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Hello and good morning, may you are in a good health.

My fiance has been granted with subsidiniary protection on Feb 2022. We are now in the process to get married in Germany and has compiled all the documents.

However, my fiance still holding his Fiktionsbescheinigung after a year and has ben renewed. Upon checking it turns out that there is an open crimininal offense in his case.

He came to Getmany as an undocumented person and has applied for asylum once he has arrived in Germany. On Feb 2022 bamf has granted him with subsidiniary protection.

We know that many people who came to Germany without any documents have been granted for asylum but they are facing an issue with their resident permit application.

May we know what are normally happen for people in this situation and are we still allowed to get married in Germany (we both are not German citizen)

Thank you so much. Any advice and guidance would be really appreciated.
asked May 5, 2023 in Legal advice by anonymous_ | 677 views

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1 Answer

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Hi @Arie

Firstly, your fiance is not at present undocumented. He is currently in possession of a Fiktionsbescheinigung, which states they have the right to be in Germany. Presumably before the Fiktionsbescheinigung and before the decision by BAMF he was given the paper ‘Aufenthaltsgestattung’. With this paper he was also legal in Germany for the duration of the asylum procedure. It is only the time before he made an asylum claim that he can be described as undocumented.

It can take time for permits to be issued but in his case it seems extremely long. A criminal conviction can be taken into account when deciding whether or not to issue a person with a residence permit. However, it would have to be a serious crime in order to prevent someone being given a permit for subsidiary protection.

Are you sure he is in possession of a Fiktionsbescheinigung and not another type of Bescheingiung while states he is to be issued with a resident permit? These are separate types of papers with different legal standings. A Fiktionsbescheiniogung simply states that someone has applied for a permit and a decision has not yet been made. The other type states that a decision has been made and the person is entitled to a permit (it just hasn’t been issued yet in card form).

Regardless of which paper he has, he can get married with it. The important issues for the marriage registration office (Standesamt) are if the person is resident in their area, if their identity is clear and if they are eligible to marry (i.e. not already married). Depending on the consequences for you in term of residency after the marriage, the Standesamt may **** into your relationship history in detail as part of the process of preventing sham marriages.

Best,

Éanna

answered May 11, 2023 by mbeon-Éanna
Thank you so much for your explainations. Yes, he is holding Fiktionsbescheiniogung as that was his first time application after receiving the subsidiniary protection from bamf.

May I know if people who came to Germany as an undocumented person would be charged later on even though they got positive result from the bamf. Because my fiance has done no criminal during his staying in Germany.

Thank you so much. Any advuce and guidance would be really appreciated.

You're welcome @Arie

If your fiance has been charged with something, then he should be informed as to what crime exactly. There are specific crimes regarding residency and lack of documentation. One is, for example, illegal entry (illegale Einreise) if a person enters Germany without the correct documentation. However, this does not count as a crime if such a person applies for asylum immediately after arriving in Germany.

If your fiance applied for asylum at a later date and therefore spent some time living in Germany without documentation, then potentially he is liable for this crime 'illegaler Aufenthalt'. However, as I wrote above, it is serious crimes (i.e. with a prison sentence of at least two years) which would weigh heavily against him receiving a permit.

If you have further questions about this, then you need to provide some more information about which laws were potentially broken and at what stage the case is at. But please do not share any personal information if doing so and be aware that we cannot provide and legal advice here.

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