HERE YOU LEARN ...
… what a fictitious certificate is and what legal significance the fictitious certificate has
... who receives a fictitious certificate
… whether you are allowed to travel and work with the different fictitious certificates (explanation with picture)
… how to apply for and extend a fictitious certificate
… how to obtain a fictitious certificate from the State Office for Immigration (LEA) in Berlin
Written by:
Attorney
Publication date:
16.03.2024
Reading time
11 mins
Table of Content
1. Fictitious certificate for foreigners
1.1 What is a fictitious certificate/legal significance of a fictitious certificate?
1.2 Who receives a fictitious certificate?
1.3 What does a fictitious certificate look like?
1.4 Difference between fictitious certificate and other residence documents
2. Travelling with a fictitious certificate (Section 81 (4) Residence Act)
2.1 Can you travel with the fictitious certificate?
2.2 Travelling with a fictitious certificate according to Section 81 Paragraph 3 Sentence 1 Residence Act (declaration with photo)
2.3 Travelling with a fictitious certificate according to Section 81 Paragraph 4 of the Residence Act (declaration with photo)
3. Can I work with a fictitious certificate? (Explanation with picture)
4. Apply for a fictitious certificate
4.1 How do I apply for a fictitious certificate?
4.2 Apply for a fictitious certificate at the State Office for Immigration (LEA) in Berlin
4.3 Extending the fictitious certificate
5. What can I do if I am not issued with a fictitious certificate?
6. FAQ on fictitious certificate
1. Fictitious certificate for foreigners
1.1 What is a fictitious certificate?
The “temporary permit/certificate” or “fictional visa/certificate” is a document for foreigners that is issued by the immigration authorities. Anyone who has a “fictional certificate” is allowed to stay in Germany legally .
What is the legal significance of a fictitious certificate?
The fictitious certificate means that the stay in Germany is permitted, even though the foreigner does not currently have a valid residence permit (e.g. because the residence permit or visa has expired). The foreigner's stay with a fictitious certificate is therefore "fictitiously" permitted. In other words: the foreigner's stay is actually not permitted due to an expired visa or residence permit, but the fictitious certificate "fictitiously" acts as if the foreigner had a valid residence permit . The residence permit is therefore effectively extended for the duration of the fictitious effect.
There are the following types of fictitious certificate :
Certificate of fiction for visa-free stay (Section 81 Paragraph 3 of the Residence Act)
Certificate of fiction in the case of expired residence permits (Section 81 paragraph 4 of the Residence Act)
Fictitious certificate for working without a work permit (Section 81, Paragraph 5a of the Residence Act)
Each of these types of fictitious certificate has different requirements and legal consequences.
Difference between fictitious certificate and other residence documents
The fictitious certificate is often confused with other residence documents. Here you can find out what the difference is between a fictitious certificate and other documents from the immigration authorities.
1.2 Who receives a fictitious certificate?
A fictitious certificate can be applied for or issued in different situations. However, the following requirements must be met for all variants of the fictitious certificate:
1. The current stay in Germany is legal (e.g. due to a residence permit or visa exemption) and
2. During the legal stay, an application is made for a residence permit or the extension of a residence permit.
In short: you must apply for a new residence permit or an extension of your residence permit while your residence permit or visa is still valid . If you apply for a new residence permit in good time, the "fictitious effect" takes effect (§§ 81 para. 3, para. 4 Residence Act). If this fictitious effect has occurred, the immigration authorities must issue a fictitious certificate (§ 81 para. 4 Residence Act). In certain exceptional cases, a fictitious certificate can also be applied for after the residence permit has expired.
1.3 What does a fictitious certificate look like? (Sample fictitious certificate according to the Residence Ordinance)
The image below shows a sample of a fictitious certificate according to the Residence Ordinance (official form):
2. Travelling with a fictitious certificate (Section 81 (4) Residence Act)
Many people wonder whether they can travel with a fictitious certificate. The (unfortunately not so simple) answer is presented below.
