- The speed and effect of an Untätigkeitsklage are location-specific
- In Berlin, they're not petty about it. If there is a credible threat of legal action, it will usually speed things up and not go to court.
- In other places it can bes perceived as hostile and make things worse.
- If it does not go to court, you bear your own legal costs.
- If it goes to court, it can take a few months (~9 months for a PR) and up to 2-3 years. You might still have to bear the costs.
- If you file the lawsuit yourself, without a lawyer, it won't be perceived as a credible threat and it will likely go to court.
"I do wonder if at some point the courts are like naja"
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You are legally entitled to a Fiktionsbescheinigung, and the refusal of the Berlin Landesamt für Einwanderung is not legally justified. §81 AufenthG uses "ist ... auszustellen", not "kann ausgestellt werden, wenn es keine Umstände macht".
- Good luck enforcing that. There is no practical way to guarantee a Fiktionsbescheinigung.
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The Fiktionsbescheinigung is just a certificate of your Fiktionswirkung (basically your right to stay in Germany while you wait for the Ausländerbehörde). If you don't have the Bescheinigung, the Wirkung still exists. However good luck explaining this to the airline staff when you want to return to Germany.
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People from the best friends countries can travel with an expired residence permit if a Fiktionswirkung exists (if they were entitled to a Fiktionsbescheinigung, but did not receive it).
- If you are a citizen of §41 AufenthV countries, you can come to Germany with the intention of applying for a residence permit
- If you are a citizen of Anlage A AufenthV, you can come to Germany with a visa for 90 days. The 90 days period does not include your time on a residence permit. (§16 AufenthV)
- The combination of these laws allows free travel, according to the Bundespolizei's current interpretation of the law.
- This interpretation can change, so do not treat this information as gospel.
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People not from best friend countries can't travel without a Fiktionsbescheinigung, even if a Fiktionswirkung exists. They probably won't get on the plane.
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They no longer mail the Fiktionsbescheinigung. You have to pick it up in person.
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In exceptional cases, a Fiktionsbescheinigung could be mailed to you abroad to help you return to Germany. It's not common, but not impossible.
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There is a new template for the Fiktionsbescheinigung with a fourth box for FreizügG/EU cases (spouses of EU citizens?). It allows international travel and re-entry. This is not documented by anyone yet.
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Ask the Bundespolizei about your situation to be sure. There is a contact form on their website.
- There's a FragDenStaat request for access to the Dienstanweisung BRAS 120, essentially the Bundespolizei's policies. There might be some answers in there. Currently the newest public version is from 2014.
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When you return to Germany, it's better to fly directly to Germany and deal with German border police. The Dutch border police might not know about these things, for example.
- People on Facebook reported issues at the airport with the Fiktionsbescheinigung.
- The B1 language certificate is not usually needed. Most of the time the conversation with your case worker is sufficient proof of your German skills.
- The integration course is not always required. Most people said that they did not need one. The VAB says that it's negotiable. There is no clear rule of when that requirement is waived.
- "We are not miracle workers." Lawyers can improve your chances, speed things up, and pressure the Ausländerbehörde to get things done. They can't help you magically skip the queue. They also struggle to reach the Ausländerbehörde.
This document is just meeting notes between an immigration and me. It is my personal interpretation of a private conversation. It is not legal advice. If my understanding changes, this document will not be updated.
When I properly understand and verify this information, I will post it on All About Berlin, likely at the following URLs: