Action for failure to act and the 3-month deadline: When it applies and what you need to know

Anyone submitting an application to a German immigration authority or other administrative authority often needs patience. But how long is long enough? And when can you take legal action against the authority's mere inaction? The so-called inaction lawsuit offers one way to exert pressure – but it is subject to clear conditions. One of these is the so-called three-month deadline . In this article, we explain what this means, which exceptions apply, and what you should definitely keep in mind.

What is an action for failure to act (3 months)?

In German administrative law, an action for failure to act is a special form of action pursuant to Section 75 of the Code of Administrative Court Procedure (VwGO) . It allows for the involvement of a court if an authority takes too long to decide on an application or objection. The goal is to obtain a court decision despite the authority's lack of response – for example, in applications for a residence permit, for an extension, or for the granting of a work permit.

When does the three-month period begin?

The most important requirement for an action for failure to act is that the authority must have failed to make a substantive decision for three months . This means:

• The deadline begins from the date of application (or from the date of objection).

• The application does not have to be complete – but the authority must then take action and request that it be submitted later (see Section 25 VwVfG).

• If the authority fails to make this request, the three-month period begins to run despite the incomplete application – namely at the time at which such a request should have been made if the processing time had been reasonable.

Important: The action is only admissible if no substantive decision has been made by the end of the oral hearing. Therefore, it is often sufficient to wait – as many proceedings take longer than three months anyway. Then the action "grows" into admissibility.

What counts as a factual decision?

Not every response from the authority prevents an action for failure to act. A so-called substantive decision must be present. These include:

• A genuine decision that decides on the application (including a rejection).

• A notice of objection (even if it is incorrect or incomplete).

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However , the following are not a factual decision :

• Status notifications (“Your application is being processed”)

• Interim notices

• Formal errors or incomplete decisions if no notice of appeal is issued.

Please note: If, for example, the authority mistakenly treats an objection as a new application and rejects it again, a substantive decision has been made – in which case, an action for failure to act is no longer possible. Instead, a new objection must be filed.

Are there any exceptions to the three-month period?

Yes – in exceptional cases, an action for failure to act may be admissible before the three-month period has expired . This applies if:

• The applicant is threatened with serious and unreasonable disadvantages by continuing to wait .

• A decision from the authorities is not expected before the end of the three months.

• A shorter processing period under special law applies (e.g. under the Residence Act).

  
  

Practical tip from VisaGuard:

If you're waiting for a decision from the immigration authorities and more than three months have passed without any action, filing a lawsuit for failure to act can help. In many cases, a letter from a lawyer is enough to get the case moving – but sometimes a visit to the administrative court is necessary. Before filing a lawsuit, you should definitely check (or have someone check) whether a substantive decision has actually not yet been made. You also need to ensure that the three-month deadline has been calculated correctly – this can be tricky, especially with incomplete applications or if interim decisions have been sent.