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Action for failure to act (migration law)
All information from the specialist lawyer for migration law on actions for failure to act.
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About this Page
what an action for failure to act is
when the action for failure to act can be brought
Risks and opportunities Action for failure to act
Costs of the action for failure to act
Table of Contents
1. Action for failure to act VwGO
2. Action for failure to act regarding naturalization and permanent residence permit
3. Action for failure to act visa
4. Action for failure to act: templates and costs
5. FAQ Action for failure to act
6. Conclusion of the action for failure to act
1. Action for failure to act in immigration and visa law
All immigration authorities in Germany are massively overburdened . If a foreign authority or a German embassy delays a decision on an application for too long, a so-called action for failure to act can be filed under Section 75 of the Administrative Court Act (VwGO) . This action is not directed against a specific rejection, but rather against the failure to make a decision within a reasonable period of time. It is therefore an important tool for applicants under immigration law to enforce their rights.
An action for failure to act can be filed if three months have passed since the application was submitted and the competent authority has not yet made a decision without sufficient reason. If there are special reasons (in particular, urgency ), compliance with the three-month deadline is not necessary. It is important to note that there must be no objective reasons for the delay. However, it should be noted that overload or staff shortages do not constitute a justification for the authority's inaction (see case law on Section 75 of the Administrative Court Code ).
2. Action for failure to act in the case of naturalization and settlement permit
In practice, actions for failure to act are particularly popular in naturalization and settlement permit procedures . Especially in naturalization cases or applications for a settlement permit, the process can drag on for months or years . Often, there are no comprehensible reasons for this; rather, the authority is simply poorly organized and managed. If the authority fails to act despite complete documentation and repeated inquiries, an action for failure to act can be a useful means of exerting pressure. It signals to the authority and the court that the applicant is serious about their case and is no longer willing to be put off .
In naturalization cases, it is particularly common for authorities to wait for feedback from other agencies (e.g., the Office for the Protection of the Constitution) – sometimes without a specific timeframe . Here, too, the administrative court can examine, within the context of an action for failure to act, whether this is still considered a reasonable processing time or whether the authority is obligated to make a decision. Just because they are waiting for another authority does not mean that the process can simply be abandoned. The principle of acceleration ( Section 10, Paragraph 2 of the Administrative Procedure Act ) and the expeditious conduct of proceedings require continuous work on the case and not simply waiting.
3. Action for failure to act in the visa procedure
Embassies also repeatedly experience significant processing delays in visa matters – whether for family reunification , work visas , or student visas . In these cases, we recommend simply submitting your visa application in writing or by email , sending all documents (which would otherwise have to be presented at the appointment) to the embassy digitally or by mail. If no decision has been made after three months and no comprehensible reasons are available, an action for failure to act can also be filed against the diplomatic missions abroad or the Federal Foreign Office (Federal Republic of Germany).
The action for failure to act is particularly relevant for applications for visas for the purpose of joining a spouse or for skilled immigration. Since residence permit deadlines often play a role here, a delay can have serious consequences . Particularly in the area of labor migration, an extremely delayed visa issuance can lead to loss of salary due to failure to commence employment or even termination. The action for failure to act can lead to a faster visa issuance, allowing the applicant to still take up the position on time (see VISAGUARD's expert article on the so-called " time-based action ").
4. Template, procedure and costs of the action for failure to act
An application for action for failure to act is filed with the competent administrative court . Applicants must demonstrate when they filed their application, that the three-month deadline has expired, and that there is no objectively justified delay. A sample letter from a lawyer or professional assistance can help improve the chances of success and avoid mistakes.
The costs of an action for failure to act depend on the value in dispute, which usually results from the application whose decision is being pursued with the action for failure to act (e.g., visa or naturalization). Court fees and—if retained— attorney fees are usually charged. If the action is successful, the losing authority bears the costs unlessa settlement is reached . However, filing the action alone is often worthwhile: simply filing the action can expedite a decision by the authority, even before the court takes action.
5. FAQ on actions for failure to act
When can I file a claim for failure to act?
After three months without a decision, unless there is an objectively justified delay.
When is a delay objectively justified?
The courts recognize only a few justifications for an authority's inaction. Overload and capacity bottlenecks are not justifications, as these are based on organizational negligence. However, overload due to natural disasters (e.g., refugee migration due to the earthquake in Turkey in 2023) is recognized.
Which applications are particularly affected?
Naturalization, settlement permits and visa procedures are particularly affected by inaction procedures.
Do we have to wait three months for the action for failure to act?
No, in urgent cases (e.g. imminent job loss) there is no need to wait three months.
Is an action for failure to act expensive?
The costs vary; often, if the lawsuit is successful, there are no costs for the plaintiff because the authority pays (if no settlement is reached).
Do I need a lawyer to file a claim for failure to act?
Not necessarily, you can also file the action for failure to act yourself .
6. Conclusion on the action for failure to act (immigration law)
An action for failure to act is an effective legal tool for speeding up lengthy immigration law procedures. It protects applicants from authorities unreasonably delaying decisions – whether regarding naturalization, permanent residence permits, or visas. Anyone who relies on a decision should not hesitate to take action in a timely manner. VISAGUARD offers those affected by immigration law the opportunity to find suitable specialist lawyers who can assist them in enforcing their rights – including in the case of an action for failure to act. Get advice on when this step is appropriate and how you can effectively counter delaying tactics by the authorities.
List of Sources (Paywall)
[1] Christoph Sennekamp, Bergmann, Handbook of the European Union 6th edition 2022, action for failure to act
[2] Helge Sodan/Jan Ziekow in Sodan/Ziekow, Administrative Court Act | 5th edition 2018, § 75
[4] Oberhäuser, Migration Law in Advisory Practice (Nomos)