2.1 Can you travel with the fictitious certificate?
The answer to the question of whether you can travel with a fictitious certificate depends on what type of fictitious certificate you have. You also have to differentiate between leaving the country and entering the country. While leaving the country with a fictitious certificate is possible without any problems with all fictitious certificates, re-entry into Germany is only possible with the fictitious certificate in accordance with Section 81 Paragraph 4 of the Residence Act .
2.2 Travel with a fictitious certificate according to Section 81 Paragraph 3 Sentence 1 Residence Act
The fictitious certificates differ fundamentally depending on whether you currently have a residence permit or not. If you are in Germany without a residence permit (e.g. because of visa exemption for certain nationalities) and then receive a fictitious certificate, you are not allowed to travel with the fictitious certificate (Section 81 Paragraph 3 Sentence 1 of the Residence Act). If you leave Germany, you must therefore wait until you are allowed to re-enter for 90 days within 180 days.
2.2 Travel with a fictitious certificate according to Section 81 Paragraph 3 Sentence 1 Residence Act
The fictitious certificates differ fundamentally depending on whether you currently have a residence permit or not. If you are in Germany without a residence permit (e.g. because of visa exemption for certain nationalities) and then receive a fictitious certificate, you are not allowed to travel with the fictitious certificate (Section 81 Paragraph 3 Sentence 1 of the Residence Act). If you leave Germany, you must therefore wait until you are allowed to re-enter for 90 days within 180 days.
2.3 Travelling with a fictitious certificate according to Section 81 Paragraph 4 of the Residence Act (declaration with photo)
If you already had another residence permit when you applied for a residence permit (e.g. visa or residence permit), you will be issued with a fictitious certificate in accordance with Section 81 Paragraph 4 of the Residence Act. This fictitious certificate confirms that your stay in Germany is still legal and that the previous residence permit is still “fictitiously” valid . Your stay is therefore still valid (until the immigration authorities have decided on your application). As your residence permit is still valid, you can continue to travel with your residence permit. With the fictitious certificate in accordance with Section 81 Paragraph 4 of the Residence Act, you can therefore travel within and outside Europe .
With the fictitious certificate according to Section 81 Paragraph 4 of the Residence Act, you are allowed to travel within and outside Europe .
3. Can I work with a fictitious certificate?
Whether you are allowed to work with a fictitious certificate depends on whether you were allowed to work before applying for your residence permit or not. The fictitious certificate “fictitiously” extends the previous residence permit. If you were not allowed to work before applying for a residence permit (e.g. as a visa-free national), you are not allowed to work with the fictitious certificate either (Section 81 Paragraph 3 of the Residence Act). However, if you were already allowed to work before applying for a new residence permit (e.g. because you entered the country with a work visa or because you have an EU Blue Card), you are also allowed to work with the fictitious certificate (Section 81 Paragraph 4 of the Residence Act).
Whether you are allowed to work or be gainfully employed with the fictitious certificate is always recorded in the fictitious certificate. In this respect, the fictitious certificate states under the point “Supplementary provisions” whether you are allowed to work.
If “ Employment permitted ” is entered in the red area in the image, you can do any job (including self-employment). If “ Employment permitted ” is entered in the red circle in the image, you can work, but not be self-employed. If “Employment/gainful employment not permitted” is entered under additional conditions, you are not allowed to work with the fictitious certificate.
4. Apply for a fictitious certificate
4.1 How do I apply for a fictitious certificate?
Many people ask themselves how they can apply for a fictitious certificate. The question is legitimate, but fundamentally wrong. In order to receive a fictitious certificate (for the first time), you do not have to apply for the fictitious certificate, but for the residence permit itself. The fictitious certificate certifies that you have applied for a residence permit.
In principle, the immigration authorities must issue the fictitious certificate of residence on their own (or ex officio) after the application for a residence permit has been submitted (Section 81, Paragraph 5 of the Residence Act). In practice, however, this usually does not happen because the immigration authorities are massively overloaded. The fictitious certificate must then be applied for separately.
