Munich Administrative Court, 8 February 2016, Ref.: 24 K 15.31419
The Federal Office for Migration and Refugees is responsible for decisions in the asylum procedure. If the processing time of the asylum application has already taken a significant amount of time, the question arises as to what measures the asylum seeker can take to obtain a faster decision. These measures are laid down in § 75 of the Administrative Court Procedure Act (VwGO), which governs the action for failure to act:
§ 75 VwGO
If a decision on an objection or an application for the issuance of an administrative act has not been made within a reasonable period without sufficient cause, an action is admissible, deviating from § 68. The action cannot be filed before the expiration of three months from the filing of the objection or the application for the issuance of the administrative act, unless a shorter period is warranted due to special circumstances of the case. If there is sufficient reason for the objection not yet being decided upon or the requested administrative act not yet being issued, the court shall suspend the proceedings until the expiration of a period set by it, which may be extended. If the objection is granted or the administrative act is issued within the period set by the court, the main matter shall be declared settled.
The application for asylum is an application for the issuance of an administrative act, so § 75 VwGO is applicable in the asylum procedure. The action for failure to act is not an independent type of action but a special type of annulment or mandatory action that can be brought as soon as the administrative act has not yet been issued.
According to § 75 sentence 2 VwGO, such an action for failure to act can only be filed after three months have passed since the application was made; otherwise, the action is inadmissible unless special circumstances (e.g., particular need for assistance, existential matters, etc.) as per § 75 sentence 2, second half-sentence VwGO justify a shorter period.
In the asylum procedure, it must also be considered that the starting point of the three-month period does not always have to be the formal submission of the asylum application in Germany. In many cases, asylum seekers have first traveled through third countries, so the relevant point in time is when the member state responsible for the asylum procedure under the Dublin III Regulation has been determined. Once this has been established, the three-month period begins to run.
Within the framework of the lawsuit, the authority can then still invoke sufficient reasons for the delayed processing of the application. Such reasons under § 75 sentences 1 and 3 VwGO may include the complexity of the case or particular difficulties in clarifying the facts, but not a general overload of work.
In the case discussed here, the admissibility and merits of an action for failure to act in the asylum procedure were at issue, with which the plaintiffs (Afghan asylum seekers) demanded that the defendant (Federal Office for Migration and Refugees) proceed with their asylum procedure and decide within a deadline set by the court.
Facts of the Case – Afghan Refugees Applied for Asylum
The case involved Afghan nationals who applied for asylum in Germany in December 2013. By the time of the court’s decision at the end of 2015, this application had not yet been decided upon. A hearing under § 25 of the Asylum Act (AsylG) had not taken place in the administrative procedure, and the Federal Office for Migration and Refugees (BAMF) had not initiated a Dublin procedure. Even a request by the plaintiffs‘ attorney in February 2014 for notification of a hearing date went unanswered.
Filing of the Action for Failure to Act – BAMF Took a Very Long Time
Due to BAMF’s inactivity, the plaintiffs filed an action for failure to act with the Munich Administrative Court in October 2015. They requested that BAMF be obliged to decide on their asylum application from December 2013. The court asked BAMF in December 2015 to comment on a possible reason for the delay. When BAMF did not respond, the court decided that the proceedings should not be suspended under § 75 sentence 3 VwGO.
Decision of the Munich Administrative Court
The Munich Administrative Court found that the action was admissible and successful. The court interpreted the plaintiffs‘ request as demanding a decision on their asylum application within three months of the judgment becoming final. The court had jurisdiction because the plaintiffs were residing in the court’s district at the relevant time of filing the action.
The court also found that the action for failure to act directed at a decision by BAMF is admissible, even if it does not seek specific substantive positions. Under § 75 VwGO, an action for failure to act can be brought even if it merely seeks a decision on the matter.
Considerations Under Union Law
The court argued that such an action for failure to act is also required under Union law. Both the old version of the Asylum Procedures Directive (2005/85/EC) and the new version (2013/32/EU) grant asylum seekers a subjective right to an administrative decision following a personal hearing. This also includes the right to judicial review of the decision. The court clarified that a hearing by the court during the oral proceedings does not always meet the requirements of the Asylum Procedures Directive, particularly with respect to confidentiality and the absence of family members as provided for in the administrative procedure.
Admissibility of the Action for Failure to Act in Asylum Law
The court further decided that asylum seekers are not obliged to direct their action for failure to act toward specific substantive legal positions, the resolution of which might require a corresponding hearing in the oral proceedings by the court. Rather, they can direct their action merely toward an obligation to decide in order to safeguard their procedural rights under Union law in the asylum procedure.
The court explained that § 44a VwGO does not preclude such an action within the scope of the Asylum Procedures Directive. Nor does § 71a AsylG change this Union law-mandated possibility of an action for failure to act directed solely at a decision. This is particularly true when there is no unsuccessful completion of an asylum procedure in another Dublin state, and Germany’s responsibility is assumed. In the present case, there was no indication from the files that the plaintiffs had contact with other safe third countries.
Merits of the Action for Failure to Act
The court found that the action was admissibly filed after the expiration of the three-month period under § 75 sentence 2 VwGO. The six-month period mentioned in § 24 paragraph 4 AsylG does not relate to the prerequisites for a judgment in court but only to the administrative procedure. The action for failure to act was therefore justified, as the plaintiffs had a right to a decision on their asylum application.
BAMF had not provided sufficient reasons for why the administrative procedure had not yet been completed. Nor did the files provide any indication of a hearing or a Dublin procedure. Since BAMF had not made a decision after more than 25 months, the court found that the matter was ripe for decision within the meaning of § 113 paragraph 5 VwGO. The lack of a decision by BAMF was therefore unlawful and violated the plaintiffs‘ subjective right to a prompt resolution of the procedure.
Outcome of the Case – BAMF Must Work Faster
The Munich Administrative Court ordered BAMF to make a decision on the plaintiffs‘ asylum application within three months of the judgment becoming final. The court emphasized that the asylum seekers‘ interest in a prompt decision is particularly worthy of protection, as the Asylum Procedures Directive ensures that asylum procedures must be completed as quickly as possible.
The decision is based on the assumption that a prompt resolution in asylum law is not only in the interest of the administration but also of the affected asylum seekers. The court emphasized that BAMF is obliged to conduct the plaintiffs‘ hearing and further fact-finding within the set three-month period and make a decision.
Conclusion
The decision of the Munich Administrative Court clarifies that actions for failure to act in asylum law are also admissible when they merely seek an obligation to decide. BAMF’s delay of more than two years without a hearing or decision was deemed unlawful. The ruling strengthens the rights of asylum seekers to have their applications processed quickly and underscores the administration’s obligation to adhere to procedural deadlines.
Source: Munich Administrative Court
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