What is Lawsuit for failure of act?
Lawsuit for failure of act is a legal instrument that enables you to take action against the inaction of a public authority. According to § 75 VwGO (Administrative Court Code), this action can be brought if an authority fails to decide on your application or objection within the deadline without sufficient reason. The aim of this legal remedy is to force the authority to process and make a decision.
The Lawsuit for failure of act is particularly relevant if your application to Naturalization or Settlement permit is delayed.
When can you submit an Lawsuit for failure of act ?
You can submit an Lawsuit for failure of act appeal to the administrative court following inaction by Foreigners' office if the authority hasnot decided on your application for Naturalization or Settlement permit within the deadline (within 3 months). The decisive factor for the success of your Lawsuit for failure of act is that there is no sufficient reason for the delay in processing your application.
What are not sufficient reasons for a delay?
If the authority refers to a lack of staff or time problems, this is generally not a sufficient reason and will not be accepted by the administrative court as justification. These are delays that are the responsibility of the authority. This means that you can take action against the authority with your Lawsuit for failure of act .
What are sufficient reasons for a delay?
A sufficient reason is when Foreigners' office can prove that the reason for the delay lies with you and not with the authority itself. Reasons may include
- missing documents,
- a particularly complex situation or
- be the involvement of third parties, for example security authorities.
In such a case, the administrative court suspends the action until a period specified by the court has elapsed.
Why are there long waiting times?
The number of applications to Naturalization or Settlement permit has been consistently high since 2015. As many authorities have problems due to staff shortages, it is difficult to cope with absences due to illness or vacations.
This means that a large number of orders are processed by a comparatively small number of employees.
The Lawsuit for failure of act process: step by step
Before you file an Lawsuit for failure of act with the competent administrative court, check whether you meet the following requirements:
- Wait for deadlines: Make sure that the statutory waiting period of three months has elapsed since you submitted your application to Naturalization or Settlement permit .
- Communication with the authority: Before you file a complaint, you should make one last written attempt to ask the authority to process the complaint.
- Obtain legal advice: A lawyer can help you assess the chances of success of your claim and take the right steps.
- Completeness of your application: Check once again whether you have really submitted your application for Naturalization or Settlement permit in full.
- Collecting evidence: You should collect evidence of any communication with the authority, including acknowledgements of receipt and any follow up queries. Collect any correspondence that addresses the status of your application and proves that the permitted processing time has been exceeded. A copy of your application on Naturalization or Settlement permit is also helpful.
The Lawsuit for failure of act must be submitted in writing and in the prescribed form. This so-called statement of claim must contain the following information:
- the plaintiff (you),
- the defendant (the Foreigners' office),
- the cause of action (the reason for the action, i.e. the failure to process your application) and
- Explanation of the facts with evidence.
Proof of receipt of your application to Naturalization or Settlement permit and the unjustified delay of your application must be attached as a copy to the statement of claim. The claim must be submitted to the administrative court that has jurisdiction for your place of residence.
A lawyer who specializes in Immigration law can help you meet all the formal requirements.
As soon as the claimant has paid the court costs to the administrative court, the court works on the claim and asks the authority to make a statement. Payment of the court costs can be made as a one-off payment or in installments.
What happens if Lawsuit for failure of act is successful?
If your Lawsuit for failure of act is successful, Foreigners' office will now be obliged by the administrative court to process your application within a set period and make a decision.
If all requirements are met and there are no other reasons for rejection, your Naturalization or Settlement permit can beapproved immediately.
What should I do if the Lawsuit for failure of act is rejected?
A rejection from Lawsuit for failure of act can be disheartening, but there are other steps you can take:
- Understand the reasons for the rejection: It is important to carefully analyze the court's reasoning. Formal errors or missing documents are often the reason for a rejection.
- Correction of the application for Naturalization or Settlement permit: Based on the instructions of the court, you can correct and resubmit your application.
- Lodge an appeal: If you are of the opinion that the court's decision is not justified, you can lodge an appeal. However, this should always be done in consultation with a lawyer who specializes in migration law.
- Check alternative legal steps: There may be other legal actions that are appropriate in your particular case. A lawyer can also help you here.
How long does a Lawsuit for failure of act take?
The duration of a Lawsuit for failure of act can vary, but it typically takes a few weeks to months from filing the claim to the court's decision. The exact duration depends on the workload of the competent court and the complexity of your case.
What are the costs of Lawsuit for failure of act?
The costs for a Lawsuit for failure of act differ depending on whether you have applied for a Naturalization or a Settlement permit . The following must be paid:
- Court costs: These are higher if you have applied for Naturalization (€798) and lower if you have applied for Settlement permit (€483). This is because the procedure for Naturalization is more time-consuming. Please note that these costs relate to one person and are higher if you are also suing on behalf of a spouse or children.
- Legal fees: These are only incurred if you have hired a lawyer and vary.
- Possible additional costs: These may be incurred for the necessary documents, copies and possibly required translations.
Who pays the court costs?
If the Lawsuit for failure of act is justified, i.e. the authority was demonstrably inactive without sufficient reason, the authority must generally bear all costs. This applies regardless of the actual decision on the application.
If the Lawsuit for failure of act is rejected, the claimant must pay the costs incurred.
There is an important special feature if the proceedings are settled because the authority makes a decision during the legal proceedings. In this case, the following applies: If the plaintiff could expect a decision on their application when filing the lawsuit, the authority bears the costs.
If the authority had a sufficient reason for not issuing a decision and this reason was known or should have been known to the plaintiff, the burden of costs may lie with the plaintiff. This is then decided by the court.
FAQ - Frequently asked questions about Lawsuit for failure of act
An Lawsuit for failure of act can be very useful if you have met all the requirements for your application to Naturalization or Settlement permit and the authority has not yet responded after 3 months. The Lawsuit for failure of act can speed up the process and ensure that your rights are safeguarded.
The duration of a Lawsuit for failure of act can vary, but it typically takes a few weeks to months from filing the claim to the court's decision. The exact duration depends on the workload of the competent court and the complexity of your case.
The costs vary depending on the administrative court. A Lawsuit for failure of act for the Naturalization usually costs €798 and a Lawsuit for failure of act for the Settlement permit costs €483. Since naturalizations are more complex procedures, the costs are higher in this case. The total costs also depend on whether you hire a lawyer or not.
In principle, the "loser" pays the costs. If Foreigners' office loses the case, the authority pays the costs for Lawsuit for failure of act. However, if the administrative court rules in favor of Foreigners' office , you will have to pay the costs yourself.
