Anyone who has ever applied for naturalization knows the problem: the foreigners authority takes its time, months go by and no decision is made.
For many people, this situation is not only frustrating, but also existentially stressful - after all, it is not only about the freedom to travel associated with German citizenship, but often also about their own future, that of their family, spouses, parents or children joining them.
The uncertainty as to whether and when the authorities will react can lead to considerable stress.
But what can those affected do if the waiting time gets longer and longer and there is no response?
The good news is that there are legal options for taking action against long processing times or inaction on the part of the authorities. An action for failure to act before the administrative court can be the key to finally getting the process moving.
In this article, lawyer and specialist lawyer for migration law Björn Maibaum provides information on when and how an action for failure to act can be brought, what requirements must be met and what costs and prospects of success can be expected.
Anyone who has ever had to deal with the foreigners authority knows that long waiting times are often the order of the day. Whether it's the extension of a residence permit, the granting of a settlement permit or naturalization - waiting for an official decision is often nerve-wracking, especially when it comes to your own future or that of your family.
Especially when you as an applicant are waiting for an answer from the authorities and the waiting time is getting longer and longer, a feeling of hope, uncertainty and growing frustration sets in as time passes and there is no response.
Many of those affected often feel helpless, left alone or treated unfairly. The uncertainty can lead to stress, anxiety and sleeplessness, especially if there have already been problems with the immigration authorities in the past.
Would you like to file an action for failure to act?
The processing time of the immigration authorities for naturalization is often over a year. We help you with difficulties with the authorities and speed up the process for you.
Contact us at any time for an initial consultation!
It often takes a year or more for an application to be processed and decided by the immigration authorities. Frequent reasons for such long and nerve-wracking processing times for those affected are a lack of staff at the authorities and a high number of applications.
However, the applicant is not responsible for the problems of the authority and has no influence on them. These are problems caused by the authorities themselves and can be avoided through organizational measures.
Both overloading and understaffing of the authority are therefore not reasons that justify a long or even excessive processing time. This is all the more true as an increased volume of applications is usually already apparent years in advance, for example due to required minimum residence periods.
For example, the Regional Court of Aachen stated in a decision dated October 5, 2005 - 4 O 38/04:
"If an authority remains inactive due to inadequate staffing or inactivity of the case officer...there is no proper administrative procedure, but a breach of official duty that leads to liability for damages."
"Normal absences due to illness must be compensated for organizationally. If an authority is generally overloaded or if the workload increases continuously without a response being made, this does not constitute a sufficient reason."
If the authority tries to justify the processing time with these reasons, measures can and should be considered that can speed up the processing time, such as an action for failure to act before the administrative court.
The action for failure to act is a legal remedy for persons who wish to take action against the failure of a public authority to act because their application to a public authority has not been processed within a reasonable period of time.
The aim of the action for failure to act is to oblige the authority to finally process the application and make a decision. To this end, the administrative court obliges the head of the authority to carry out the naturalization (in so-called entitlement cases) or to decide on the application (in so-called discretionary cases).
Such a judgment can also be enforced within the framework of compulsory enforcement, usually by ordering the authority to pay a fine. Further excuses are therefore of no help to the authority.
The action is regulated in Section 75 of the Administrative Court Code (VwGO) and is primarily aimed at people who are affected by long delays.
On the one hand, if an authority does not respond to an application - for example for naturalization, residence permit or settlement permit - within a reasonable period of time.
Secondly, if an objection has been lodged against an official decision and no response has been received or a decision has been made on the objection even after a reasonable period has expired.
For many people, the action for failure to act is the only way to break through long waiting times and enforce their rights. Especially in situations involving existential uncertainty, such as the extension of a residence permit or an application for naturalization, it can be a great relief, as it leads to a faster decision by the authorities.
However, it also entails challenges, as the action for failure to act before the administrative courts can also be time-consuming.
The good thing is that by involving the authority's litigation department and the judge, several bodies are now involved that have an interest in a speedy decision.
There is also no guarantee that the authorities will make a positive decision. However, after good preparation by a specialist lawyer, it can be filed without risk. In any case, it gives applicants the certainty that they do not have to remain in limbo permanently.
In order for an action for failure to act to be successful or to be brought at all, certain requirements must be met.
Firstly, it must be a valid application, e.g. an application for naturalization on which the authority has not made a decision within a reasonable period of time, or an objection.
Informal contact, such as a telephone call, email or an oral application, is generally sufficient. However, the application should at least be submitted in writing or by email, ideally with a confirmation of receipt so that you have proof of receipt of the application at a later date.
