What is a Legal Action for Failure to Act?
The legal action for “failure to act” according to § 75 VwGO is an action before the administrative court and represents a special form of legal action for breach of duty. It is true that the administration is already fundamentally obliged to decide on applications quickly and in good time. However, if this obligation is not fulfilled, the legal action for failure to act can be used to force the respective authority to take action within a period of time specified by the court.
Particularly in immigration law and resident permits, the waiting periods until a decision is made by the competent authority are often very long. This is often due to a general understaffing. In such cases, the action for failure to act can provide a remedy and bring about a quick decision. Such a move can speed up your visa / residence permit application. It is admissible if an application for an administrative act to be taken has not been decided on within an objectively reasonable time. The delay must also be without “sufficient reason”. As for what characterises an “objectively reasonable time” and a “sufficient reason” will vary between cases.
The Conditions for a Legal Action for Failure to Act
Request of the Plaintiff
Before you can bring a legal action for failure to act, you must either have lodged an appeal or filed a request for an administrative act. A residence permit is an administrative act. If, for example, you have submitted an application for a visa to the competent German mission abroad in your home country or for a residence permit under the German Residence Act to the competent immigration authorities, this requirement is met. In many cases, the legal action for failure to act is filed with the Federal Office for Migration and Refugees (BAMF) in the case of an application for asylum.
No Objective Decision within a Reasonable Period of Time
A legal action for failure to act can only be considered if no decision has been taken within a reasonable period of time on the objection or the request for an administrative act. This means that no decision on your application may have been taken yet. In addition, the authority must have been granted a reasonable period of time to process your application.
In principle, the reasonable period is three months from the date of the application to the authority (§ 75 p. 2 VwGO). In exceptional cases, if a shorter period is required due to special circumstances, an action for failure to act can be filed before the expiry of three months. Such special circumstances may be assumed if the person concerned is otherwise threatened with serious and possibly irreparable disadvantages, for example, if he or she is in urgent need of assistance.
In asylum law, too, an action for failure to act can be filed after three months from the date of application. It is true that § 24 paragraph 4 AsylG speaks of a six-month period. However, this only specifies the point in time from which the applicant is entitled to be informed about the expected date of the decision on their asylum application. (see VG Munich, Urt. v. 8.2.2016 – M 24 K 15.31419; see VG Osnabrück, Urt. v. 14.10.2015 – 5 A 390/15) It should be noted, however, that some courts require an application for information to be submitted to the BAMF in accordance with § 24 Para. 4 AsylG prior to filing a complaint (e.g. VG Regensburg, Urt. v. 6.7.2015 – 1 K 15.31185).
Non-decision without Sufficient Reason
It is also presupposed that the authority remains inactive without sufficient reason. Reasonable grounds may be, for example, the scope of the authorities or difficulties in clarifying all the facts of the case. In addition, if the documents required for the application are missing, this is generally sufficient reason. In this case, however, the authority must ensure that the applicant submits the relevant documents. If the authority does not comply with this obligation, the time limit begins to run at the point in time at which the authority should have stopped for subsequent submission after a reasonable time for processing.
Understaffing or inability to process the workload due to organizational reasons by the authority, is not considered sufficient reason. This is because it is the responsibility of the authority to ensure that the appropriate measures are taken to enable processing within a reasonable period of time.
If the delay in processing is based on a sufficient reason, the court suspends the proceedings until the expiry of a deadline set by the court (§ 75 p. 3 VwGO).
Who Bears the Costs of the Failure to Act Legal Dispute?
In order to protect the plaintiff from the costs of the lawsuit in the event of a lawfully filed action for failure to act, there is a special regulation on the bearing of costs. If the plaintiff could have expected a decision on his application before the action was filed, the respective authority must bear the costs of the legal dispute in accordance with § 161 (3) VwGO. This applies both in the case of a decision with the content requested by the plaintiff and in the case of a negative decision by the authority (BVerwG, decision of 23.7.1991 – 3 C 56/90, NVwZ 1991, 1181). If, after the legal action has been brought, a decision is taken which should have been taken earlier, the case can be declared closed by the plaintiff and the authority must pay the costs.
However, the authority does not have to bear the costs if there was sufficient reason for the non-decision and the plaintiff knew or should have known of this reason (BVerwG, decision of 23.7.1991 – 3 C 56/90, NVwZ 1991, 1181). In addition, the plaintiff must in principle bear the costs if they bring the legal action prematurely. Before filing a suit, it should therefore be carefully examined whether the filing for failure to act is advisable in your specific case or whether the delay in processing is recognizably due to a sufficient reason.
Legal Representation in Immigration Law
The attorneys at Schlun & Elseven will be happy to assist you with their expertise and many years of experience in matters of immigration and asylum law. We offer you personal advice and help you to obtain a decision from the competent authority on your application for a residence permit as quickly as possible. Whether this is to be done out of court or in court by means of the action for failure to act must be decided based on your personal case.
Contact our lawyers to speed up your visa application! Find out if you should take a case for failure to act. As our client, you can take advantage of our support nationwide with offices in Aachen, Cologne and Düsseldorf as well as conference rooms in Berlin, Hamburg, Munich, Stuttgart and Frankfurt. In addition, we offer our services in German and English for smooth communication with our clients. We can also be reached through video conferencing, emails and by phone Contact us today by using our contact details, which are located below this article.