Action for failure to act

If you have submitted a naturalisation application, you do not have to accept the absence of a decision from the authority indefinitely. Subject to certain requirements, an action for failure to act allows you to bring proceedings before the administrative court even though no decision has yet been issued. It can bring a stalled procedure under judicial review. Before bringing an action, we therefore assess the application, reasons for delay, eligibility and objective together; elapsed time alone does not determine success.

Normally, a rejected application is first challenged using the remedy provided by law. If no decision is made at all, the very decision on which this usual legal route depends is missing. § 75 VwGO prevents the administration from blocking access to judicial protection indefinitely simply by not deciding. Where its requirements are met, proceedings may be brought without waiting for the administrative procedure to conclude.

The name can, however, be misunderstood. The action is not directed personally against an employee and is not intended to punish the way they work. An authority that sends letters or requests further documents from time to time may still not have made a decision in the relevant sense. What matters is the outstanding substantive decision on the application, rather than a complete absence of any activity.

In naturalisation matters, the action will generally be an action seeking an order requiring the authority to act, known as a Verpflichtungsklage. Its aim is to secure naturalisation where legally owed or, where appropriate, a decision that complies with the court's interpretation of the law. Its distinctive feature is access to the court without a prior final decision from the authority. An action for failure to act is therefore considerably more than a court-mediated request for a progress update.

Where there is a statutory entitlement to naturalisation and the requirements have been conclusively established, the court can order the authority to grant naturalisation. Where the decision is discretionary, it is generally necessary to examine whether the authority must exercise its discretion lawfully and what scope for decision-making it retains. A judgment requiring a decision, known as a Bescheidungsurteil, then requires the authority to decide again or for the first time in accordance with the court's legal directions. The legal basis is § 113 paragraph 5 VwGO.

This is not the same as asking the authority to issue any decision at all, regardless of its legal basis. An action seeking only a decision, entirely detached from the substantive entitlement, raises legal questions about admissibility.

These questions have not been conclusively resolved in naturalisation disputes. We therefore do not present a claim seeking just any decision as a reliable way to accelerate matters regardless of your substantive entitlement. This does not affect the ordinary action seeking a decision through which a substantive right to the lawful exercise of discretion is pursued.

Defining the relief sought is therefore not a minor formality. When pursuing your citizenship claim, we substantiate that entitlement rather than merely seeking a faster reply. Conversely, a discretionary decision that remains open must not be presented as a guaranteed entitlement to a particular outcome. The differences between naturalisation by entitlement and discretionary naturalisation also affect the order a court may make.

The starting point is an application that has actually been submitted. The authority must be able to recognise that naturalisation is being requested and for whom. A non-binding enquiry about eligibility or registering for an advice appointment does not always suffice. We check the evidence of receipt, such as an acknowledgement or a documented transmission. Whether all documents are complete and whether an application exists are separate questions.

The assessment must therefore go beyond a date on the calendar. It also matters which enquiries have been made and answered, what checks are necessary and whether the applicant has themselves asked for the procedure to be put on hold. The detailed article on the application, waiting period and sufficient reason for delay explains these requirements, including typical distinctions.

A complex set of circumstances may require additional enquiries. Examples include contradictory identity documents or necessary information from other bodies. If requested evidence relevant to the decision is missing, outstanding cooperation may also be a factor. It is not enough, however, simply to claim that the application is “incomplete” without explaining which document is missing. The authority must also actually pursue the necessary enquiries.

Statutory grounds for suspension need to be distinguished in particular. Where criminal investigation proceedings are pending, § 12a paragraph 3 StAG generally requires the naturalisation decision to be suspended until the proceedings have concluded or, in the event of a conviction, until it becomes final. An action cannot bypass this statutory obstacle simply because a long time has passed. Whether the criminal proceedings are still pending and whether the ground for suspension continues to exist can, however, still be reviewed.

By contrast, an authority facing a persistent excessive workload cannot simply rely on its normal waiting list. Courts distinguish temporary exceptional pressures from structural shortcomings. What matters is not an abstract staffing figure, but an explanation of why a decision has not yet been possible in the particular case. Even where the authority faces internal difficulties, the applicant's interest in a timely decision must still be taken into account.

An action brings not only the delay but also the naturalisation claim before the court. The personal requirements should therefore be assessed as reliably as possible. Unresolved questions concerning identity, residence status, subsistence or statutory grounds for exclusion may become decisive in the proceedings. A long processing time does not replace missing evidence or remedy a failure to meet a substantive requirement for entitlement.

The current situation matters here. Losing a job in the meantime or having since been granted a settlement permit may change the assessment. Equally, evidence of language proficiency may have been obtained during the wait. Documents from the month in which the application was originally submitted are not necessarily sufficient to establish the later position. We therefore compare the authority’s file with your current circumstances.

