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Compensation for damages from the immigration authorities
All important information from a lawyer on the subject of compensation against the immigration authorities in the event of loss of wages.
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About this Page
when you can get compensation from the immigration authorities
what you have to do if you want compensation from the authorities
when the authority must compensate for damages due to loss of wages and job loss
general information on the subject of official liability, e.g. when changing employers
Table of Contents
1. Compensation from the immigration authorities
2. Have the court compensate you for your loss of wages
3. Asserting official liability
3.1 Conditions for official liability
3.2 Documentation of official liability damages
4. Prevent job loss by suing
5. Rights vis-à-vis the employer
6. FAQ
7. Conclusion
3. Asserting official liability
3.1 Conditions for official liability
There are various requirements for asserting official liability or damages against the immigration authorities, which are outlined below. In order to be entitled to damages against the immigration authorities, the following requirements must be met:
Breach of official duty by the authority
An official or employee of the authority must have violated an official duty that was intended to protect the person concerned. In the case of the immigration authorities, the official duty to make a prompt and lawful decision is regularly violated.
Fault of the authority
The authority or its employee must have acted at least negligently or intentionally. This will always be assumed if the authority was informed (e.g., in writing or by email) that a decision was necessary and that failure to do so could result in loss of salary.
Damage caused
A claim for official liability also requires that specific damage has occurred. In cases of skilled immigration, this can particularly include financial losses, such as loss of salary, loss of job, or legal fees.
No self-fault
A claim for official liability against the immigration authorities also requires that the damage to the foreigner could not have been avoided. This is always assumed if the foreigner has sought legal advice and, for example, attempted to obtain a work permit or permission to change employers through a claim for failure to act.
1. Compensation from the immigration authorities
Many international skilled workers and foreign workers in Germany rely on swift and legally sound decisions from the immigration authorities. However, in practice , disproportionate delays or unlawful rejections repeatedly occur, which can cause significant financial and professional damage . In such cases, a claim for damages may be made against the immigration authorities.
A particularly practical problem arises when changing employers : Once a skilled worker has found a new position, the immigration authorities must grant permission to work (an exception is the EU Blue Card). However, if a decision is not made for months, this can lead to the foreigner losing their job . In many cases, immigration authorities also refuse work permits on untenable, sometimes arbitrary, or discriminatory grounds. Rejections based on unfounded concerns or xenophobic tendencies are often unlawful. If this results in financial damage, for example through job loss, affected foreigners can also claim compensation from the immigration authorities .
Another critical scenario arises if the residence permit is not renewed in a timely manner. Employers are legally obligated to ensure that their employees have a valid residence permit (Section 4a (5) of the Residence Act). If the immigration authorities delay the renewal or even unlawfully refuse it, this can lead to the termination of the employment contract – even though the employee would have continued to have a legal right to residency. In this case, too, a claim for damages may exist against the immigration authorities.
4. Prevent job loss by suing
If you're considering filing a claim for damages against the immigration authorities, you should always first try to force the authorities to issue a work permit through court . Foreign skilled workers who wish to work in Germany often rely on a work permit. However, long processing times at the immigration authorities often mean that applicants have to wait months for a decision . In such cases, those affected can defend themselves by filing a lawsuit for failure to act or obtaining an interim injunction in court to obtain a work permit more quickly.
Administrative procedure laws stipulate that authorities must decide within a reasonable period of time. According to Section 75 of the Administrative Court Act (VwGO), failure to act occurs if an authority fails to decide on an application within three months without sufficient reason. Immigration authorities repeatedly argue that they were unable to decide more quickly due to a lack of staff. However, it is established case law of the administrative courts that a lack of staff is the responsibility of the immigration authorities and does not constitute a justification for delayed processing (see, for example, Federal Constitutional Court, decision of January 16, 2017 – 1 BvR 2406/16 –, juris marginal no. 9 with further references; Higher Administrative Court of Berlin-Brandenburg, decision of July 27, 2017 – OVG 3 M 92.17).
