What is an action for failure to act against public authorities?
In order to understand what an action for failure to act against public authorities is, it is necessary to understand how such a form of action arises and what it is related to. In the case of naturalization (Einbürgerung) and settlement permits, many applicants have the problem that an action for failure to act is pending and that there is too little knowledge of the important processes involved. In general, it is a matter of legally achieving that a procedure is processed.
Where is the action for failure to act stipulated?
The action for failure to act is defined in Section 75 of the Administrative Court Rules (VwGO). The decisive factor here is that a procedure exists. Whenever you file an application in Germany, be it a building application, a naturalization application, an application for a settlement permit, the authority has the legal obligation to process this application according to § 75 VwGO.
As an example, an application for naturalization (Einbürgerung) or an application for a settlement permit is subject to a procedure. Now it is the case that the competent foreigner’s registration office (Ausländerbehörde) has not decided on the merits of the application without sufficient reason. In addition, the period in which the authority had to process the application has expired. In such a case, the applicant for naturalization (Einbürgerung) or settlement permit can file a so-called action for failure to act.
What does insufficient cause mean ?
What is a sufficient reason in an action for failure to act?
How do I proceed with the action for failure to act?
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Why actions for failure to act occur
There are different reasons why an action for failure to act occurs. The core problem is that the application submitted to the respective authority is not processed and there are delays and waiting times.
Why suing authorities is important
The background is that with a lawyer after 3 months you can speed up a decision because of the request made. First of all, it does not matter whether the decision for naturalization (Einbürgerung) or the settlement permit is positive, but whether there is a decision at all.
If the instrument of the action for failure to act did not exist, authorities would never be able to decide. It would have the effect of not moving up the instance ladder. One would then not get from the application procedure to the opposition procedure and not from the opposition procedure to the action procedure of the first instance and not from the first instance to the second instance.
As an applicant, you would always be dependent on the employee in the agency in step one. Even if the processor does not decide negatively, you would not get anywhere. This is why the legal instrument of the complaint against authorities for failure to act is so important.
Why do actions for failure to act against authorities occur?
Since the refugee crisis in 2015, the number of naturalization procedures and settlement permit procedures has increased, as has the number of people who have brought an action for failure to act against authorities because of the time it takes to process naturalizations or settlement permits. The authorities can no longer keep up with the processing of applications because there are so many cases that have to be processed in a short period of time.
In addition, we experience that there is the problem of staff shortage in authorities, it also applies to the foreigners authorities and immigration authorities. Due to the thin staffing level, it is difficult to make up for absences due to illness or vacations. Accordingly, the expected delays occur.
The procedure of an action for failure to act
An action for failure to act against authorities always has a specific procedure. The process is different from the normal course of lawsuit proceedings and has certain changes. However, the process of each is usually the same.
Action for failure to act is filed
Normally, legal proceedings in Germany follow a certain pattern. The processes are action, judgment, decision. In the case of an action for failure to act, the procedure is different. First, a complaint is filed, which ends up in the administrative court. The important thing here is that the form is respected. Action for failure to act must be filed in writing (with own signature) with the competent court. In addition, the statement of claim must be correct.
The statement of claim must contain the following things: the plaintiff, the defendant, the cause of action (the reason namely the non-processing of the application), facts or evidence for the substantiation. The request to the authority must be added to the application for a copy.
The complaint is sent and the authority gives its opinion
After the client, respectively the plaintiff or applicant for naturalization (Einbürgerung) or settlement permit, has paid the court fees, the administrative court sends the complaint to the opponent. In this case, this is the foreigner’s registration office (Ausländerbehörde) ‘ Registration Office or the Immigration Office. Now the authority is commenting on the accusation. From our experience, in such statements are usually the reasons: Overload, Ukraine crisis, Corona an.
Administrative court gives notice to authority
Since congestion, the Ukraine crisis, or Corona are not reasons to slow down an application process, the Administrative Court now directs the agency that there is no sufficient reason to slow down the process. The authority is given a new deadline by which it must have processed and decided on the application procedure.
Accused authority decides on the application
The authority now decides within the time limit on the application and whether it is positive or negative for the accuser. In principle, a new delay does not occur because the authority makes a decision. The proceedings are then discontinued as the cause of action has been removed.
Duration and costs of the action for failure to act
Generally speaking, you can file a complaint of failure to act against authorities three months after filing an application. In the end, the complete duration depends on different aspects.
Duration varies from court to court
The duration of the complete lawsuit strongly depends on the administrative court where the action for failure to act against the authorities was filed. There are very fast administrative courts that make decisions in a short time and administrative courts that proceed more slowly due to a high number of proceedings. At the Cottbus Administrative Court, for example, the duration goes circa. 1-2 months until a decision is made on the application.
The situation is different at the administrative courts in Frankfurt am Main, Stuttgart or Berlin. These courts are overloaded and there, until the authority really decides, the process can also take 4,5 or 6 months. Procedural times with all problematic authorities including complaints of inactivity against authorities 5- 10/11 months.
These 10 months don’t sound like much at first glance. However, it is already our experience that in many cities it takes 3-4 years to apply for naturalization (Einbürgerung) without a lawyer and without an action for failure to act. With a lawyer and an action for failure to act against the authorities, you save 1-2 years of this process.
