Action for Failure of Immigration to Act

You have submitted an application for a residence permit or it's extension or an entry visa to your immigration authority resp. consulate and nothing happens? 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, 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 with regard to 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 taken a decision on the merits within a reasonable period of time".

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 period of time.
• Finally, there are no sufficient reasons for the non-decision.

Following reasons for a non-decision can possibly justify a lack of action:

• Extent of the proceedings;
• Mass recourse to an authority;
• 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 making a decision 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 Immigration Law

Particularly in immigration law, the action for failure to act is an indispensable means of enforcing your rights. Immigration 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 politicians 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.

Successful examples of actions for failure to act in immigration law:

Visa for Spousal Reunification

Before a visa for subsequential family reunion to a spouse is issued by the competent foreign mission, the consent of the foreigners authorities is required. Due to the involvement of two authorities, and lack of use of electronic media, the decision usually takes several months. In particular, the foreigners authorities always take a long time before deciding on a possible consent. If all the necessary documents are available and no decision is made, it is possible to file a complaint with the Administrative Court after three months.

Residence Permit

An action for failure to act can also lead to obtaining a residence title or accelerate the procedure. If the authorities have all the documents and still have not received a decision after three months, an action for failure to act is a good way of ensuring that the application is finally decided.

In practice, it is not uncommon for approval to be granted shortly after the complaint has been filed and for the desired visa to be issued shortly thereafter. In these cases, the legal dispute is then declared settled by all parties involved and the court only decides on the costs. In this constellation, the embassy or the foreigners authority must then bear the entire costs of the legal dispute: court fees, our fees.

Overview of Costs for Immigration Cases in Court

Court fees are flat and mandatory. They cannot be negotiated! Lawyer's fees are governed by the Attorneys' Remuneration Act (RVG). The fees determined therein for representing your interests in court are the statutory minimum. In average, they are pretty fair. Yet, they assume that all is done in German. When you study this page and not its German version, it is evident that your German is a bit slim. Since we may negotiate more, I want to do this below when asking for the surcharge.

Let us briefly explain what the "procedural" and "hearing" fees are for. The procedural fee is for filing the complaint and fighting for your rights as long as it is outside a hearing. The hearing fee is, as the name already hints, is for any and all live hearings in court. This fee does not change when the court calls all in for an appointment to verbally discuss the case more than once. Rest assured, nobody is interested in having more than one hearing–when at all!

Cultural Remark

We recognize that some cultures prefer to avoid court / argue but seek harmony through compromise. This does not work in Germany with the authorities when they have denied an application! There is no longer a chance to discuss anything because the case is over – “GAME OVER”.

Maybe you fear negative consequences from appealing? Relax! Germans take it very sportingly. They are not allowed to treat your application negatively on purpose because you “dared” to appeal/contradict. It is a right in Germany to file an appeal–to get a second opinion from a higher authority. If the consulate loses the case, they will continue processing your application – as if nothing happened. Okay, the individual case decider shall be changed. If you lose the case, it will make it clearer what was wrong with your setup and how to remedy it in the next application.

How to hire us

Please hire us through our online assignment form, where you can also upload any documents you'd like to share with us now. After you complete the form, you will be taken to the payment page, and you'll also receive an email confirming the assignment and invoice, along with the power of attorney form. Please sign the power of attorney and return it to us.

We are flexible about how to get started. If you'd like to discuss your chances first, book an initial consultation. Don't ask us first whether you have any chances, because that is what the initial consultation is for. During this initial consultation, we will determine your chances at first glance. The initial consultation fee is an advance on your court representation. If we determine that it's not a good idea to go to court, we will consider these fees as a prepayment for a different approach. During the consultation, we will develop this new approach.

Book your initial consultation

Assign us for your complaint in court here for

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What to upload?

Please upload your documents through our online assignment form. As mentioned above, we need to learn what you have shared with immigration. Depending on your situation, we would like to have:

• a copy of your passport (the page with the personal details),
• a copy of your D visa, aka entry visa,
• a copy of your expired permit (both sides of the card and the green slip),
• the application forms and supporting details,
• any correspondence in the interim,
• anything else you might consider relevant.