For further information on actions for failure to act against the immigration authorities, please see our VISAGUARD article on actions for failure to act in naturalization cases .
5. Rights vis-à-vis the employer
If you are dismissed by your employer due to a missing or delayed work permit, you should immediately seek legal advice from a lawyer specializing in employment law. According to the prevailing opinion in case law and literature, foreign employees may not be dismissed if the lack of a work permit is not their fault. This is particularly the case if you applied for an extension or issuance of your work permit in a timely manner and the delay is due to the conduct of the immigration authorities . As long as there is a possibility that you will still be granted a work permit, there is no legitimate reason for dismissal. Dismissal would be inadmissible in such a case.
Only if the immigration authorities definitively and irrevocably deny your work permit can this potentially constitute grounds for termination. Until then, your employer is obligated to actively support you in obtaining the required permit and may not terminate your employment relationship.
One of our VISAGUARD lawyers will be happy to advise you on this topic and support you in any conflicts with the immigration authorities or your employer.
6. FAQ (official liability)
Can damages caused by official liability be claimed before the administrative courts?
No, in principle, civil courts have jurisdiction over actions for official liability (Article 34, Paragraph 3 of the Basic Law). Nevertheless, it can be helpful if an administrative court has determined prior to the civil proceedings that the authority acted unlawfully.
Can I suffer disadvantages as a result of the official liability lawsuit?
No, the authorities are bound by law and cannot arbitrarily treat you worse if you file a claim for official liability.
What is the most common breach of official duty?
The most common breach of official duty encountered in practice is the failure to provide a prompt and lawful decision. Therefore, foreign nationals can assert official liability even after the three-month period (Section 75 of the Administrative Court Code) has expired if they can prove damages.
7. Conclusion
Foreign skilled workers who wish to work in Germany depend on a prompt and lawful decision by the immigration authorities. If official delays or unlawful rejections result in job loss or loss of earnings, a claim for damages for breach of official duty may exist under certain circumstances. This applies in particular to the delayed issuance of residence permits, the incorrect rejection of a work permit, or the failure to process applications within the legally stipulated three-month period following a warning ( action for failure to act , Section 75 of the Administrative Court Code).
2. Have the court compensate you for your loss of wages
When foreigners claim damages from the immigration authorities, this is referred to as official liability . Official liability means that the immigration authorities are liable for damages that arise if a clerk processes an application incorrectly or exceeds the statutory three-month deadline (Section 75 of the Administrative Court Code). According to Section 839 of the German Civil Code (BGB) in conjunction with Article 34 of the Basic Law (GG), the state is then obligated to compensate for damages.
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List of Sources (Paywall)
[1] Detterbeck, Steffen, General Administrative Law, 13th edition 2015
A recent ruling from Stuttgart caused a stir. After a lengthy court case, the Stuttgart immigration authorities reached a settlement with a Brazilian nurse and reimbursed him €2,850 for lost earnings. The reason: Due to the official delay, the Brazilian nurse was unable to start work for weeks . The skilled worker's residence and work permit were issued late, resulting in a loss of earnings of nine weeks. Only after two court hearings – with different judges – did the authorities finally give in. The case shows once again that bureaucratic hurdles make it difficult for foreign skilled workers to access the German labor market. Companies and skilled workers should inform themselves early on about legal pitfalls and consider legal action if delays threaten.
3.2 Documentation of official liability damages
To successfully enforce claims for official liability, those affected should document the damage precisely (e.g., calculate the exact net salary lost). This should not be taken lightly, as claims for official liability must generally be asserted in civil court. In civil court, it must then be presented and proven that damage has occurred. Proof of damage is generally only possible if the exact amount of lost wages has been precisely documented. It is particularly important to retain all communication with the employer. One of our attorneys would be happy to advise you on the topic of documenting damages caused by official liability . We are experienced litigation lawyers and know what matters.