4

I have applied for a Residence Permit in Germany, and while the application is being processed, I've been given a Fiktionsbescheinigung (a temporary permit that allows me to stay in Germany with no consideration to the time left on my "visa"). I am a US citizen, so I don't have to get a visa for Schengen states, but I can only stay in Schengen region for 90 days in every 180 days.

I am assuming that somehow the border folks have access to my permit status, so when I enter or exit Germany, they don't count my time in Germany against my 90 days allocation. However, what if I travel to France by train? There are no border checks so I can travel to France, stay there, and then come back to Germany. Even if I have used up all my Schengen time, since I would be back in Germany, there would be no issue.

However, what if I exit Europe from France? At passport control, they would not know how long I've been in France, out of Germany. How much time would they allocate against my Schengen allowance?

I hope I have not made the above question too complicated, but I don't know how else to frame it.

|improve this question
  • There's no certain way to know how much time you've spent in France, so as long as you maintain a residence in Germany your German residence permit effectively allows you to spend as much time as you want in any Schengen country. If an official can develop evidence that you've exceeded the 90/180 rule in the rest of Schengen, you could get in trouble, but that evidence would have to come from somewhere other than your passport, and it wouldn't happen at a border crossing. I don't know how the Fiktionsbescheinigung affects this, hence this comment rather than an answer. – phoog Jan 18 '17 at 15:50
  • Thanks, you are right in that the French have no way of knowing how long I've spent in France. If they ask me, and I tell them, 'x' days, does that mean I would have 'x' fewer days left on my Schengen 90-days allotment? (My pessimistic reading says, 'yes', because the German permit only affects the stay in Germany while the regular Schengen rule applies to all other states.) But really, it is only my volunteering up with that info that can do this. Otoh, if I go back to Germany and exit Europe from there, then no one will ever know how long I stayed in France. This is so loosey-goosey. – punkish Jan 18 '17 at 15:55
  • If you exit France showing your German residence permit, I doubt they'll ask you how many days you've been anywhere, since they know there's no way to check your answer. The real reason for the application of the 90/180 rule to residence permit holders is so they can't use the permit to establish a residence in another Schengen country. This isn't enforced by border guards. If you're not found living in another country, you'll be fine. – phoog Jan 18 '17 at 16:10
4

There are three different kinds of Fiktionsbescheinigungen. If you have applied for your first residence permit in Germany, you will have been issued a so called Erlaubnisfiktion according to §81(3)1 AufenthG. This document is not a temporary residence permit, but a document confirming that your stay in Germany is tolerated until your application for a residence permit has been decided upon. The document does not give you the right to deduct your stay in Germany from the 90 days Schengen allowance, after exceeding 90 days in the Schengen area, you must expect problems if you try to leave the Schengen area from any other country but Germany, but perhaps most important is, that the document does not even allow you to reenter Germany if you have exhausted the allowed 90 days and then left (Allgemeine Verwaltungsvorschrift zum AufenthG).

|improve this answer
  • umm, actually while I have applied for my 1st Residence Permit, my Fiktionsbescheinigungen is actually marked "der Aufenthaltstitel als fortbestehend (§ 81 Abs. 4 AufenthG)." Given this info, what does it mean vis a vis the rest of your answer? Does my 90 day clock still keep on ticking for all of Schengen? Does it not tick only for Germany? Does it stop completely for all of Schengen? More practically, I have to decide if I should exit Europe from Germany (painful because I will have to return to Germany needlessly) or if I can exit from France (easier, but possibly problematic). – punkish Jan 19 '17 at 9:01
  • It means that you have been issued the wrong document. A Fortgeltungsfiktion according to §83(4) is issued if you apply for an extension of a current residence permit to possibly bridge any gap between the expiration of your old permit and the completion of your application resulting in a new permit. I am honestly not sure which implications that has on your situation. – Tor-Einar Jarnbjo Jan 19 '17 at 13:09
  • Not only did they issue it once to me, for a three month duration, they have extended it for another three months since my permit has not arrived (they don't know anything about its status). I am going with the assumption that the likelihood of them issuing me the "wrong document" twice is rather unlikely. – punkish Jan 19 '17 at 19:30
  • Sure, I can't prevent you from not believing that the authorities have made a mistake. I was indeed incorrectly referring to §83 instead of §81 (I've corrected it in my response, but can't edit my comment), but you can of course check the law yourself and see if paragraph 3 or 4 (section 81) is relevant for your case: gesetze-im-internet.de/englisch_aufenthg/englisch_aufenthg.html – Tor-Einar Jarnbjo Jan 19 '17 at 21:01
  • The relevant difference is, that with a Fiktionsbescheinigung according to §81(4), your previous residence permit is considered to remain in force, even if the expiration date has passed, with all the rights a regular residence permit gives you. With a Fiktionsbescheinigung according to §81(3), your stay in Germany is permitted during the processing of your first application for a residence permit, but you are not yet in posession of a valid residence permit, as understood by the Schengen regulations. – Tor-Einar Jarnbjo Jan 19 '17 at 21:11

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.