When may the authority take longer to act in an action for failure to act?

If an immigration authority remains inactive for too long – for example, with a visa application or a residence permit application – applicants are generally entitled to file a so-called action for failure to act under Section 75 of the Administrative Court Code (VwGO) . However, not every delay is inadmissible. Under certain circumstances, authorities can cite a "sufficient reason" that justifies an extension of the decision deadline. We explain here when this is permissible and when it is not.

The three-month deadline – and what happens afterward

According to Section 75, Sentence 2 of the Administrative Court Act (VwGO), a claim for failure to act may generally be filed after three months if the authority has not decided on the application by that time. After this period, the claim for failure to act is admissible even without the conclusion of preliminary proceedings (objection) . However, this does not mean that the claim is always immediately successful. The court first examines whether the formal requirements for a substantive decision are met (admissibility requirements).

If the action is admissible and not manifestly unfounded, the court will examine whether there is sufficient reason for the authority's inaction. Only then may the court suspend the proceedings and grant the authority more time. This suspension is issued by a formal order and contains a specific deadline by which the authority must make a decision. The court may not simply suspend proceedings "until the authority makes its decision," but must set a fixed deadline, which can also be extended multiple times – but only if the "sufficient reason" continues to exist.

What is a “sufficient reason”?

A sufficient reason within the meaning of Section 75 of the Administrative Court Code (VwGO) is more than a mere allegation of overload. The reason must be objectively comprehensible, consistent with the legal system, and proportionate in light of fundamental rights.

Sufficient reasons may be:

• Particular difficulty in determining the facts, e.g., in the case of complex or unclear facts

• Individual case-related overload due to temporary circumstances, such as sudden, non-compensable staff shortages

• Pendency of a preliminary proceeding, if regulated by special law

• Consent of the applicant and, if applicable, other parties involved to the suspension

Insufficient reasons are:

• General overload of the authority or increasing number of cases

• Illness, vacation or lack of replacement of employees

• Waiting for expected legislative changes

• Lack of internal instructions or administrative guidelines

• Refusal to deal with the matter with reference to an allegedly inadmissible application

• Missing files if the authority failed to make copies

Particularly in immigration law, it is often observed that authorities cite alleged workload overload. Case law makes it clear that organizational deficiencies do not justify inaction. A functioning administration must make decisions within a reasonable timeframe, even under heavy workloads – or organize its staff accordingly.

Practical example: What does this mean for applicants?

For example, someone who has been waiting for a decision on a residence permit application for four months and has not received a response can file a lawsuit for failure to act . If the authority fails to process the application promptly, the administrative court can be involved. If there are objective reasons – for example, because information from abroad that the authority requested in a timely manner is missing – the procedure can be suspended once . However, simply being unable to act due to staffing shortages is not enough. In these cases, there is a clear legal right to a decision , which those affected can enforce.

Conclusion: Inactivity is not a permanent state

An action for failure to act is an important tool against administrative delays – especially in immigration law, where time is often of the essence. Authorities may only exceed the three-month deadline in very exceptional cases . Applicants should seek legal advice in the event of longer delays and should not hesitate to file a lawsuit. VISAGUARD will be happy to connect you with competent specialist lawyers who can represent you in an action for failure to act.