Action for failure to act in the case of relocation and change of residence: What applies?

Mirko Vorreuter, LL.B.
35 minutes ago
4 min read

For many applicants, an action for failure to act under Section 75 of the German Administrative Court Procedure Act (VwGO) is a crucial tool for defending themselves against delays of months or even years at immigration authorities and naturalization offices. However, one aspect is frequently underestimated in practice: What happens to the deadline for an action for failure to act, or to an action already filed, if a move to the jurisdiction of another authority occurs during the ongoing proceedings (or the current inaction period)? It is precisely at this juncture between a change of jurisdiction and effective legal protection that significant legal uncertainties arise – sometimes with serious consequences for those affected.

Principle: Change of residence leads to new jurisdiction

A change of residence regularly results in a different authority becoming responsible for the administrative procedure (see Section 3 of the Administrative Procedure Act ). An exception applies only if this serves the simple and efficient conduct of the procedure while safeguarding the interests of all parties involved, and the now responsible authority agrees (Section 3, Paragraph 3 of the Administrative Procedure Act). In practice, however, this exception is almost never applied by immigration authorities. This immediately raises the question of whether and how ongoing legal proceedings against the originally defendant authority can be continued. What at first glance appears to be a purely formal problem proves in practice to be a significant obstacle to enforcing legitimate claims.

In principle, the Administrative Court Procedure Act (VwGO) provides for the possibility of replacing the defendant entity during ongoing proceedings (replacement of defendant, §§ 91 et seq. VwGO ). This is intended to prevent proceedings from becoming moot solely due to a change in jurisdiction . However, in administrative court practice, this replacement of defendants is not handled uniformly. It is often argued that the new authority must first be granted its own reasonable period for a decision . Consequently, the court proceedings should be suspended, and an amendment to the claim would not be "expedient." In other words, even if the original authority was inactive for a very long time, this inactivity should no longer play a procedural role once jurisdiction changes. According to some administrative courts, the change in jurisdiction thus constitutes a "sufficient reason" within the meaning of § 75 VwGO. For those affected, this represents a considerable risk. The delay already suffered becomes pointless, judicial review of the authority's practice is effectively terminated, and the proceedings essentially start from scratch.

Declaratory judgment action – high hurdles despite obvious delay

One option for those affected is to convert the proceedings into a so-called declaratory judgment action . The aim is to have the court declare that the authority's previous inaction was unlawful. While this does not usually lead to the action for failure to act being successful, the court will then, in most cases, order the defendant authority to pay the costs.

However, in practice this option often fails due to the issue of so-called " readiness for a decision ." Courts frequently argue that, due to incomplete official investigations—for example, outstanding security checks—the situation was not ready for a decision. Therefore, unlawful inaction could not be established.

This line of reasoning leads to a systemic problem: the less work the authority has done, the lower the chances of success for a subsequent declaratory judgment action. Inaction itself thus becomes a procedural shield for the administration . This is hardly acceptable to applicants – because the pending investigations are precisely an expression of the authority's inaction.

Declaratory judgment action in case of relocation – new subject of dispute, new risks

In some cases, attempts are made to obtain judicial clarification through a general declaratory judgment action . The aim is to establish that the authority's inaction was unlawful. However, the problem is that courts often treat this request as an entirely new subject of the dispute. Consequently, a formal amendment to the complaint becomes necessary, which in turn requires the court's approval. If this approval is denied, there is a risk of the complete loss of the existing legal protection. The original objective of the action for failure to act—namely, to have the authority's responsibility for delays judicially reviewed—is thus lost.

Conclusion: Action for failure to act in cases of change of residence and relocation

The action for failure to act following a relocation remains a legal risk with an uncertain precedent in administrative court practice . The fundamental principle underlying this practice is particularly concerning. A change of residence, often for professional, family, or economic reasons, effectively becomes a procedural risk . State inaction, however, remains without consequence once jurisdiction changes. This shifts the risk unilaterally to the detriment of the applicants. Those who take legal action against delays risk losing the legal protection they have already gained simply by moving. This creates a dangerous imbalance, especially in immigration law, which is characterized by mobility, job changes , and family circumstances.

From a migration law perspective, this development is highly problematic. The purpose of an action for failure to act is to compel the state to fulfill its obligation to make a decision. This purpose is undermined when authorities can effectively evade judicial review by changing jurisdictions. Effective legal protection must not fail simply because people change their place of residence within Germany . Mobility is a reality, especially in lengthy naturalization and residency procedures. If this circumstance leads to months of inaction remaining legally inconsequential, the balance between citizens and the administration is jeopardized.

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