Action for Failure to Act Naturalization
All information from the lawyer on the action for failure to act for naturalization in Berlin
HERE YOU LEARN ...
... what an action for failure to act is
... what the requirements for an action for failure to act are
... how long the action for failure to act lasts and what it costs
... how you can file an action for failure to act yourself
Written by:
lawyer
Publication date:
September 23, 2024
Reading time
9 minutes
Table of Content
1. What is an action for failure to act?
2. Requirements for an action for failure to act
2.1. Application submitted
2.2. Expiry of the three-month period
2.3. No "sufficient reason"
3. Procedure for an action for failure to act (naturalization)
3.1. Filing of the statement of claim
3.2. Confirmation of receipt of the complaint
3.3. Reaction of the immigration authorities
4. Duration and costs of an action for failure to act (naturalization)
5. File an action for failure to act yourself (Berlin)
6. FAQ Action for failure to act
1. What is an action for failure to act?
It is well known that the migration authorities in Germany, especially in large cities like Berlin, are overwhelmed and suffer from a significant shortage of staff (see, for example, the rbb report “Waiting for the Berlin Immigration Office” from July 7, 2023 ). This means that applications for residence permits, family reunification or naturalization often take a very long time to process - in some cases this can take several years . There are currently tens of thousands of unprocessed naturalization applications in Berlin. This backlog is not only the result of the change in responsibility of the State Office for Immigration (LEA) (see VISAGUARD blog article on the change in responsibility at the LEA ), but also from the increasing number of applications caused by the reform of naturalization law in 2024.
Many of those affected feel helpless in the face of lengthy waiting times and unclear communication from the authorities. In such cases, one option may be to take action against the authority and seek to speed up the process legally . A lawsuit against the immigration authorities by an experienced immigration lawyer can help speed up the processing of your application and enforce your right to a speedy decision.
The action for failure to act is a special form of action for an order (Section 42 of the Administrative Court Act), with which you can legally force the authority to finally decide on your application. According to the law, an administrative authority must decide on applications such as for a residence permit or naturalization within three months (see Section 75 of the Administrative Court Act). If it fails to comply with this obligation, you can take the matter to the administrative court. The court forces the authority to make a decision and, if successful, the authority also bears the costs of the proceedings (Section 154 of the Administrative Court Act).
2. Requirements for an action for failure to act
If your application for a residence permit or naturalization has remained unanswered for months, an action for failure to act pursuant to Section 75 of the Administrative Court Act (VwGO) could be the right way to force the authority to make a decision. However, an action for failure to act has a number of requirements that you should be aware of.
2.1. Application submitted
The first requirement for an action for failure to act is that a formal application has been submitted to the responsible authority (Section 81 Paragraph 1 of the Residence Act). You must be able to prove this, for example with a confirmation of receipt , an automatic email or a record of the application process. Ideally, you have also submitted all the necessary documents. According to a recent ruling by the Weimar Administrative Court, it is not mandatory to submit all documents with the application (VG Weimar, ruling of June 11, 2024, case number 1 K 135/24 We), but it increases the chances of success of your lawsuit.
2.2. Expiry of the three-month period
Another requirement is that three months have passed since the application was submitted without the authority making a decision. Before this deadline, a lawsuit is inadmissible and will be dismissed by the court - in this case, you as the plaintiff must bear the legal costs. After the three months have passed, however, there is nothing to stop you from filing a lawsuit for failure to act.
2.3. No "sufficient reason"
An often problematic point is whether the authority can provide a so-called " sufficient reason" for the delay (see Section 75 sentence 2 of the Administrative Court Act). When such a reason exists is the subject of numerous court decisions. What is certain, however, is that a lack of staff and an overload of the authorities do not constitute a sufficient reason. The Weimar Administrative Court, for example, has ruled that the excessive workload of the immigration authorities that has existed since 2020/2021 does not constitute a sufficient reason within the meaning of Section 75 of the Administrative Court Act (VG Weimar, decision of June 11, 2024, ref. 1 K 135/24 We). The Federal Administrative Court has also stated that a "temporary flood of applications" as a result of a change in the law is only recognized as a sufficient reason if the overload is not of long duration (BVerfG, non-acceptance decision of January 16, 2017 - 1 BvR 2406/16). However, given the permanent overload of the authorities, this has long since ceased to be the case.
Possible sufficient reasons
However, in certain cases, courts may recognize a sufficient reason, for example:
If the applicant has failed to comply with his obligation to cooperate.
If ongoing or adopted legal reforms delay processing.
If required documents are missing.
Ultimately, the assessment of a sufficient reason always depends on the individual case. If you are unsure, it is therefore advisable to seek the support of an experienced immigration lawyer .
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3. Procedure for the action for failure to act
Many people who are waiting for a decision on their naturalization application wonder what the process of an action for failure to act looks like. Here we explain to you step by step how this process works and what you should pay attention to.
3.1. Filing of the statement of claim
The action for failure to act begins with the filing of the statement of claim with the administrative court. This statement of claim can be filed in various ways:
By post, directly to the competent court.
Through a lawyer who will prepare and file the lawsuit for you.
In person at the court office, where you can even dictate the complaint.
3.2. Confirmation of receipt of the complaint
About a week after filing, you will receive a confirmation of receipt from the court. This will inform you that the complaint has been received and will be served on the immigration authorities. This letter will also ask you to pay the court costs in order to continue the proceedings. At the same time, the court will usually ask the authorities for an explanation of the allegations, i.e. why they have not yet decided on your application.