4.2 Apply for a fictitious certificate in Berlin
In Berlin, the fictitious certificate can be applied for at the State Office for Immigration (LEA) using the online form . After you have determined your responsible department at the State Office for Immigration (LEA) (e.g. for the EU Blue Card), you can select the subcategory “ Fictitious certificate - issued after an application (if departments B1 - B3 are responsible)” in the contact form. The data is then automatically sent to the State Office for Immigration (LEA) and your clerk should then issue a fictitious certificate or set an appointment for the fictitious certificate to be issued.
Unfortunately, the State Office for Immigration (LEA) in Berlin is extremely overloaded. It is therefore very difficult to obtain a fictitious certificate in Berlin. If in doubt, you can commission an immigration lawyer to apply for the fictitious certificate. If in doubt, the lawyer can issue you with a letter confirming that you have applied for a residence permit and that your stay in Germany is therefore “fictitiously” permitted. In theory, you can also file a suit with the Berlin Administrative Court (VG Berlin) to obtain a fictitious certificate (see VG Berlin, decision of February 7, 2012 – VG 15 L 3.12). However, this can incur comparably high costs.
4.3 Extending the fictitious certificate
If your fictitious certificate has expired, it must be renewed. Contrary to popular belief, however, your stay does not become illegal when the fictitious certificate expires . The fictitious effect therefore occurs independently of the issuance of the fictitious certificate. The issuance of the fictitious certificate only has a “ declaratory effect ”. The fictitious certificate therefore does not permit the stay (constitutive effect), but only certifies that the stay is permitted (declaratory effect).
4.3 Extending the fictitious certificate
If your fictitious certificate has expired, it must be renewed. Contrary to popular belief, however, your stay does not become illegal when the fictitious certificate expires . The fictitious effect therefore occurs independently of the issuance of the fictitious certificate. The issuance of the fictitious certificate only has a “ declaratory effect ”. The fictitious certificate therefore does not permit the stay (constitutive effect), but only certifies that the stay is permitted (declaratory effect).
5. What can I do if I am not issued with a fictitious certificate?
Many people have the problem that they do not receive a fictitious certificate, although they are entitled to one. In principle, you are entitled to be issued with a fictitious certificate (§§ 81 Para. 3, Para. 4 Residence Act). However, a fictitious certificate is not necessary to trigger the fictitious effect (so-called declaratory effect of the fictitious certificate). In concrete terms, this means that the legal effects of the fictitious certificate also apply if one has not been issued. All that is required is that you submit an application before the legality of your stay expires. The immigration authorities do not have to confirm this to you additionally.
If the immigration authorities do not issue you with a fictitious certificate, you can hire a lawyer to obtain one. A lawyer can issue you with a letter of attorney regarding the occurrence of the fictitious effect. This letter of attorney is accepted by most authorities. The lawyer can also apply for an interim injunction at the administrative court. The administrative court will then order that the immigration authorities must issue a fictitious certificate.
6. FAQ (Fiktionsbescheinigung)
Difference between a fictitious certificate and a residence permit
The fictitious certificate is not a residence permit. The fictitious certificate merely confirms that your stay in Germany is permitted. If you previously held a residence permit, the fictitious certificate also confirms that this residence permit remains valid until a decision is made by the immigration authorities.
Difference between a fictitious certificate and a tolerated stay permit
The fictitious certificate is not a tolerated stay permit. With a fictitious certificate, residence is generally permitted, but not with a tolerated stay permit. The regulations on the fictitious certificate therefore do not apply to the tolerated stay.
Difference between a fictitious certificate and a permit
The fictitious certificate is different from a permit. The fictitious certificate confirms that residence in Germany is permitted (on the basis of a residence permit or visa exemption). The permit only confirms that the holder of the certificate has applied for asylum.
Difference between a fictitious certificate and a border crossing certificate (GÜB)
The fictitious certificate is different from the border crossing certificate (GÜB). The border crossing certificate only certifies that the foreigner has entered Germany and must leave Germany by a certain date.
Where can you apply for the fictitious entry certificate?
The fictitious certificate must always be applied for at your local immigration authority. Which authority is responsible for you is generally determined by your place of residence. The Federal Office for Migration and Refugees (BAMF) provides an online tool which you can use to find out which immigration authority is responsible for you and where you can apply for the fiction certificate.