How much are the costs and who pays them
An action for failure to act costs about 438 euros in court costs for the settlement permit. If the case is won, then these costs will be reimbursed. In addition, there are legal fees of about 500 euros.
In the case of an action for failure to act on a naturalization (Einbürgerung), the court costs are €780 and just under €1000 in legal fees. With us, these costs are included as a lump sum. As a law firm, we benefit if the case is won, as we can once again settle with the authority.
It’s usually law firm versus government agency and either one or the other wins in court. The one who wins always receives the entire costs from the loser of the case, i.e. court costs and attorney’s fees.
Since the prices are high with us, there are virtually no lawyer’s fees, we do not undercut the lawyer’s fees. With the lawyer it is always important that he does not undercut the fees, otherwise he will be in breach of professional law. For this reason, these costs are included in our services. We end up benefiting twice, because if we make a profit, we can also settle with the state.
Future of actions for failure to act
There are various reasons why there will be more and more actions for failure to act in the future and why one can also expect a longer period of time for the processing of applications for a naturalization (Einbürgerung) and a settlement permit. Various factors play a major role here.
Shortage of skilled workers cannot be remedied quickly
It cannot be assumed that the shortage of skilled workers and the staff shortage at public authorities will be solved in a short time. Measures have been taken by the authorities in this regard, but it will take several years before these work. The high number of proceedings with the tight staffing levels at public authorities indicate that the issue of complaints against public authorities for failure to act will become increasingly relevant and important in the future.
The number of applications will continue to increase
It is already the case that it takes 3 years to naturalization (Einbürgerung) without the help of a lawyer. Our forecast is that things will get worse in this regard in the future. The authorities are already having trouble keeping up with applications, and the coming year 2024 will bring an extremely high number of applications for naturalization (Einbürgerung) and settlement permits.
The people who came to Germany in 2015 in the wake of the refugee crisis bring with them the legal period of residence in 2024 that fits the application for naturalization (Einbürgerung). Accordingly, one can assume an extremely high number of applications.
Another reason is the new immigration law that is being planned. If this law goes into effect, our prediction is that many agencies will stop accepting applications altogether due to capacity constraints, and naturalization (Einbürgerung) will not be feasible without help from companies like Migrando under 4 years. For this reason, we recommend: The sooner you apply for naturalization (Einbürgerung), the better. Very long waiting times await you in the future.
Conclusion and summary
Conclusion
The action for failure to act is becoming increasingly important in naturalization and settlement permit applications. Our experience also shows that this condition will continue to increase. This makes it all the more important for anyone who wants to apply for naturalization (Einbürgerung) and a settlement permit to be aware of the action for failure to act.
Summary
As you can see, the issue of actions for failure to act against authorities is of great importance when applying for a naturalization (Einbürgerung) or settlement permit. Enclosed we have again summarized the most important points for you:
- The action for failure to act against authorities can be filed 3 months after filing the application for naturalization (Einbürgerung)
- The decisive factor is whether or not there was a sufficient reason for not processing the application
- Lack of staff and high number of applications is not a reason not to process your application
- Actions for failure to act have a different procedure than usual actions for failure to act
- In the future, naturalization (Einbürgerung) will not be feasible in under 4 years without an action for failure to act and without a lawyer.
- The action for failure to act usually ends with a new deadline for the authority and a decision on the naturalization (Einbürgerung)
- The court costs for the settlement permit are 438 euros and the lawyer’s fees are circa. 500 euro
- The court costs for a naturalization (Einbürgerung) are 780 euros and the lawyer’s fees are circa. 1000 euros.
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FAQ – The most important questions and answers on the complaint of failure to act against public authorities
Yes, you can file a lawsuit against the foreigner’s registration office (Ausländerbehörde) for inaction. This process will expedite your application, which has not yet been processed by the authority.
The action for failure to act is essential. It ensures that authorities process applications at a given time. Without an action for failure to act, you would not be able to move up the chain of appeals. For example, it would not be possible to move from application proceedings to opposition proceedings, and not from opposition proceedings to first instance action proceedings.
The number of actions for failure to act against authorities is increasing more and more because the authorities are overburdened with the processing of applications for naturalization (Einbürgerung) and settlement permits. The number of applications has increased a lot due to the refugee crisis in 2015 and the staff shortage at the authorities remains high.
The duration is highly dependent on the administrative court. One can expect a duration of 5- 10/11 months.
In the case of a settlement permit, the court costs for an action for failure to act amount to 438 euros and the lawyer’s fees to about 500 euros. In the case of naturalization (Einbürgerung), the court costs for an action for failure to act amount to 780 euros and the lawyer’s fees to around 1000 euros.
The action for failure to act on naturalization and settlement permits must be filed with the administrative court. The administrative court then decides on the case.
Generally speaking, you always assume success, otherwise you don’t sue at all. The crucial thing is to be able to prove that the authorities did not process the application for naturalization (Einbürgerung) because of unacceptable reasons (Corona, Ukraine war, lack of personnel).
The success is then that it comes over a renewed time limit imposed by the court to a processing of the naturalization application or settlement permit application and a decision is made.
