Aktualisiert am:
Administrative Court of Gießen, Decision from 18.04.2024, Case No.: 4 K 2799/23.Gl
It is becoming increasingly common for the naturalization process for a foreign national to take up to a year. This is often unlawful and results in the foreigner being hindered in further integration. For example, it is significantly more difficult for foreigners to obtain loans, rental agreements, or other contracts. Therefore, it is often crucial to be naturalized as quickly as possible.
If the Foreigners’ Registration Office has still not responded after three months, there is the option to apply pressure by filing an action for failure to act in court. But who bears the cost burden of such a lawsuit for failure to act? In most cases, the lawsuit becomes moot because the Foreigners’ Registration Office fulfills its obligation during the proceedings and naturalizes the foreign national. In such cases, the lawsuit is declared resolved by both the foreigner and the Foreigners’ Registration Office. In many cases, the Foreigners’ Registration Office then also agrees to bear the costs. But what happens if the Foreigners’ Registration Office refuses to cover the costs? In such cases, the court decides on cost responsibility. The following principles apply:
If the main matter in a lawsuit for failure to act is resolved by a decision of the defendant, the defendant bears the costs if the plaintiff could have reasonably expected the decision to be made when filing the lawsuit. However, this does not apply if the defendant had a sufficient reason for the delay and this reason was known or should have been known to the plaintiff. In the case discussed here, the court ruled that the foreign national bore the costs.
Decision on legal costs under Section 161(2) of the VwGO (Administrative Court Procedure Code)
Once the main issue in the dispute was declared resolved, the court had to decide on legal costs according to Section 161(2) of the VwGO at its equitable discretion. As a rule, the costs are imposed on the party that would likely have lost the case without the resolution. In this case, the costs were imposed on the plaintiff because he should not have expected a swift decision on his application at the time of filing the lawsuit.
Sufficient reason for the delay: Plaintiff’s consent
A key point in the judgment was whether the defendant had sufficient grounds for the delay in making the decision. The court found that there was sufficient reason because the plaintiff himself had agreed to a longer processing time. This was evidenced by email correspondence in which the plaintiff acknowledged the delays and made it clear that he did not request any special treatment. Simply asking about the estimated processing time did not revoke this consent.
Revocation of consent and filing of the lawsuit
The plaintiff did not revoke his consent to the longer processing time until an email sent on 04.08.2023, in which he requested that his naturalization application be processed by 04.09.2023. However, this revocation meant that, according to Section 75 of the VwGO, the plaintiff had to wait at least three months after the revocation before filing a lawsuit for failure to act. Since the plaintiff filed the lawsuit prematurely on 01.11.2023, it was inadmissible at the time of filing.
No entitlement to immediate decision by the authority
The court clarified that the plaintiff could not pressure the authority into an immediate decision on his application by revoking his consent and setting his own deadline. In the court’s view, it would be unreasonable to impose such a deadline on the administration, especially since the plaintiff had initially agreed to the longer processing time. In this situation, the authority had a reasonable amount of time to review the application after the revocation of consent.
Cost decision in favor of the defendant
The plaintiff’s lawsuit was initially inadmissible and unfounded because the plaintiff could not prove entitlement to naturalization. The plaintiff’s identity had not been sufficiently clarified until the time of naturalization. However, when the plaintiff submitted the necessary documents in December 2023, the authority promptly responded and carried out the naturalization on 24.02.2024. For this reason, the court ruled that the costs were to be imposed on the plaintiff, as the defendant had only responded to a change in circumstances brought about by the plaintiff.
Source: Administrative Court of Gießen
Important Notice: This article has been created to the best of our knowledge and belief. However, due to the complexity and constantly evolving nature of the subject matter, it is necessary to exclude liability and warranty.
If you need legal advice, feel free to contact us at 0221 – 80187670 or send us an email at info@mth-partner.de.
Attorneys in Cologne advise and represent clients nationwide in immigration law.
