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Your PWWL editorial team
Christine Wahlig
Attorney at law
Editorial Management
Alice Tanke
Marketing Manager
The shortage of skilled workers, which has persisted for years, and the associated need for a high level of skilled worker immigration in order to secure Germany’s position as a business location, has repeatedly brought the question of “how” skilled worker immigration should be handled into focus. The law and ordinance on the further development of skilled labor immigration passed on July 7 of this year are intended to address this concern once again. The declared goal is to significantly facilitate and increase the immigration of foreign specialists and workers. According to the report of the Budget Committee, it is hoped that qualified immigration will increase by 60,000 persons per year. However, the question remains open as to how the large number of applications will be processed promptly in the future.
Many Foreigners’ Authorities are already overwhelmed by the volume of applications they have to process, so that it is not uncommon for the initial interview for a residence permit or the processing of an application for the extension of a title to take up to six months. In order not to leave the residence status unresolved until the applications are processed, the legal residence is “frozen” by law, provided that the factual prerequisites are met. The foreigner must be issued a certificate, called a “fictitious certificate” (Fiktionsbescheinigung), confirming the existence of this so-called “fictitious effect”.
In view of the now common practice of issuing fictitious certificates for a not inconsiderable period of several weeks or even months, the question arises for employers as to how to deal with such a certificate and to what extent it entitles employees to take up gainful employment. Instead of the legal certainty intended by the legislator, there is often uncertainty as to how to deal with this in practice. Against this background, the following article discusses the different forms of a fictitious certificate as well as the respective legal consequences that such a fictitious certificate or its absence entails.
Depending on the initial situation, the law essentially provides for three different types of fictitious effects:
The so-called “permission fiction” (Erlaubnisfiktion) according to Section 81 (3) sentence 1 Residence Act takes effect if the foreigner is legally residing in Germany at the time of the first application. The permission fiction is typically issued to privileged nationals (so-called positive nationals) who do not require a visa for short stays in Germany. Nationals of the countries listed in Annex II of Regulation (EU) 2018/1806 (including the United States, the United Kingdom, Canada, and others) do not require a visa to enter the Federal Republic of Germany and may also stay in Germany without a visa for a period of 90 days within 180 days. However, if these persons wish to pursue gainful employment in Germany, they require a residence permit, which nationals of certain countries can also obtain in Germany. If this application is made in due time within the aforementioned 90-day period in Germany, a corresponding fictitious certificate with permit function is to be issued by the Foreigners’ Authority upon application. The foreigner’s stay in Germany is thus considered permitted until the decision on the application has been made.
The initial situation of the so-called “tolerance fiction” (Duldungsfiktion) (§ 81 para. 3 sentence 2 AufenthG) is significantly different: If the application for a residence permit is filed after the expiration of the 90-day period and thus late, the applicant remains obliged to leave the country until a hopefully positive decision on the residence, but the enforceability of the obligation to leave the country (deportation) is considered suspended due to the tolerance fiction.
However, the fictitious permission and toleration certificates have their limits: On the one hand, the corresponding fictitious certificates do not represent a travel document, so that the foreigner concerned can leave the Federal Republic during the time until the application procedure is completed, but as a rule cannot re-enter the country. If a trip abroad is planned during the application procedure, it is therefore necessary to consult the responsible case worker about the possibility of re-entry by means of a corresponding note in the fictitious certificate – however, there is no entitlement to this. On the other hand – and this is often the real problem from a practical point of view – both types of fictitious certificates do not provide the possibility of gainful employment. This means that the employee’s residence is (still) considered legal from the time of the timely application for the residence title or, in the case of a late application, the residence is tolerated, but there is no access to the German labor market until the decision on the residence title is made. Therefore, it is strongly recommended to point out the planned gainful employment already during the application process and to ask the responsible case worker to include a corresponding permission in the fictitious certificate. Although Section 81 (5a) of the Residence Act only provides for the possibility of allowing gainful employment between the commissioning of the Federal Printing Office to issue the residence title in card format (so-called electronic residence title “ERT”), in practice it has become established that gainful employment is often already permitted for the limited duration of the application procedure with the start of the application procedure and with the issue of the fictitious certificate. However, a corresponding note on the fictitious certificate is absolutely necessary.
