VG BerlinBerlin Administrative Court, Decision of 04.09.2020, Case No.: 12 K 520.19 V
When applying for a visa to enter Germany, patience is often required, as the process can be lengthy. However, there is a limit to the waiting time, after which an action for failure to act (Untätigkeitsklage) can be filed to force a decision on the visa application.
The action for failure to act is regulated under § 75 of the Administrative Court Procedure Code (Verwaltungsgerichtsordnung, VwGO), which states:
„If a decision on an objection or an application for an administrative act has not been made on substantive grounds within a reasonable period of time without sufficient reason, the action shall be admissible, notwithstanding § 68. The action may not be brought before three months have elapsed since the objection was lodged or the application for the administrative act was submitted, unless special circumstances of the case justify a shorter period. If there is sufficient reason for not yet deciding on the objection or not issuing the requested administrative act, the court shall suspend the proceedings until the expiry of a period to be determined by it, which may be extended. If the objection is granted within the period set by the court or the administrative act is issued within this period, the main matter shall be declared settled.“
Thus, the applicant can file an action for failure to act if more than three months have passed since the application was submitted or the last required documents were filed.
In this case, a visa applicant did exactly that after waiting 12 months for an appointment at the competent embassy. However, the Berlin Administrative Court dismissed the lawsuit as unfounded, citing that the Kosovar embassy was unavoidably overwhelmed due to a change in the law and had made reasonable efforts to address the issue.
Facts of the Case:
Woman from Kosovo Applies for Visa for Family Reunification
The plaintiff sought a visa for family reunification with her husband and son, both of whom live in Germany.
The plaintiff, a Kosovar citizen, resides in Kosovo. Her husband, whom she married in 2005, has lived in Berlin since 1993 and holds a settlement permit. Their son, born in 2003, has also been living in Germany with his father since 2015.
In September 2018, the plaintiff traveled to Germany and applied for a residence permit on September 25, 2018. However, due to her entry without a visa, the immigration authority rejected the application by notice dated April 2, 2019, as it was deemed reasonable for her to complete the process by returning to Kosovo. An emergency application to prevent her deportation was also denied. The plaintiff left Germany on August 8, 2019.
Embassy Informs of 12-Month Waiting Time for Appointment
On July 4, 2019, the plaintiff contacted the German Embassy in Pristina to schedule an appointment to submit her visa application. On August 23, 2019, the plaintiff, through her legal representative, submitted a visa application for family reunification. By email on October 10, 2019, the embassy informed her that the current waiting time for an appointment was 12 months and that appointments were assigned in the order they were requested unless there was an emergency. The embassy noted that the plaintiff had missed an earlier appointment on May 27, 2019. The Foreign Office had taken steps to reduce waiting times as much as possible.
Woman Files Action for Failure to Act with the Berlin Administrative Court
On October 29, 2019, the plaintiff filed an action for failure to act with the Berlin Administrative Court. She argued that the defendant had made it clear that it did not intend to decide on her visa application within a reasonable period. This was particularly significant because both the immigration authority and the Administrative Court had previously argued that it was reasonable for her to leave briefly to obtain a visa. There was no sufficient reason for the delay. The announced waiting time of 17 months was unreasonable, even considering the subsequent processing time. She referred to the Family Reunification Directive, which requires a decision within nine months, and argued that both fundamental and international law required faster processing.
German Embassy Cites Overload and Strict Chronological Processing
The defendant explained that the plaintiff’s personal appearance was necessary to verify her identity and check for possible entry bans as part of the application process. An appointment could probably be scheduled only at the end of 2020, as the Pristina embassy was severely overloaded. However, various measures had been taken to manage the backlog of applications.
Judgment of the Administrative Court of Berlin:
The Administrative Court Found Sufficient Reasons for the Delay
The admissible lawsuit was dismissed as unfounded because, according to § 75 sentence 3 VwGO, there was a sufficient reason for the delay in the decision. The court found that the overload of the embassy, caused by the legal change, constituted a sufficient reason, and the measures taken by the embassy were deemed appropriate.
Conclusion:
The Berlin Administrative Court ruled that the lawsuit was unfounded, as the embassy’s overload was considered a sufficient reason for the delay, and the authority had taken appropriate measures to address the situation.
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