Secondly, there should be a reasonable period of time between the application and the action for failure to act. The authority must have a reasonable period of time to make a decision after the application has been submitted or the appeal has been lodged.
With regard to the reasonable period or waiting period, the provision of Section 75 VwGO itself refers to a period of three months.
However, supreme court case law considers the time of the court decision to be decisive for the expiry of the time limit within the scope of Section 75 VwGO, not the time of filing the action (BVerwGE 23, 135, 137; 42, 108, 110; BVerwG NVwZ 1995, 80).
Something else always applies if the matter in question cannot be processed for three months because a decision has to be made earlier, or if the authority unlawfully refuses to process or accept the application, for example by invoking its lack of competence or missing deadlines.
In these cases, it is advisable to file a claim immediately.
The prerequisite for filing an action for failure to act is that there are no objective reasons that justify a longer processing time. Reasons such as a lack of staff or a large number of applications at the authority are generally not recognized by the administrative courts as sufficient objective reasons.
However, if there are objective reasons for processing the application, such as missing documents, a particularly complex or extensive decision, the examination of extensive documents, legally required participation procedures of other authorities (e.g. security authorities) or exceptional circumstances, a longer processing time may be justified by way of exception.
If such objective and demonstrable reasons exist, the court could consider the authority's long processing time as justified and not as inactivity. The claim would then be dismissed and the costs would exceptionally be borne by the claimants.
The action for failure to act can only be brought if the proceedings are actually still pending and the authority has not yet made a final decision. As soon as the authority has made a decision, the action for failure to act is "settled". The court will then only decide who has to bear the costs, whereby the existence of an objective reason for the delay is also important.
Before an action for failure to act is brought, a lawyer should be instructed to check the prospects of success.
You can also have a lawyer send a reminder to the authority in advance, setting a deadline. A professional letter from a specialist lawyer to the authority can often be enough to speed up a decision.
The action for failure to act can also be brought without a lawyer. However, this is not recommended. On the one hand, a lawyer increases the chances of success of the action. Secondly, a specialist lawyer for migration law can check whether the application for naturalization is complete and whether the naturalization has any chance of success.
If you are not entitled to naturalization, the application is not complete, the three-month deadline has not yet expired or other requirements for filing a claim have not been met, there is a risk that the claim will be dismissed. This is then associated with costs.
The costs of an action for failure to act in naturalization matters essentially consist of court costs and lawyers' fees.
The court costs are based on the so-called "value in dispute", which is 10,000 euros for an action for failure to act in naturalization proceedings, resulting in court costs of 798 euros. Each additional family member increases the "value in dispute" and therefore also leads to an increase in court costs.
If you are represented by a lawyer, you will incur additional costs in the amount of the agreed fee or the standard fee, which is also based on the amount in dispute. The authority must reimburse the standard fee if it loses the action for failure to act, i.e. if it is obliged to make a decision.
If your action for failure to act is successful, the authority will bear the court costs and the lawyer's fees according to the standard fee.
Before you file an action for failure to act, it is advisable to check the prospects of success and seek legal advice if necessary.
Costs of an action for failure to act: If the action is successful, the authority bears the costs of the statutory remuneration.
We kindly ask you to contact us by email.
We are also happy to help you by phone Monday to Friday from 9 a.m. to 12 a.m..
For legal advice appointments and Requests for new mandates, we kindly ask for a brief description of the situation by e-mail, stating your name and the phone number.
We are also happy to arrange consultation appointments via "MS Teams".
You are currently viewing a placeholder content from Facebook. To access the actual content, click the button below. Please note that doing so will share data with third-party providers.
More InformationYou need to load content from hCaptcha to submit the form. Please note that doing so will share data with third-party providers.
More InformationYou need to load content from reCAPTCHA to submit the form. Please note that doing so will share data with third-party providers.
More InformationYou need to load content from reCAPTCHA to submit the form. Please note that doing so will share data with third-party providers.
More InformationYou need to load content from reCAPTCHA to submit the form. Please note that doing so will share data with third-party providers.
More InformationYou need to load content from Turnstile to submit the form. Please note that doing so will share data with third-party providers.
More InformationYou are currently viewing a placeholder content from Instagram. To access the actual content, click the button below. Please note that doing so will share data with third-party providers.
More InformationYou are currently viewing a placeholder content from X. To access the actual content, click the button below. Please note that doing so will share data with third-party providers.
More Information