The so-called “fiction of continued validity” (Fortgeltungsfiktion) is intended for the case that a foreigner applies for the extension of his residence title or the issuance of another residence title before it expires (Section 81 (4) Residence Act). In this case, the legal consequence is that the previous residence title is deemed to continue to be valid. If gainful employment was permitted in the original residence title, this continues to apply – including any ancillary provisions – for the period of the fictitious continuation of validity. It does not matter which residence title is to be extended; the only decisive factor is that the application for extension is made during the period of validity of the original residence title. In addition, the certificate of continued validity makes it possible to re-enter Germany and travel within the Schengen area.
The so-called limited effect of continued validity (beschränkte Fortgeltungsfiktionswirkung) should not go unmentioned, which becomes relevant if a period for lodging an objection or a complaint against the refusal to grant a residence title is running. In this case, the residence title is considered to be valid for the purpose of taking up or exercising gainful employment as long as the period for lodging the objection or complaint has not yet expired (Section 84 (2) sentence 2 Residence Act). The law does not explicitly provide for a certificate of the limited fiction of continued validity, but it is usually issued by the Foreigners’ Authority so that the foreigner can prove the existence of the effect of the limited fiction of continued validity to third parties. The certificate is therefore not an administrative act since it merely documents the existing legal status.
According to Section 4a (5) Sentence 3 no. 1 Residence Act, employers are only obliged to employ a foreigner if he or she has a residence title and there is no ban or restriction on the exercise of gainful employment. A copy of the residence title must be placed in the personnel file (§ 4a Par. 5 Sentence 3 No. 2 Residence Act), and the expiration date – ideally also an appropriate period of notice – should be noted on it. When submitting a fictitious certificate, it must first be ensured that the fictitious certificate permits the gainful employment at all and, if this is the case, whether this is subject to restrictions. Since the fictitious certificate, with the exception of its concrete type, does not make any statement about a possible existing residence title or about the concrete residence title applied for through the corresponding reference to the legal regulation (fictitious permission, fictitious toleration or fictitious continued validity), the employee should be encouraged to prove this to the employer and to submit a copy immediately after a corresponding approval of the residence permit.
Particular caution is required if employees are not even able to present a fictitious certificate, but only receive a standardized confirmation of receipt of the application documents by e-mail from the Foreigners’ Authorities. This is increasingly common practice, especially in metropolitan areas with high immigration, in order to cope with the high volume of applications. For example, the website of the Berlin State Office for Immigration (LEA) contains the following note: “Your residence permit was still valid on the day you booked your appointment? Then your residence title in Germany is considered to be valid until the booked date. This also applies to the ancillary provisions to your residence title. This means: You can continue to work or study until the deadline. Your booking confirmation, together with your previous residence title, is valid as proof of your permitted stay and can be presented to authorities and employers as appropriate proof.” If it is not possible to book an appointment, which is often the case due to the overload of the Foreigners’ Authorities, it is often stated that an application for the extension of a residence title by email also counts as an application, so that the residence title is thereby considered as continuing. In this case, it should also be possible to continue gainful employment. A concrete examination of the application and its completeness does not take place in the case of a standardized confirmation of receipt by e-mail. This therefore does not constitute a formal certification of the fictitious effect.
Since the employer cannot check whether all the necessary documents were actually submitted correctly and on time when the application was filed and whether an appointment was booked while the residence title was still valid, the employer often has no choice but to rely on the legality of the employee’s employment on the basis of the information provided by the Foreigners’ Authority in connection with the confirmation of receipt – provided that non-employment is not an option until the fictitious certificate or the residence title is issued. In this case, however, the employee should forward the confirmation of receipt to the employer, who can then file it in the personnel documents.
In any case, due to the clear statements of the LEA, the employer will probably not be reproached under regulatory or even criminal law if the LEA is competent, and it subsequently turns out that the residence permit did not continue to exist because the legal requirements for the fictitious effect were not met as assumed. A certain residual risk remains, however, since no court decision has yet been made on the legality of this administrative practice.
If an employee is unable to present either a current residence title or a fictitious certificate due to an overload of the Foreigners’ Authority, the website of the competent Foreigners’ Authority should at least be checked for corresponding information on the administrative practice for plausibility checks and – if possible – contacted in order to be able to inquire about the legal effect intended for standardized confirmations of receipt as “quasi-fictitious certificates”.
Employers should exercise particular caution when employing foreign employees if the foreigner can only present the confirmation of receipt of the Foreigners’ Authority by email as proof of an existing fictitious effect of a residence title applied for or to be extended. If a fictitious certificate is presented, it is mandatory to check whether the exercise of gainful employment is explicitly permitted in the fictitious certificate.
