{"id":6080,"date":"2021-11-29T15:08:41","date_gmt":"2021-11-29T15:08:41","guid":{"rendered":"https:\/\/www.mth-partner.de\/?p=6080"},"modified":"2025-06-12T12:37:14","modified_gmt":"2025-06-12T12:37:14","slug":"auslaenderrecht-wenn-die-auslaenderbehoerde-so-langsam-und-schlecht-arbeitet-dass-sogar-das-gericht-im-urteil-darauf-bezug-nimmt","status":"publish","type":"post","link":"https:\/\/www.mth-partner.de\/en\/foreigners-law-when-the-immigration-authority-works-so-slowly-and-poorly-that-even-the-court-refers-to-it-in-its-judgment\/","title":{"rendered":"Foreigners\u2018 Law: When the immigration authority works so slowly and poorly that even the court refers to it in its judgment."},"content":{"rendered":"

Administrative Court of D\u00fcsseldorf, Judgment from January 31, 2020, Case No.: 7 K 4969\/18<\/strong><\/p>\n

The case discussed here, adjudicated by the Administrative Court of D\u00fcsseldorf, is noteworthy because the court explicitly addressed the personnel and structural deficiencies of the defendant immigration authority.<\/p>\n

The court identified clear organizational negligence on the part of the City of Wuppertal concerning the resourcing of its immigration office. The judgment also mentioned the court\u2019s efforts, outside of its regular proceedings, to encourage the City of Wuppertal to better equip the immigration office.<\/p>\n

Substantively, the slow operations of the immigration office resulted in the dismissal of the inactivity lawsuit because the plaintiff was not entitled to a residence permit. However, the court ordered the authority to bear the costs since it believed the authority\u2019s delays forced the plaintiff to file the lawsuit.<\/p>\n

\"Immigration<\/p>\n

<\/span>Facts of the Case:<\/span><\/h2>\n

<\/span>The plaintiff had applied for a humanitarian residence permit at the immigration office.<\/span><\/h3>\n

The plaintiff, an Armenian national, had already unsuccessfully sought asylum in Germany in the early 2000s<\/p>\n

On September 7, 2015, he re-entered Germany with his family and applied for asylum with the BAMF on August 12, 2016. This application was rejected as manifestly unfounded on June 28, 2017. The Administrative Court of D\u00fcsseldorf rejected the request for interim relief on July 30, 2017 (Case No. 4 L 3414\/17.A).<\/p>\n

On July 12, 2017, the plaintiff applied to the defendant City of Wuppertal for a humanitarian residence permit, citing his inability to travel due to a mental illness, supported by relevant medical certificates.<\/p>\n

On September 26, 2017, the plaintiff reminded the authority about the decision on the application. On October 18, 2017, he filed for deportation protection with the court, claiming he was unfit to travel. After the defendant reported that the plaintiff\u2019s deportation was not imminent, the court rejected the application due to a lack of grounds on July 9, 2018 (Case No. 7 L 5104\/17). The Higher Administrative Court of North Rhine-Westphalia rejected the subsequent appeal on October 9, 2019 (Case No. 18 B 1112\/18).<\/p>\n

<\/span>After the immigration authority failed to respond for an extended period, the plaintiff filed an inactivity lawsuit.<\/span><\/h3>\n

On June 6, 2018, the plaintiff, together with his family members, filed a lawsuit, claiming that the defendant had remained inactive regarding his application for a humanitarian residence permit submitted on July 12, 2017. In support, he presented various medical certificates from a specialist in neurology, psychiatry, and psychotherapy.<\/p>\n

The court eventually separated the cases concerning the plaintiff\u2019s wife and children on January 31, 2020. During the oral hearing, the plaintiff modified his application, now requesting the defendant be ordered to grant him a residence permit under Section 25(5) of the Residence Act (AufenthG). The defendant requested dismissal of the lawsuit but did not submit a statement.<\/p>\n

On June 22, 2018, the defendant notified the plaintiff outside of the court proceedings that it intended to reject the application for a residence permit.<\/p>\n

<\/span>Judgment of the Administrative Court of D\u00fcsseldorf:<\/span><\/h2>\n

<\/span>The court found that the plaintiff had no right to a residence permit.<\/span><\/h3>\n

