A. Facts
What had happened?
A managerial employee at an international technology company was faced with the problem that a severance payment agreed upon in a termination agreement was contingent on the timely submission of a fictitious termination certificate . Payment of the severance payment was only to be made if the fictitious termination certificate was submitted by a contractually specified deadline. Failure to meet this deadline would, however, make payment of the severance payment impossible.
In order to obtain the fictitious certificate of residence in a timely manner, the employee contacted the immigration authorities in numerous ways. She wrote emails and letters, filled out the online contact form, attempted to book an appointment, and called the immigration authorities countless times. Unfortunately, all attempts to reach the immigration authorities were unsuccessful. Therefore, two weeks before the deadline, an independent VISAGUARD-certified attorney was hired to ensure the timely procurement of the fictitious certificate.
B. Legal solution
How did the VISAGUARD lawyer resolve the case?
To ensure compliance with the deadline, the appointed lawyer immediately contacted the responsible State Office for Immigration (LEA). He invoked the employee's legal right under Section 81 Paragraph 4 of the Residence Act (AufenthG) and argued that the failure to issue the fictitious certificate despite a timely application constituted a violation of law. According to Section 81 Paragraph 4 Sentence 1 of the Residence Act, the so-called fictitious effect occurs by operation of law if the application is submitted on time, meaning that the immigration authorities are obligated to at least issue a corresponding certificate.
Despite repeated legal reminders, sent both via the court's internal communication systems and through formal letters, the authority initially failed to respond. Only after an explicit threat of legal action by way of interim relief and the submission of a pre-drafted application for a preliminary injunction did the proceedings begin to move forward. Due to significant backlogs in the responsible department, B2, the department head ultimately issued the fictitious certificate itself. This enabled the employee to submit the required certificate on time, ultimately enabling the payment of the contractually agreed severance payment.
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C. Conclusion
What can we learn from this case?
This case illustrates that the fictitious residence permit not only serves as proof of continued legal residence status in Germany, but in certain situations, such as in this case with employment law settlement agreements, can also have significant economic consequences. According to Section 4a Paragraph 5 Sentence 2 No. 2 of the Residence Act, employers are obligated to retain a copy of the valid residence permit or a corresponding certificate for the duration of the employment relationship. Consequently, paying salary or severance pay when the residence permit has expired without presenting a fictitious residence permit is legally risky. Employers are entitled to insist on the presentation of a corresponding certificate, citing this legal obligation.
The case further illustrates that, despite the existing legal obligation (Section 81 (5) of the Residence Act), the issuance of fictitious certificates by immigration authorities often only occurs under considerable pressure and insistence. Experience shows that, in practice, applications for fictitious certificates are repeatedly delayed or rejected for a variety of reasons, often incorrectly stated. Applicants in such cases should not rely solely on official statements, but should actively assert their legal claim, if necessary with the assistance of a lawyer. If necessary, the claim can be enforced through interim relief before the administrative courts.
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