Actions seeking an order to grant naturalisation, review of discretion and interim judicial relief

A refusal of naturalisation can be reviewed by a court. We clarify with you which outcome to seek in court: your naturalisation, a fresh lawful decision or, exceptionally, an urgent court order. An action seeking an order requiring the authority to act (Verpflichtungsklage) is the central procedure for this purpose. It allows the naturalisation claim to be examined, but does not replace either missing requirements or the necessary evidence.

Anyone seeking naturalisation needs a positive decision from the competent authority. It is therefore generally not enough to seek only the annulment of the rejection decision. The application to the court must also seek the requested naturalisation or a fresh decision on it. § 42 paragraph 1 VwGO calls this type of action a Verpflichtungsklage. The refusal is challenged together with the request for a positive decision.

The practical significance can be seen in a rejection based on allegedly insufficient language skills. Even if that ground for refusal does not stand up to scrutiny, an order requiring naturalisation also depends on establishing whether the remaining requirements are met. The court does not award citizenship as compensation for an error by the authority. It examines whether there is an enforceable entitlement to the decision requested.

An action for failure to act can also take the form of a Verpflichtungsklage. Its special feature mainly concerns the ability to seek judicial protection despite the absence of a decision from the authority. However, the expiry of the waiting period does not in itself create an entitlement to naturalisation. According to the case law explained in the detailed article on actions for failure to act, seeking a decision alone, detached from all substantive requirements, is not an established general means of speeding up proceedings.

Whether an administrative objection must first be lodged or a court action must be brought directly depends in particular on the applicable state law. We identify the correct defendant public body and the competent administrative court. The notice of legal remedies, together with the complete decision and evidence of its receipt, is therefore among the most important documents. The details are explained in the article on service, deadlines and the correct legal remedy.

Parties are generally permitted to conduct their own proceedings before the administrative court. Representation by a lawyer is not universally mandatory there. This does not, however, mean that an informal letter without a clear request and without reference to the rejection is substantively sufficient. Mandatory representation in higher courts is a separate matter; the relevant provision is § 67 VwGO.

For naturalisation by entitlement under § 10 StAG, the decision is generally determined by law. If all requirements are met and no ground for exclusion applies, the authority may not refuse naturalisation on the basis of personal judgement or general workload. Disputes may concern, for example, identity, periods of residence, residence status, subsistence or the assessment of criminal matters.

The court is not restricted to the legal reasoning given in the decision. It must examine the requirements relevant to the entitlement being asserted. Successfully challenging the original ground for refusal can therefore represent significant progress without deciding the entire case. Conversely, another applicable legal basis may mean that the requested naturalisation can nevertheless be considered.

The distinction between unmet requirements and an incorrect assessment of existing evidence is essential. Language skills that are genuinely required but lacking cannot be replaced merely by criticising the reasoning. However, a particular language examination is not the only permissible evidence in every situation; suitable educational qualifications and statutory concessions must be considered separately. If suitable evidence was overlooked or a statutory exception was misunderstood, by contrast, the dispute concerns the application of the law to the documented facts. We prepare the documents and arguments to address the specific issue in dispute.

Under § 8 StAG, a distinction must be made between the statutory requirements and the remaining scope for discretion. Not every requirement can be waived at will. In particular, the hardship provision in paragraph 2 allows certain requirements to be waived only where its own conditions are met; it is not a general exemption from all naturalisation requirements.

Only within the scope allowed by law does the authority exercise discretion. Under § 114 VwGO, the court examines whether that discretion was exercised lawfully. It does not simply replace the authority's decision with the solution it considers more socially appropriate. In particular, we examine the following potential legal errors:

A consistent administrative practice can become relevant through the principle of equal treatment. However, it is not enough to say that another person was naturalised in an apparently similar situation. It is specifically the legally significant circumstances that must be comparable. A potentially unlawful favourable decision for someone else generally does not create an entitlement to repetition of that error.

The authority may supplement its discretionary considerations during the court proceedings. This does not give it unlimited scope to reconstruct every defective decision after the event. We examine the specific decision to establish whether the reasons have merely been supplemented or the decision has been substantially changed. We therefore also address the authority’s later submissions as part of our work on your claim.

§ 113 paragraph 5 VwGO distinguishes two outcomes. If the case is ready for a final decision and an entitlement to naturalisation exists, the court orders the authority to carry out that official act. If, however, the authority retains lawful discretion, the court may order a fresh decision in accordance with its legal assessment. This outcome is known as a judgment requiring a fresh decision (Bescheidungsurteil).

A judgment requiring a fresh decision provides binding judicial protection: the authority may not repeat the error identified by the court without correcting it. It does not, however, guarantee a positive decision. If several lawful outcomes remain possible, a further refusal may also be lawful. What matters is the operative part of the judgment and its decisive legal requirements, not merely the statement that the case was won.