Can I apply for the fictitious certificate online?
The fiction certificate can be applied for online if your foreigners authority provides a corresponding online system. Most large immigration authorities now offer an online application for the fiction certificate (see e.g. Applying for a fiction certificate online in Düsseldorf). Smaller immigration authorities (especially in rural areas) usually do not offer the option of applying for a fiction certificate online.
Do I need an appointment to apply for the fiction certificate?
Whether you need an appointment to apply for a fiction certificate depends on your foreigners authority. In this respect, for example, many immigration authorities offer to extend the fiction certificate without an appointment at the service desk. You will need to ask your immigration officer whether this is also the case at your immigration office.
Is there a form for applying for a fictitious certificate?
No, there is generally no form for applying for a fictitious certificate. Most immigration authorities only offer forms for applying for residence permits. However, the fictitious certificate is not a residence title (see above).
Special case: Are fictitious certificates also issued to foreigners from Ukraine?
Yes, in principle, fictitious certificates are also issued to people who have fled Ukraine. It is irrelevant whether the refugees actually have Ukrainian nationality. The foreigner must only have made use of the Ukraine Residence Transitional Regulation, without it being important whether the applicant also comes from Ukraine (VGH Baden-Württemberg, decision of 26.10.2022 - 11 S 1467/22).
Can my application for a fictitious certificate be rejected?
No! Foreigners authorities repeatedly claim that fictitious certificates are only issued “in exceptional cases” (e.g. for an upcoming trip). However, this is wrong and unlawful. The Residence Act states that a fictitious certificate must always be issued after an application for a residence permit has been submitted. In this respect, there are no grounds for refusing a fictitious certificate. If your authority refuses to issue a fictitious certificate, you can instruct a lawyer specializing in immigration law to obtain the fictitious certificate for you.
Will I receive a fictitious certificate if I am in Germany on a Schengen visa and then apply for a residence permit?
No. Normally, a Schengen stay would be a legal stay, so that a fictitious certificate could be issued. However, the legislator has made an exception for the Schengen visa in order to prevent foreigners from using the Schengen visa to stay in Germany. A fictitious certificate can therefore not be applied for with a Schengen visa (Sec. 81 (4) Sentence 2 AufenthG).
What do I have to do if my fiction certificate has expired?
As a rule, extending the fiction certificate is not a problem. All you have to do is contact your case officer about extending the fiction certificate or visit the Foreigners' Registration Office. However, the exact procedure differs from immigration office to immigration office.
What do I have to do if I have lost my fiction certificate?
Losing your fiction certificate has no legal effect. Your residence in Germany is still legal, even if you have lost the fictitious certificate (declaratory effect of the fictitious certificate). All you have to do is apply for a new fiction certificate from your immigration office.
How often can the fictitious certificate be extended?
There is no rule as to how often the fiction certificate can be extended. The fictitious certificate can therefore be extended indefinitely as long as the foreigners authority has not made a decision on your application for a residence permit. Some foreigners stay in Germany for several years with a fictitious certificate. This is legally possible without any problems.
How long is the fictitious certificate valid for?
How long the fiction certificate is valid depends on your case officer. In most cases, fictitious certificates are issued with a validity of 3 - 6 months. However, some immigration authorities also issue fictitious certificates that are valid for 9 or even 12 months (or even longer).
Does the Jobcenter accept a fictitious certificate?
Whether the Jobcenter (or other authorities) accepts the fictitious certificate depends on the person in charge. However, many authorities (including the Jobcenter) accept fictitious certificates as proof of residence. If this is not the case, you can instruct a lawyer specializing in immigration law to enforce your rights.
What does a fictitious certificate cost?
The issue of a fictitious certificate costs 13 euros (§ 47 Para. 1 No. 8 AufenthV).
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Certificate of fiction from the Berlin State Office for Immigration
Literature: BeckOK AuslR/Kluth, 42nd Ed. 1.7.2024, AufenthG § 81 Rn. 32 - 42.2
Literature: BeckOK MigR/Zimmerer, 19th Ed. 1.7.2024, Residence Act § 81 Rn. 1 - 44
