Action for Failure of Immigration to Act in Naturalization Matters
You have applied for your naturalization and nothing happens? Nothing happens for weeks? Nothing happens for months? You cannot see any factual reason why your application is not processed? If you can answer "yes" to all these questions, then you are not alone. Numerous applications are often only decided after months. There are even cases where nothing happens for years. In such cases, the only way to force the immigration to act is to file a so-called "action for failure to act", aka Untätigkeitsklage.
What is an Action for Failure to Act?
An action for failure to act is a specific form of an action for obligation. It is possible both in administrative law (§75 VwGO). In administrative law, to which citizenship law belongs, an action for failure to act is usually possible after three months. The time limits may also differ in individual cases, e.g. if a longer wait is unreasonable due to special circumstances.
This type of action is an action to enforce obligations, i.e. the claim is aimed at enforcing your request. The special feature of this type of action is that it is admissible even though no decision has yet been made on the application. In addition, there are special features concerning the cost risk and the allocation of costs.
The Requirements for an Action for Failure to Act
An action for failure to act is always admissible if you have filed an application or raised an appeal and the authority has "without sufficient reason not decided on the merits within a reasonable period".
This means that an action for failure to act can be considered after three months at the earliest. In certain individual cases, it may also be unreasonable to wait three months, so that an action for failure to act may then be considered before the three months have expired.
- An application or an appeal has been submitted.
- Factual non-decision,
- The relevant authority must have failed to decide on the above-mentioned application within a reasonable time – three months.
- Finally, there are no sufficient reasons for the non-decision.
The following reasons for a non-decision can possibly justify a lack of action:
- Extent of the proceedings;
- Mass recourse to an authority;
- The difficulty of the matter;
- Required documents are missing.
- Double-checking vital records in rural areas where the documentation is typically not reliably secured. We are thinking of marriages or births.
In these cases, you will lose an action for failure to act.
No sufficient grounds for a failure to act include:
- permanent understaffing of the authorities;
- shortages due to illness.
It is important to know that the application must be complete before a decision is made! If your application is incomplete, the authority must ask you to submit the required documents (§25 VwVfG). If the authority has informed you that certain documents are still required, there is sufficient reason for refraining from further processing and therefore also from deciding until these documents have been submitted.
If, however, no request for the submission of required documents has been issued, the time limit starts to run from the point in time at which the corresponding request by the authority should have been issued if the processing time had been reasonable.
The Action for Failure to Act in Naturalization Law
Particularly in naturalization law, the action for failure to act is an indispensable means of enforcing your rights. Naturalization is usually completely overloaded and understaffed. Applications are usually decided only after months. However, permanent understaffing is not a sufficient reason for such delayed decisions. If there is permanent understaffing, it is the responsibility of the government to remedy the situation. Consequently, this reason must not be at the expense of the applicants. With this lawsuit, we are setting the ball rolling for politicians to ensure that the authorities are staffed to a higher degree.
Intercultural Remarks
Some nationalities consider going to court as the best chance to lose one's face – a total disgrace. This will surely be true in your culture. However this may be, Germans take this sportly! It's placing a bet where you can either win or lose. If you lose, you need not fear that an official will take revenge or deny your application just because you "dared" to appeal.
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