The Administrative Court of D\u00fcsseldorf ruled that the lawsuit was admissible as an inactivity lawsuit under Section 75 of the Administrative Court Procedure Act (VwGO) since the City of Wuppertal had not decided on the plaintiff\u2019s application for a residence permit within a reasonable time and without adequate justification. However, the court found that the plaintiff was not entitled to a residence permit under Section 25(5) of the Residence Act at the time of the hearing.<\/p>\n

The court ruled that the prerequisites for the permit were not met, as the plaintiff\u2019s departure was not impossible for legal or factual reasons. The plaintiff based his case on a claim of unfitness to travel due to a mental illness, arguing that deportation would violate his health rights under Article 2(1) of the Basic Law. However, the court found that the medical certificates provided by the plaintiff were over two years old and insufficient to prove his current health condition.<\/p>\n

These conditions were not met, as the applicant's departure was not impossible for legal or factual reasons. In support of his claim, the applicant invokes an inability to travel due to a mental illness. This makes it legally impossible for him to leave the country or be deported because this would violate his health, which is protected by Article 2 (1) of the German Constitution. The certificates submitted by the plaintiff as further justification by the specialist in neurology, psychiatry and psychotherapy are more than two years old and are therefore not suitable to provide information about the current state of health of the plaintiff and any risks to his health in the event of deportation to his home country.<\/p>\n

It was also not substantiated or otherwise apparent that the illnesses diagnosed at the time (post-traumatic stress disorder, severe depressive episode with psychotic symptoms, suicidal tendencies and anxiety disorder with panic attacks) still impaired the applicant's health today or significantly worsened the applicant's state of health in the event of deportation within the meaning of Section 60 (7) sentence 3 AufenthG. Further circumstances which could give rise to a legal or actual obstacle to departure or deportation were neither asserted nor otherwise apparent.<\/p>\n

<\/span>Although the plaintiff had no right to a residence permit, the immigration authority was still ordered to bear the costs.<\/span><\/h3>\n

Under Section 155(4) of the Administrative Court Procedure Act (VwGO), the court can impose costs on a party if those costs result from the party\u2019s fault. The court ordered the defendant to bear the full costs of the proceedings because it had forced the plaintiff to file the lawsuit due to its persistent inactivity. The court attributed this behavior not to an individual employee but to organizational negligence by the City of Wuppertal, which had failed for years to properly staff the immigration office to fulfill its legal obligations.<\/p>\n

The defendant, the City of Wuppertal, is responsible for the fact that the plaintiff - in order to obtain a decision on the merits of the case - had to conduct this process and also have it decided in a dispute due to its persistent inaction. The defendant had not made a decision on the application of 12 July 2017 for a residence permit for the plaintiff, which it had demonstrably received. There was also no response from the defendant to the plaintiff's pre-litigation reminder of 26 September 2017.<\/p>\n

In the interim relief proceedings of 18 October 2017 (7 L 5104\/17), which were therefore initiated out of legal caution, the defendant and respondent also commented on this for the first time on 29 January 2018 (three months later!), but without making a decision on the matter.<\/p>\n

Apart from the hearing on an intended rejection of the application by letter dated 22 June 2018, which took place outside the administrative court proceedings, the defendant did not take any further steps to decide on the application during the administrative court proceedings until the end of the oral hearing, even after the present action was brought on 6 June 2018. This persistent denial of justice by the defendant was also the cause of the - full - legal costs incurred. This behaviour of the defendant was also culpable. In view of the staff shortage regularly cited by the defendant and the resulting overload of its employees, the court does not assume that a specific employee of the defendant was at fault. Rather, the court sees organisational culpability on the part of the relevant bodies of the defendant, which consists of not having provided the \"Foreigners' Registration Office\" department with the personnel (in quantity and quality) required to fulfil the legally required tasks for several years. For years, the Chamber has observed an unparalleled fluctuation of the already scarce staff, combined with a corresponding overload of the remaining staff, who have to both absorb the loss and train new staff.<\/p>\n

<\/span>Administrative court lists various effects of the inadequate equipment of the foreigners authority<\/span><\/h3>\n

This \"brain drain\" and the general staff shortage have already led to inadequate processing in many cases for years. Here are just a few examples:<\/p>\n