top of page
Search

Will an Untätigkeitsklage Hurt Your Application? And Can You File It Yourself?

Fiona Macdonald
1 day ago
5 min read

The question applicants ask most before suing an unresponsive immigration or naturalization office is whether the office will hold it against them. Lawfully, it cannot. An Untätigkeitsklage (action for failure to act) changes when the authority has to decide, not the criteria it decides on. The second question is whether a lawyer is needed. In the first court instance, no, but the form and the timing have to be right.

What the law says about consequences

The authority decides your application on its legal requirements: those of the Residence Act (AufenthG) for a residence permit, those of the Nationality Act (StAG) for naturalization. Nothing in the AufenthG or the StAG makes a court action a ground for refusal. The administration is bound by law (Art. 20 Abs. 3 GG), and anyone whose rights are infringed by public authority has recourse to the courts (Art. 19 Abs. 4 GG).

Where the law gives the office discretion, it must exercise it in line with the purpose of the provision (§ 40 VwVfG and its Land equivalents), and the court reviews exactly that (§ 114 VwGO). Punishing an applicant for suing is not such a purpose. A refusal of a residence permit must be in writing and give reasons (§ 77 Abs. 1 AufenthG); for naturalization, the general duty to give reasons applies (§ 39 VwVfG and its Land equivalents). A refusal that rests on the lawsuit rather than on the law can itself be challenged.

What the court case does change

The action does change one thing: your file gets attention. The authority must send its files to the court (§ 99 Abs. 1 VwGO), and the court investigates the facts itself (§ 86 Abs. 1 VwGO). Someone now has to read the file and explain the delay to a judge. If something is genuinely missing, such as a document, a language certificate or the result of the security check, it will come to light. The office may ask for it, or refuse if a requirement is not met.

Such a refusal is not a penalty for suing. It is the decision the office would have reached anyway, only sooner. An action for something you do not qualify for fails, and the losing side bears the costs (§ 154 Abs. 1 VwGO). The action is most useful when your file is complete and you meet the requirements as they stand today.

Filing the action yourself

Under § 67 Abs. 1 VwGO, you can conduct your own case before the Verwaltungsgericht (administrative court). Representation by a lawyer becomes mandatory only before the Higher Administrative Court and the Federal Administrative Court, and already for the application for leave to appeal, even though that application is filed at the Verwaltungsgericht (§ 67 Abs. 4, § 124a Abs. 4 VwGO).

The action must be filed in writing (§ 81 Abs. 1 VwGO), usually as a signed letter, or recorded at the court registry (Geschäftsstelle). A plain email is not a valid filing. Electronically, private individuals can use Mein Justizpostfach, a free mailbox that requires a BundID account verified with an electronic ID, or an eBO (electronic mailbox for citizens and organizations), which needs paid software (§ 55a Abs. 3 and 4 VwGO). The document must be a PDF carrying your name as the signature. The language of the court is German (§ 184 GVG with § 55 VwGO), so write the action in German.

Under § 82 Abs. 1 VwGO, the action must name the claimant, the defendant and the subject matter. It should contain a specific motion and state the facts and evidence. If something is missing, the court sets a deadline to supplement it (§ 82 Abs. 2 VwGO). A workable action contains:

  • your full name and address as claimant

  • the defendant, usually the Land, city or district whose office has not decided; naming the office is enough (§ 78 Abs. 1 Nr. 1 VwGO)

  • what you applied for, when, and the file number

  • a motion asking the court to oblige the defendant to grant what you applied for

  • the dates showing that three months have passed, and your contact with the office since

  • copies of the application, the receipt confirmation and correspondence

The competent court is generally the Verwaltungsgericht for the district where the office sits (§ 52 Nr. 3 VwGO). Where an office covers several court districts, it is the court for your place of residence; visa cases go to the Administrative Court of Berlin.

Costs and timing when you file alone

The main cost risk lies in the timing. As a rule, the action cannot be filed before three months have passed since the application (§ 75 S. 2 VwGO). If the office decides after you file and the case ends there, the authority bears the costs where you could have expected a decision before filing (§ 161 Abs. 3 VwGO). An action filed too early generally becomes admissible once the three months expire while it is pending, but that cost rule then does not protect you. In naturalization cases, especially, courts often allow for much longer processing times than three months. The amount of time varies by city and state.

When to get a lawyer

A lawyer does not change the criteria. What a lawyer adds is judgment on whether the delay is already unreasonable for your office and type of application, whether the authority can point to a sufficient reason, and whether your file is complete enough that the action produces a decision rather than exposing a gap. During the proceedings, the lawyer reviews the authority's file, answers its statement to the court, and argues the costs if the office decides after the action. With a clean chronology and a complete file, filing yourself is realistic. Where the file has open points, or a job depends on the outcome, get advice first.

Go to court knowing where your file stands

Fiona Macdonald advises on whether an action makes sense for a delayed residence, Blue Card, permanent residence or naturalization application, and files it at a flat fee that covers the whole action until a decision or judgment. Fiona Macdonald advises clients anywhere in Germany and internationally by video.

Related reading

Sources

Last reviewed: October 2026 — RAin Fiona Macdonald

This article reflects information available at the review date above and may not remain current as rules and practice change. It is general information only, not legal advice, and does not create a lawyer–client relationship. Liability for reliance on its contents is excluded to the extent permitted by law.

© 2026 Fiona Macdonald Rechtsanwältin

​

Imprint

bottom of page