Changes in the law must also be taken into account. Applying early does not automatically preserve all the old rules. For example, § 40a StAG concerns only the more favourable former subsistence rule for applications submitted by 23 August 2023. It does not preserve earlier reductions in the required residence period across the board. Anyone wishing to rely on earlier law needs a specifically applicable transitional provision, not merely an old acknowledgement of receipt.

The documents particularly needed to prepare an action are:

• the application and proof of its receipt;

• requests for further documents from the authority and the replies to them;

• evidence already submitted;

• the latest information on the progress of the application.

A brief chronology makes it easier to distinguish long periods without any apparent processing from periods when documents were actually being obtained or outstanding questions resolved. Complete letters are more informative than isolated screenshots without a date or context.

We also document the requirements you must meet today. Depending on the issue in dispute, these may include current income documents, evidence of residence rights or explanations of efforts to obtain identity documents. There is no need to submit every document ever collected in an unstructured bundle. What matters is which fact each document proves and whether inconsistencies between different statements can be explained.

A prior request for a progress update is not an additional general statutory condition for the admissibility of an action for failure to act. We use such an enquiry where it can clarify previously unknown obstacles to a decision. The same applies to inspecting the file. Both help inform the decision as to whether an action is already appropriate and which arguments support it. How to put together a useful enquiry is explained in the article on processing times and requests for progress updates.

Where court action is agreed, we file the claim with the competent administrative court. It must identify the parties and the relief sought with sufficient clarity. It must be filed in accordance with the statutory requirements as to form; an ordinary email to the court is generally unsuitable. Lawyers are generally required to file electronically. The relevant provisions are §§ 81 and 82 VwGO and the rules governing electronic communication in legal proceedings.

The court forwards the claim to the other side and usually requests the administrative file. The authority is given an opportunity to explain the progress of the application and any reasons for the delay. The court may request further information or evidence. A court case number therefore initially means that proceedings are pending; it says nothing yet about success or a binding date for a decision.

Depending on the circumstances, the court may set a deadline and stay proceedings, make further enquiries or hold an oral hearing. Not every case ends with a judgment following a hearing. The authority may also satisfy the claim while proceedings are ongoing. The precise sequence and possible outcomes are explained in Court procedure, possible decisions and limits.

Naturalisation granted after proceedings have begun may resolve the substantive dispute. We then clarify with you how to conclude the proceedings and who bears the costs. A declaration that the dispute has been resolved is not the same as withdrawing the action. The two statements can have different procedural consequences. As regards costs, both the general rule on withdrawal and the special rule for failure-to-act proceedings must be considered. Even after a positive development, we therefore assess what statement to make to the court and its cost consequences.

A rejection during proceedings does not automatically render the dispute over naturalisation moot. Often, the claim seeking an order to grant naturalisation is continued, incorporating the new decision. Whether an administrative objection is also necessary depends, however, on the stage of the proceedings and the requirements of § 75 VwGO. In particular, a court-ordered stay with a deadline for a decision may be relevant to this question.

An action for failure to act may give rise to court fees and legal fees. As a rule, the unsuccessful party bears the costs of the proceedings. Special cost rules apply if the dispute is concluded in another way. § 161 paragraph 3 VwGO contains a rule favouring the claimant in failure-to-act cases if they were already entitled to expect a decision before bringing the action. This does not, however, amount to a general costs guarantee for every action brought after three months.

A reliable assessment of costs takes account of the relief sought, the number of people concerned, the potential value in dispute and the likely course of the proceedings. The value in dispute is not the amount payable to the court, but a figure used to calculate fees. Any claim that the value is automatically halved for every action described as seeking only a decision would also be too sweeping; what matters is the substantive relief sought.

If your financial means are limited, we discuss whether legal aid may be available. In addition to personal and financial requirements, it requires sufficient prospects of success and must not be confused with a general exemption from costs. The further article on litigation costs and legal aid discusses the distinctions and possible remaining liabilities.

An action for failure to act guarantees neither a particular amount of time saved nor a German passport by a desired date. Courts also need time to establish the facts and decide. In an acute, exceptional situation of need, interim judicial protection may additionally be considered; its requirements are separate and must be clearly distinguished from the mere waiting period for bringing an action. Wanting an earlier decision alone does not establish the necessary urgency.

Even a judgment ordering the authority to grant naturalisation does not confer citizenship directly. The authority must implement the court's order, and under § 16 StAG, naturalisation takes effect when the certificate is handed over. The subsequent issue of an identity card or passport is also a separate process. We explain these further steps so you can take them into account in your personal plans.

The value of the action lies in binding judicial scrutiny of the outstanding naturalisation claim. Where time pressure and difficult substantive questions coincide, we assess both particularly carefully when preparing the claim. A documented application, a clear procedural history and a realistic assessment of the requirements make it possible to reach an informed decision on whether going to court is appropriate at the present time.