Exceptionally, discretion may become so constrained that only naturalisation would be lawful. This is described as discretion being reduced to zero. A difficult personal situation or a single error in exercising discretion is not automatically sufficient. The further explanation on naturalisation by entitlement and discretionary naturalisation sets out the different starting points.

A naturalisation case is generally not solely a historical review of the day on which the rejection decision was issued. The relevant factual position is generally that at the time of the last oral hearing or decision in the court instance that determines the facts. Changes in the law may also have to be taken into account.

This can have favourable or unfavourable effects. Completing the required period of residence in the meantime or obtaining new evidence may help. Losing a job, a change in residence status or new developments in criminal matters may trigger additional examination. We discuss relevant changes during the proceedings with you and submit the necessary updated documents.

Transitional provisions must be examined separately. § 40a StAG concerns applications submitted on or before 23 August 2023 and the more favourable former rule on securing subsistence. It does not preserve all the naturalisation rules that applied at that time. The current general residence period under § 10 StAG is five years; its former special three-year rule has been abolished. An older application alone therefore does not justify applying every former concession.

The administrative court investigates the facts relevant to its decision of its own motion. The parties are involved in that process. The principle of investigation under § 86 VwGO does not mean that the court obtains all personal documents without assistance or always resolves gaps in the claimant's favour.

We connect each disputed ground for refusal with the decisive facts and supporting evidence. Employment income may require current payslips and contractual documents; periods of residence may require a complete chronology; health-related exceptions may require informative medical documents addressing the specific limitation. The connection to the statutory requirement matters, not simply the volume of documents submitted.

If facts establishing the entitlement remain unresolved despite the necessary investigation, this may count against the person seeking naturalisation. The extent to which cooperation can reasonably be expected from the individual remains relevant. We therefore also support the careful preparation and submission of your evidence during court proceedings.

Ordinary proceedings can take time. If serious disadvantages are threatened in the meantime, an application for an interim order under § 123 VwGO may be possible. Both a likely substantive entitlement and particular urgency must be substantiated to the required standard. These two requirements are called the entitlement supporting the interim order (Anordnungsanspruch) and the grounds for urgency (Anordnungsgrund).

A mere wish for a swift decision is not enough. We establish with you precisely what harm is imminent and when, why a later judgment could not adequately remedy it and why the requested order is necessary. We examine and organise the appropriate evidence for that purpose. A merely general assertion of a career opportunity or a burden that is not explained in detail does not readily establish the required urgency.

For naturalisation, the threshold is particularly high. German citizenship is not a provisional status that simply lapses if the case is later lost. An order requiring naturalisation therefore generally anticipates the outcome of the main proceedings. A high probability of success and serious, unreasonable disadvantages that cannot be remedied later are required. General family burdens or travel difficulties are not readily sufficient.

An application merely seeking to require the authority to process the matter immediately does not circumvent these requirements either. The same order rejects a request for a decision alone that is detached from examination of substantive entitlements. An application for interim relief therefore needs a legally sustainable objective; simply renaming the wish for faster processing does not create an additional entitlement.

The suspensive effect of a legal remedy can prevent an adverse administrative decision from being implemented prematurely. It does not, however, create a benefit that has previously been refused. If naturalisation is rejected, suspending that rejection does not confer German citizenship. An interim order is therefore generally the relevant form of relief for the positive request for naturalisation.

Separate adverse measures may need to be treated differently, such as a fee assessment or the withdrawal of naturalisation that has already taken place. Proceedings under § 80 VwGO may be relevant in those cases.

This applies in particular to a separate finding of deception under § 35a sentence 1 number 2 StAG. Administrative objections and court actions against this immediately enforceable finding expressly have no suspensive effect. An application under § 80 paragraph 5 VwGO may seek an order granting that effect. It pursues a different objective from the positive grant of naturalisation sought on an interim basis under § 123 VwGO. A decision under residence law also has its own requirements. A naturalisation action does not extend a residence permit and does not replace any necessary legal remedy against its refusal or against measures ending residence.

Even a judgment ordering naturalisation generally does not replace the statutory act by which citizenship is acquired. Under § 16 StAG, naturalisation takes effect when the certificate is handed over. Until then, winning the case must not be confused with citizenship having already been acquired.

If the judgment is unfavourable or only partly favourable, further assessment is governed by the rules on appeals and further legal remedies. A separate order in interim proceedings has different appeal deadlines from a judgment. Before taking additional procedural steps, we also clarify the litigation costs and possibilities for legal aid with you. The appropriate objective depends on the specific entitlement, the available evidence and the judicial protection actually needed.