3.3. Reaction of the immigration authorities
After you have paid the court costs, you must wait to see how the authority responds to the lawsuit. The court usually gives the authority four weeks to respond to the allegations.
The further course of the procedure depends on the behavior of the immigration authorities and the circumstances of your case:
Willingness of the authority to cooperate : If the authority is willing to cooperate and your case has a chance of success, you may soon be offered a naturalization appointment. This is often done to complete the process quickly.
Resistance from the authority : If the authority is not willing to cooperate, further written documents will be exchanged between your lawyer and the authority. In some cases, this will lead to an oral hearing in court.
Settlement : In most cases, a settlement is reached before a judgment is made. This means that the parties agree on a solution, for example by the authority promising a speedy decision on your naturalization application.
Court ruling : If no settlement is reached, the court will ultimately issue a ruling. This ruling may oblige the authority to make a decision.
In any case, the action for failure to act offers an opportunity to speed up the process and assert your rights. If you have any questions about the process or need support in filing a lawsuit, we will be happy to put you in touch with an experienced immigration lawyer .
4. Duration and costs of an action for failure to act (naturalization)
Filing an action for failure to act in the context of a naturalization procedure entails various costs. The most important are court fees and legal fees if you hire a lawyer.
Court fees are regulated by law in the Court Costs Act (GKG). An action for failure to act in the case of naturalization usually costs 798 euros . If successful, these costs will be reimbursed to you by the opposing party (Section 154 of the Administrative Court Act). However, it can take some time before a judgment is made and you receive these costs back. Legal fees vary depending on the city and the lawyer. A lawyer specializing in migration law and citizenship law usually charges between 2,500 and 4,000 euros for an action for failure to act.
It is difficult to estimate the duration of such proceedings as it depends on the specific circumstances of each case. If all the conditions are met and there is no sufficient reason for the delay, the proceedings can be completed within 1 to 2 months . However, in problematic cases where additional evidence gathering or legal discussions are necessary, the proceedings can take 6 to 12 months or longer. The workload of the courts and the seriousness with which the judge treats the case also play a role.
5. Filing an action for failure to act yourself: What you should know
Many people wonder whether they can file an action for failure to act on their own, without hiring a lawyer. The answer is yes, it is possible. In the first instance before most German administrative courts, there is no obligation to have a lawyer , which means that you can file your action independently.
filing the lawsuit
If you wish to bring an action for failure to act yourself, there are several ways to do so:
Written submission: You can write the statement of claim in writing and send it by post to the responsible administrative court.
Personal submission: You also have the option of going to the administrative court office and submitting your complaint there in person.
Dictating the complaint: If you find it difficult to write the complaint, you can even dictate the complaint orally at the court clerk's office. An official will take your statements and prepare the complaint accordingly.
Risks of filing an independent lawsuit
Although it is possible in principle to file an action for failure to act without a lawyer, you should be aware of the risks involved. An action for failure to act may seem simple at first glance, but in practice various pitfalls and legal hurdles can arise. If your case is completely unproblematic and all the requirements are met, it may make sense to file the action yourself.
When you should consult a lawyer
However, if there are uncertainties or the authority indicates legal or factual reasons for the delay, it is advisable to consult an experienced immigration lawyer. A lawyer can not only handle the correspondence professionally, but also assess the chances of success of your claim and guide you safely through the process in a more complex procedure .
If you have any questions or need assistance with your action for failure to act, an independent VISAGUARD-certified lawyer will be happy to assist you.
CONTACT US
Are you looking for a lawyer in German immigration and foreigners law? Our lawyers will be happy to support you in residence procedures before embassies, immigration authorities and administrative courts in Germany..
Contact us to book a consultation via video call! with a German Attorney for immigration law!
VISAGUARD.Berlin Legal Services
6. FAQ on the action for failure to act
Is work overload a sufficient reason for the delay?
No, case law and specialist literature have clearly ruled that an authority's workload is not a sufficient reason to prevent an action for failure to act. Lack of staff and overload are not legally recognized grounds for excuse.
Does the period for filing an action for failure to act begin when the application is submitted or only after all documents have been submitted?
The deadline for the action for failure to act according to Section 75 VwGO begins on the date of the application, not with the submission of the complete documents. This was confirmed, among other things, in the decision of the VG Weimar of June 11, 2024, ref. 1 K 135/24 We.
Will I get my money back if I win the action for failure to act?
Yes, if you win the action for failure to act, the authority will bear the costs of the proceedings (Section 154 of the Administrative Court Act). This means that you will get your money back.
Is particular urgency a reason for a faster decision by the authority or the court?
Yes, particular urgency can lead to a quicker decision. Both the circumstances of the authority and the urgency from the plaintiff's perspective are taken into account when assessing sufficient grounds. This was established, among other things, in the judgment of the Federal Administrative Court (BVerwG) of July 11, 2018 - 1 C 18.17.
Who has to prove whether there is a "sufficient reason" for the delay?
The authority bears the burden of proof and must demonstrate that there is a sufficient reason for the delay in the decision. This was clarified, for example, in the decision of the Saxon Higher Administrative Court of February 14, 2023 - 3 E 2/23.
This may also interest you
Further Information about this topic
Legal Application Office at the Administrative Court of Berlin
NK-VwGO/Michael Brenner, 5th edition 2018, VwGO § 75 Rn. 1-88
Schoch/Schneider/Porsch, 45th edition January 2024, VwGO § 75
