Samel in Bergmann / Dienelt, Immigration Law Commentary, 11th edition 2016, § 58 marginal no. 19th
  12. ↑ BVerwG, decision of January 21, 2010 - 1 B 17.09 -, NVwZ-RR 2010, 330/331.
  13. ↑ Text of ARB 1/80 , pdf-doc. 246 kB, available at www.migrationsrecht.net.
  14. ↑ VG Darmstadt , decision of September 29, 2011 - 5 L 936 / 11.DA -, NVwZ-RR 2012, 163; VG Aachen , decision of December 20, 2011 - 8 L 127/11 -, NVwZ-RR 2012, 37; see also Hofmann / Hoffmann, Section 81, no. 2.