Case study: Action for failure to act regarding permanent residence permit
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A. Facts
What had happened?
In the present case, the applicant – a Turkish national and holder of an EU Blue Card – sought a settlement permit pursuant to Section 18c Paragraph 2 of the Residence Act . The application was submitted several times to the Berlin State Office for Immigration (LEA) using various communication channels (email, contact form, and postal mail). The application was submitted in full (i.e., with all required documents).
Despite repeated initiatives, there was no response from the authorities for several months. The statutory deadline for filing an action for failure to act (three months) under Section 75, Sentence 2 of the Administrative Court Code (VwGO ) had already expired by this time. The applicant's repeated attempts to contact the competent authority were unsuccessful. Given the impending expiration of her EU Blue Card and to secure her residence status, the applicant finally commissioned an independent VISAGUARD immigration lawyer to represent her interests.
B. Legal solution
How did the VISAGUARD lawyer resolve the case?
The attorney initially requested access to the files pursuant to Section 29 of the Administrative Procedure Act (VwVfG) . The subsequent electronic access to the files revealed that none of the client's application documents were in the official file. Apparently, technical or internal processing errors were the reason why the applications had not been registered by the authorities. However, the applicant was able to prove by submitting appropriate evidence (screenshots of transmission confirmations and postal delivery receipts) that the applications had indeed been properly submitted and received.
Despite the lawyer's written reminders of the multiple applications, the authorities continued to fail to respond. Since the client's legal residence was acutely jeopardized due to the impending expiration of her EU Blue Card, the lawyer felt compelled to seek legal assistance. He filed an action for failure to act with the Berlin Administrative Court pursuant to Section 75 of the Administrative Court Code (VwGO) and simultaneously requested an interim injunction pursuant to Section 123 of the Administrative Court Code (VwGO) for the issuance of a fictitious certificate. The Berlin Administrative Court granted both applications: The authority was ordered to issue the applicant a fictitious certificate and to decide on her application for a permanent residence permit. The application for a permanent residence permit was subsequently approved.
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C. Conclusion
What can we learn from this case?
The present case clearly illustrates that delays and procedural deficiencies on the part of the administration can significantly jeopardize a person's residency status, even when the substantive eligibility requirements are met. It is therefore crucial that applicants diligently fulfill their duty to cooperate and, in particular, maintain reliable documentation of their applications. In the event of a missing official file entry, complete proof of the application is essential to avoid procedural disadvantages—particularly in the context of a failure to act action.
If the receipt of the applications had not been documented in this case, the defendant (LEA) could have successfully argued that no application had been filed, which would have presented significant evidentiary challenges and resulted in a dismissal by the court. However, due to the carefully prepared evidence, the court was able to prove beyond doubt that the application had been received and filed, which led to the successful enforcement of the applicant's rights.
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