Administrative Court Munich, May 13, 2020, Case No.: M 25 K 19.573
If a foreign national seeks a decision on their naturalization application, they may need to be patient due to potential delays or inaction by the authority.
Naturalization Procedures Should Take No More Than 3 Months
Administrative law, including immigration and naturalization law, offers mechanisms to compel the authority to process the application. One such mechanism is the „failure-to-act“ lawsuit regulated by § 75 of the Administrative Court Procedure Act (VwGO). This type of lawsuit is not a separate type of action but a special form of challenge and obligation claims where, due to inaction by the authority, the lawsuit is admissible without a completed preliminary procedure.
In this case, the applicant sued the naturalization authority for failing to process their naturalization application. However, since the applicant moved during the court proceedings, the lawsuit was ultimately dismissed by the court due to lack of local jurisdiction.
Case Facts of the Court Decision
The plaintiff was an Egyptian and Austrian national. On November 12, 2013, they applied for naturalization in Germany, submitting a confirmation from the Egyptian embassy from 2012 stating that they would be released from Egyptian citizenship upon acquiring German citizenship.
Naturalization Procedure Already Took 3 Years
On June 19, 2016, the authority assured the applicant of naturalization, provided that proof of the loss of Egyptian citizenship was submitted. This assurance was valid until January 18, 2018, and was subject to the condition that the relevant facts and legal situation for naturalization did not change before the deadline.
In an email dated August 16, 2016, the authority informed the applicant’s then-representative that the 2012 certificate concerning the relinquishment of Egyptian citizenship was indefinitely valid according to the consulate, and the naturalization process could continue. The authority requested the submission of two current pay slips.
Plaintiff Files Failure-to-Act Lawsuit Due to Prolonged Naturalization Process
On September 25, 2016, the plaintiff filed a failure-to-act lawsuit with the Bavarian Administrative Court in Munich, requesting that the authority be compelled to naturalize the plaintiff. The plaintiff argued that they had met all naturalization requirements and submitted all required documents.
The applicant is entitled to naturalisation as all naturalisation requirements have been met. He had submitted all the required documents.
On December 14, 2016, the authority informed that it had been notified by the Munich Police Headquarters of two pending criminal proceedings. Therefore, the naturalization process was to be suspended according to § 12a Abs. 3 Sentence 1 of the Nationality Act (StAG). The authority intended to naturalize the applicant if no harmful penalties arose from the criminal proceedings and all other naturalization requirements were met.
The parties then agreed to suspend the proceedings, which was ordered by the Munich Administrative Court on January 25, 2017. On February 4, 2019, the applicant’s representative resumed the proceedings.
Plaintiff Moves During Proceedings
On March 26, 2019, the authority informed that the plaintiff had moved on September 1, 2017, and was now registered as their main residence in the new city, while they had deregistered from the old one. Consequently, the authority was no longer responsible for the naturalization.
The plaintiff’s representative then requested on April 29, 2019, that the authority be compelled to naturalize the plaintiff, or alternatively, to establish that the plaintiff would have been entitled to naturalization.
It was further argued that the last pending criminal case had been concluded. The plaintiff had been sentenced to a fine of 40 daily rates of 30 EUR each by the Munich I Regional Court on May 7, 2018, so that a criminal conviction no longer opposed their naturalization. The authority was still considered locally competent for naturalization, as the plaintiff’s habitual residence was still in the old city, even though they were registered in the new city.
The registration according to the registration law is not to be equated with the habitual residence. If the defendant no longer has local jurisdiction, the plaintiff has a legitimate interest in the requested determination, as he wishes to take action against the defendant in the context of official liability proceedings.
Decision of the Munich Administrative Court
The Munich Administrative Court ruled that while the lawsuit was admissible, it was unfounded. The alternative request was inadmissible.
Lawsuit Admissible but Unfounded Due to Plaintiff’s Move
The lawsuit was admissible as a failure-to-act lawsuit under § 75 VwGO, as the authority had not yet decided on the naturalization application filed in 2013. However, the lawsuit was unfounded because, at the time of the decision, the authority was no longer locally competent and thus lacked passive legitimacy under § 78 VwGO. The relevant facts and legal situation for the naturalization claim must be assessed at the time of the oral hearing or the decision of the last instance (BVerwG, Judgment of October 20, 2005 – 5 C 17.05; BVerwG, Judgment of June 5, 2014 – 10 C 2/14; NdsOVG, Order of February 27, 2013 – 19 E 205/13).
At this time, the authority was no longer locally competent to decide on the plaintiff’s naturalization application. If a naturalization applicant moves to the jurisdiction of another naturalization authority in a different federal state, this new authority becomes locally competent for the naturalization process under § 3 Abs. 1 Nr. 3a of the Administrative Procedure Act (VwVfG) of the respective federal state (NdsOVG, Order of February 27, 2013 – 19 E 205/13). For the authority in question, local jurisdiction is governed by Art. 3 BayVwVfG.
Plaintiff’s Original Claim Becomes Moot
The plaintiff’s original claim to compel the authority to naturalize them became moot due to the move. The request made on April 29, 2019, to establish that the authority would have been obligated to naturalize the plaintiff, was not supported by the required legitimate interest.
The plaintiff did not demonstrate a legitimate interest in establishing the unlawfulness of the authority’s actions. While preparing for a liability claim might generally justify a legitimate interest for a continuation claim, substantial details about the anticipated damage are required. Specific information is necessary in this regard (Schübel-Pfister in: Eyermann, Administrative Court Procedure, 15th Edition 2019, § 113 VwGO; NdsOVG, Order of January 23, 2003 – 13 A 4859/00).
This was not provided in this case. The plaintiff’s representative only broadly stated that the continued lawsuit served to prepare for a liability claim against the authority. No further details about possible damages were provided.
Moreover, the lawsuit was also unfounded. At the time of the event that rendered the claim moot, the plaintiff had no claim to naturalization against the authority due to § 12a Abs. 3 Sentence 1 StAG, as a criminal proceeding was still ongoing against the plaintiff in the fall of 2017, and the naturalization process was thus to be suspended.
Furthermore, the action would also be unfounded. At the time of the terminating event, the plaintiff had no claim to naturalisation against the defendant on the basis of the provision of Section 12a para. 3 sentence 1 StAG, as criminal proceedings were still ongoing against the plaintiff in autumn 2017 and the naturalisation procedure was therefore to be suspended in accordance with Section 12a para. 3 sentence 1 StAG.
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