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Action for failure to act naturalization
All information from the immigration lawyer on the action for failure to act for naturalization in Berlin.
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what an action for failure to act is
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how long the action for failure to act takes and what it costs
how you can file an action for failure to act yourself
1. What is an action for failure to act?
2. Requirements for an action for failure to act
2.1. Submitted application
2.2. Expiry of the three-month period
2.3. No "sufficient reason"
3. Procedure of the action for failure to act
3.1. Filing the statement of claim
3.2. Confirmation of receipt of the complaint
3.3. Response of the immigration authorities
4. Duration and costs of an action for failure to act (naturalization)
5. Filing an action for failure to act yourself: What you should know
6. FAQ Action for Failure to Act Naturalization
7. Conclusion on the action for failure to act regarding naturalization
1. What is an action for failure to act?
It is common knowledge that migration authorities in Germany, particularly in large cities like Berlin, are overwhelmed and suffer from a significant staff shortage (see, for example, the rbb report “Waiting for the Berlin Immigration Office” from July 7, 2023 ). This leads to applications for residence permits, family reunification, or naturalization often taking a very long time to process – in some cases, several years . There are currently tens of thousands of unprocessed naturalization applications in Berlin. This backlog results not only from the change of responsibility of the State Office for Immigration (LEA) (see the VISAGUARD blog article on the change of responsibility at the LEA ), but also from the increasing number of applications caused by the 2024 reform of naturalization law.
Many people affected feel helpless in the face of lengthy waiting times and unclear communication from the authorities. In such cases, taking legal action against the authorities and seeking to expedite the process can be an option. Filing a lawsuit against the immigration office through an experienced immigration lawyer can help speed up the processing of your application and enforce your right to a prompt decision.
An action for failure to act is a special form of action for performance (§ 42 VwGO) that allows you to legally compel the authority to finally decide on your application. By law, an administrative authority must decide on applications such as for residence permits or naturalization within three months (see § 75 VwGO). If it fails to comply with this obligation, you can appeal to the administrative court. The court compels the authority to make a decision, and if successful, the authority also bears the costs of the proceedings (§ 154 VwGO).
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 German Administrative Court Procedure Act (VwGO) could be the right way to compel the authority to make a decision. However, an action for failure to act has certain requirements that you should be aware of.
2.1. Submitted application
The first requirement for an action for failure to act is that a formal application has been submitted to the competent authority (Section 81 Paragraph 1 of the Residence Act). You must be able to prove this, for example, with an acknowledgment of receipt , an automated email, or a record of the application process. Ideally, you should have also submitted all necessary documents. While a recent ruling by the Weimar Administrative Court does not strictly require all documents to be submitted with the application (Weimar Administrative Court, ruling of June 11, 2024, file number 1 K 135/24 We), it does increase the chances of success for your action.
2.2. Expiry of the three-month period
Another requirement is that three months must have passed since the application was submitted without the authority making a decision. Before this period expires, a lawsuit is inadmissible and will be dismissed by the court – in which case you, as the plaintiff, must bear the court costs. After the three months have elapsed, however, there are no further obstacles to filing an action for failure to act.
2.3. No "sufficient reason"
A frequently problematic issue is whether the authority can demonstrate a so-called " sufficient reason" for the delay (see Section 75 Sentence 2 of the German Code of Administrative Procedure). When such a reason exists is the subject of numerous court decisions. However, it is certain that staff shortages and excessive workloads within the authorities do not constitute sufficient reasons. For example, the Weimar Administrative Court ruled that the excessive workload of the immigration authorities since 2020/2021 does not constitute sufficient reasons within the meaning of Section 75 of the German Code of Administrative Procedure (Weimar Administrative Court, Decision of June 11, 2024, Case No. 1 K 135/24 We). The Federal Administrative Court has also held that a "temporary surge in applications" resulting from a change in the law is only recognized as sufficient reasons if the overload is not of long duration (Federal Constitutional Court, Decision of January 16, 2017 – 1 BvR 2406/16). However, in the case of the authorities being permanently overloaded, this has long ceased to be the case.
Possible sufficient reasons
In certain cases, however, courts may recognize a sufficient reason, for example:
If the applicant has failed to comply with his duty to cooperate.
If ongoing or enacted legislative reforms delay processing.
If required documents are missing.
Ultimately, the assessment of whether a reason is sufficient always depends on the individual case. Therefore, it is advisable to seek the support of an experienced immigration lawyer if you are unsure.
3. Procedure of the action for failure to act
Many people awaiting a decision on their naturalization application wonder about the process of filing an action for failure to act. Here we explain step by step how this process works and what you should pay attention to.
3.1. Filing 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 mail, directly to the competent court.
Through a lawyer who will prepare and file the lawsuit for you.
In person at the court's office, where you can even dictate the complaint.
3.2. Confirmation of receipt of the complaint
Approximately one week after filing, you will receive an acknowledgement of receipt from the court. This will inform you that your complaint has been received and will be served on the immigration office. The letter will also request that you pay court fees to continue the proceedings. Typically, the court will simultaneously ask the immigration office for an explanation of the allegations, i.e., why it has not yet made a decision on your application.
