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I am Indian residing in Germany. I have applied for a resident permit as I am on work permit visa, which expires on July 23. The duration of my stay is limited to 90 days and ends on May 13, although the visa is valid for another 3 months.

As I have still not got my resident permit till July 23, is it safe to travel around Europe on a road trip (drive by rented car) after May 13, as I have plans to visit Austria and Hungary by road in June. Will there be lot of travel checks? If so, as my visa is still valid until July 23, is it safe to travel? The only issue is the duration of stay, which would have exceeded 90 days by then.

Please advise.

Thanks in advance.

  • The conditions of your visa sound like your authorised stay ends on 13th May, albeit the validity period is longer. When did you enter, and do you intend to return to Germany at the end of tour proposed trip? – Traveller Apr 24 '18 at 11:06
  • All the countries you mention are part of Schengen meaning that normally there won't be many checks at the borders, but the authorities of any country in Schengen can instate temporary checks at he borders, with only the time they need to implement it as warning. So in addition to being a bad idea, travelling without suitable visas are never safe. – Henrik - stop hurting Monica Apr 24 '18 at 11:14
  • yes i need to get back to germany at the end of my tour. – Pramod Mudlapur Apr 24 '18 at 11:55
  • My visa is valid for travelling across europe. but only concerned is that i might not be able to return to germany if i travel after 90 days to schengen area. I can stay in germany till my visa expires which was confirmed by the authorities here. Since am on road trip, what are the chances of visa check, even if they, will they just check the validity period or do they calculate 90 days of stay as well. Also, since i have an appointment for the RP in the month of June, will that help? – Pramod Mudlapur Apr 24 '18 at 11:57
  • @Pramod Mudlapur Is this your first RP application? Your question may have an answer here travel.stackexchange.com/questions/86411/… – Traveller Apr 24 '18 at 14:11
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If the processing time for a residence permit application extends beyond the validity of the visa you first used to enter Germany and it is expected that your application will be granted, it is common that you are allowed to stay in Germany until the application is processed. If you need to formalize your status, you can apply for a fictional certificate (Fiktionsbescheinigung), confirming so. In your situation, you should be entitled to a fictional certificate confirming the continuation of your previous right to stay beyond the original expiration date (May 13th) according to § 81 Abs. 4 AufenthG. With a fictional certificate based on § 81 Abs. 4 AufenthG, you are entitled to travel to other Schengen countries as if you had a regular residence permit and both leave and reenter Germany. Be aware that it is important in your situation that the certificate is based on § 81 Abs. 4 AufenthG. Fictional certificates based on other sections of the immigration law may not allow you to travel to other Schengen countries or reenter Germany.

Even if there are not supposed to be immigration checkpoints at the internal Schengen borders, there are currently due to the 'refugee situation' still frequent immigration checks at the land borders when going from Hungary to Austria or when going from Austria to Germany. Without the fictional certificate, you are not unlikely to experience problems at the borders if you are going on your planned road trip. Even with the certificate, it is not quite unlikely that you are held for questioning entering Austria. Immigration officers from other Schengen countries are often not familiar with the German fictional certificates and may not immediately recognize your right to stay.

  • It's not clear to me that "allowed to stay in Germany" pending processing of the application implies "allowed to be present in another Schengen state". Where do you get that implication from? The Borders Code (art. 2.16(b)(i)) explicitly excludes "temporary permits issued pending examination of a first application for a residence permit" from being considered a of residence permit for the purposes of the Schengen rules. – Henning Makholm Apr 24 '18 at 16:34
  • @HenningMakholm The national visa which currently entitles OP to stay in Germany is already considered equivalent to a residence permit. His current application is therefore not the first application for a 'new' residence permit, but an application for extension of his current residence title (which is the term used in the official English translation of German immigration law): 'If a foreigner applies for an extension of his or her residence title ..., the current residence title shall be deemed to remain in force from the time of its expiry until the time of the decision ...'. – Tor-Einar Jarnbjo Apr 24 '18 at 16:46
  • x @Tor-Einar: That is well and good for internal German purposes, but I'm not convinced it binds the other member states. Particularly because article 2.16(b)(ii) of the Borders Code explicitly says that a uniform visa is not a "residence permit" as far as the Borders Code (and therefore the exclusion in 2.16(b)(i)) is concerned. – Henning Makholm Apr 24 '18 at 16:58
  • @HenningMakholm The exception you are quoting refers only to short-term (type C) visas. These are correctly not considered a residence permit. Since OP also has a work permit, he must be holding a national type D visa, which also can be issued for only 90 days. – Tor-Einar Jarnbjo Apr 24 '18 at 17:23
  • Hmm, you may be right, though one needs to trace through references in three different EU regulations to get to the bottom of it. It does indeed appear that category D visas are not be covered by Regulation 1683/95, and so may not be excepted from being "residence permits". Though it is not entirely clear-cut still: Even though Reg 1683/95 does not by its own words apply to D visas, those visas are still as far as I know issued in the uniform format described by that regulation, which could possibly be enough for the exclusion in the Borders Code to apply to them. – Henning Makholm Apr 24 '18 at 17:49

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