3.3. Response 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 a deadline of 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 authorities to cooperate : If the authorities are willing to cooperate and your case has a prospect of success, you may soon be offered a naturalization appointment. This often happens in order to expedite the process.
Resistance from the authorities : If the authorities are uncooperative, further written submissions will be exchanged between your lawyer and the authorities. In some cases, this will lead to an oral hearing in court.
Settlement : In most cases, a settlement is reached before a judgment is issued. This means that the parties agree on a solution, for example, by the authority promising a prompt decision on your naturalization application.
Court ruling : If no settlement is reached, the court will ultimately issue a ruling. This ruling can obligate the authority to make a decision.
In any case, an action for failure to act offers a way to expedite the process and assert your rights. If you have any questions about the procedure or need assistance with filing the action, we will gladly provide you 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 naturalization proceedings entails various costs. The most significant of these are court fees and attorney fees , if you choose to hire a lawyer.
Court fees are regulated by law in the Court Fees Act (GKG). For an action for failure to act in a naturalization case, the standard fee is €798 . If you are successful, these costs will be reimbursed by the opposing party (§ 154 VwGO). However, it can take some time before a judgment is issued and you receive this reimbursement. Attorney fees vary depending on the city and the lawyer. A lawyer specializing in immigration and citizenship law typically charges between €2,500 and €4,000 for an action for failure to act.
The duration of such proceedings is difficult to estimate in general terms, as it depends on the specific circumstances of each individual case. If all prerequisites are met and there is no sufficient reason for the delay, the proceedings can be concluded within one to two months . However, in problematic cases where additional evidence gathering or legal discussions are necessary, the proceedings can take six to twelve months or longer. The workload of the courts and the seriousness with which the judge handles 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 themselves, without hiring a lawyer. The answer is: Yes, that is possible. In the first instance before most German administrative courts, there is no requirement to be represented by a lawyer , which means you can file your action independently.
Filing of the lawsuit
If you wish to file an action for failure to act yourself, there are several ways to do so:
Written submission: You can submit your statement of claim in writing and send it by post to the competent administrative court.
Personal submission: You also have the option of going to the office of the Administrative Court and submitting your complaint there in person.
Dictating the complaint: If you find it difficult to write the complaint, you can even dictate it orally at the court clerk's office. An official will record your statements and prepare the complaint accordingly.
Risks of filing a lawsuit independently
Although it is generally possible to file an action for failure to act without a lawyer, you should be aware of the associated risks. 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 straightforward and all requirements are met, it may well be advisable to file the action yourself.
6. FAQ on the action for failure to act
Is excessive workload a sufficient reason for the delay?
No, case law and legal literature have clearly established that an agency's workload is not a sufficient reason to prevent an action for failure to act. Staff shortages and excessive workload are not legally recognized grounds for excuse.
Does the time limit for filing an action for failure to act begin upon application or only after all documents have been submitted?
The time limit for filing an action for failure to act pursuant to Section 75 of the German Administrative Court Procedure Act (VwGO) begins on the date of the application, not on the date of submission of the complete documentation. This was confirmed, among other things, in the decision of the Weimar Administrative Court of June 11, 2024, file number 1 K 135/24 We.
Will I get my money back if I win the inaction lawsuit?
Yes, if you win the action for failure to act, the authority will bear the costs of the proceedings (§ 154 VwGO). This means you will get your money back.
Is particular urgency a reason for a faster decision by the authority or court?
Yes, particular urgency can lead to a faster decision. Both the circumstances of the authority and the urgency from the plaintiff's perspective are taken into account when assessing whether there is sufficient cause. 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 Higher Administrative Court of Saxony of February 14, 2023 – 3 E 2/23.
7. Conclusion
Action for failure to act in naturalization proceedings (§ 75 VwGO): If the responsible authority fails to decide on your naturalization application for more than three months, despite its submission, you can file an action for failure to act with the administrative court. This applies even if not all documents were complete – the deadline begins with the submission of the application ( VG Weimar, June 11, 2024 – 1 K 135/24 We ). The submission of the application or the date of submission must be verifiable. The processing delay must not be due to a "sufficient reason" – a mere staff shortage is legally irrelevant. Court fees are approximately €798; legal representation is not mandatory, but advisable. If successful, the authority bears the costs (§ 154 VwGO).
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List of Sources (Paywall)
[1] NK-VwGO/Michael Brenner, 5th edition 2018, VwGO § 75 Rn. 1-88
[2] Schoch/Schneider/Porsch, 45th edition January 2024, VwGO § 75
[3] For the justification of naturalization delays due to staff shortages, see, among others, the Weimar Administrative Court, decision of 11 June 2024, case no. 1 K 135/24 We
[4] Regarding the point in time at which the three-month period of Section 75 of the Administrative Court Procedure Act begins, see Weimar Administrative Court, decision of 11 June 2024, file no. 1 K 135/24 We
[5] Regarding the obligation of authorities to justify delays, see Saxon Higher Administrative Court, decision of 14 February 2023 – 3 E 2/23 –, juris para. 9 with further references