In the name of the people
Verdict
In the litigation
xxx,
plaintiff and appellant,
Legal representative:
Attorney Adam, Lange Geismarstraße 55, 37073 Göttingen,
against
xxx,
defendant and respondent,
The 6th Senate of the State Social Court of Lower Saxony-Bremen, without an oral hearing, on March 15, 2012 in Celle by judges xxx and xxx, judge xxx and the honorary judges xxx and xxx recognized the following:
Upon the plaintiff's appeal, the court decision of the Hildesheim Social Court of June 8, 2010 and the defendant's decision of February 11, 2008 in the form of the objection decision of March 13, 2008 are annulled.
The defendant is ordered to pay the plaintiff unemployment benefit II for the period from January 3rd to March 21st, 2008.
The defendant must reimburse the plaintiff for the out-of-court costs of both legal proceedings.
The appeal is allowed.
Facts
The plaintiff is seeking payment of unemployment benefit (Alg) II for the period from January 3rd to March 21st, 2008. It is disputed whether he is excluded from entitlement to benefits for the first three months of his stay in the Federal Republic.
The plaintiff, born in 1986, is a Kazakh citizen. On June 30, 2007, he married his current wife, who is a German citizen and has lived in the Federal Republic since 1995. On December 13, 2007, the plaintiff received a visa to enter Germany for family reunification and gainful employment was permitted. He entered the Federal Republic of Germany on December 21, 2007 and applied for payment of Alg II on January 3, 2008. His wife began vocational training as a specialist in system catering on September 1, 2007, and her monthly net income was €514.08. The monthly rent was €409.89, the monthly deduction for gas was €86. On February 7, 2008, the plaintiff received a residence permit valid until February 7, 2009 in accordance with Section 28 Paragraph 1 Sentence 1 No. 1 of the Residence Act (AufenthG), and gainful employment was permitted. In a decision dated February 11, 2008, the defendant refused to pay Alg II because foreigners were excluded from basic security benefits for jobseekers in the first three months in accordance with Section 7 Paragraph 1 Sentence 2 of the Social Code (SGB), Book Two (II). The objection was rejected (objection decision dated March 13, 2008). By decision of April 3, 2008, the defendant approved benefits from March 22, 2008, namely for the month of March 2008 in the amount of €114.33 and starting from April 1, 2008 in the amount of €586.76 per month.
On April 14, 2008, the plaintiff filed a lawsuit before the Hildesheim Social Court (SG) and stated in support: It is doubtful that the legislature wanted to include foreigners who received a residence permit due to family reunification in the exclusion of benefits. According to the justification for the law, the exclusion of benefits primarily affects Union citizens who make use of their right to freedom of movement - the three-month unconditional right of residence. The norm only becomes understandable if only the residence permit on which the foreigner's stay is based is chosen as the reference point for the exclusion of benefits. The plaintiff's residence permit is based on the constitutional charisma of Article 6 of the Basic Law (GG).
The SG did not follow this argument and, after hearing the parties involved, dismissed the lawsuit by court decision dated June 8, 2010: There was no restriction of the exclusion regulation according to Section 7 Paragraph 1 Sentence 2 No. 1 SGB II to certain groups of people or to nationals of certain countries either from the wording of the law or from the relevant case law. A restriction cannot be assumed by way of interpretation or analogy because there is already a lack of unclear legal wording that can be interpreted or a regulatory gap that needs to be filled and can be filled.
The appeal filed in the same month is directed against this, with the plaintiff sticking to his legal opinion. He emphasizes that he only came to the country to establish a marital relationship. Taking into account the protection of marriage under Article 6 of the Basic Law, a restrictive interpretation of Section 7 Paragraph 1 Sentence 2 No. 1 SGB II is necessary.
The plaintiff requests
1. to annul the court decision of the SG Hildesheim of June 8, 2010 and the defendant's decision of February 11, 2008 in the form of the objection decision of March 13, 2008,
2. order the defendant to pay him Alg II for the period from January 3rd to March 21st, 2008.
The defendant defends the contested decisions and requests that the plaintiff's appeal against the SG Hildesheim court decision of June 8, 2010 be rejected.
The parties involved agreed to a decision without an oral hearing through a judgment.
In addition to the trial files, the defendant's administrative files were also available to the Senate. They were the subject of the consultation. Because of the details of the facts and the further submissions of those involved, reference is made to the contents of the file.
Reasons for the decision
The permissible appeal was filed in due form and on time and is therefore admissible overall. She is also successful in this matter. This is because the plaintiff was not exempt from entitlement to benefits under SGB II during the dispute period.
The plaintiff also met the benefit requirements of Section 7 Paragraph 1 Sentence 1 SGB II during the dispute period: He was in need of help, had his habitual residence in the Federal Republic and was also able to work, simply because he had already been given the visa of December 13, 2007 employment had been permitted (Section 8 Paragraph 2 SGB II). Contrary to the opinion of the SG and the defendant, he was not excluded from the entitlement to benefits.
However, Section 7 Paragraph 1 Sentence 2 No. 1 SGB II (as amended by the law on the implementation of residence and asylum guidelines of the European Union of August 19, 2007 - BGBI IS 1970/2008) stipulates that, among other things, the benefits under SGB II are excluded Foreigners who are neither employed nor self-employed in the Federal Republic of Germany nor entitled to freedom of movement on the basis of Section 2 Paragraph 3 of the Freedom of Movement Act/EU (FreizügG/EU) for the first three months of their stay. Based solely on the broad wording of the provision, the plaintiff would be covered by this exclusion of benefits. However, in the justification for the Federal Government's draft law of April 23, 2007 (BT-Drs 16/5065 S 234 on Paragraph 9 [SGB II] on No. 2 [§ 7]) it is pointed out that with the newly inserted exclusion from the option the exclusion of benefits in Article 24 Paragraph 2 of Directive (Directive) 2004/38/EC of the European Parliament and of the Council of April 29, 2004 is being used and that the exclusion of benefits primarily affects Union citizens who exercise their right to freedom of movement. With the law of August 19, 2007 amending Section 7 Paragraph 1 Sentence 2 SGB II, the right of Union citizens and their family members to reside in the territory of the Member States for a period of three months, contained in Article 6 of Directive 2004/38/EC, is unconditional stopped, has been implemented (Section 2 Paragraph 5 FreizügG/EU new version). The justification for the law further states that after the first three months of the stay, the further right of residence depends on the purpose of the stay. If a person derives their right of residence solely from the purpose of looking for work, they remain excluded from SGB II benefits in accordance with Section 7 Paragraph 1 Sentence 2 No. 2 SGB II. The legislature excluded foreigners whose right of residence arises solely for the purpose of looking for work and their family members from entitlement to benefits with the law amending SGB II and other laws of March 24, 2006 (BGBl IS 558). In order to avoid a gap in the regulations as a result of the new regulation in the FreizügG/EU, the legislature standardized the exclusion of benefits for the first three months on August 28, 2007 - as shown in the above-mentioned justification for the draft law. Since the right of residence is unconditional during this period, an exception to the entitlement to benefits could not have been justified on the basis of the right of residence for the purpose of looking for work.
Against this background, the broad wording of the reason for exclusion must be interpreted restrictively for the present case of a foreign spouse moving in with his German spouse. According to the justification for the draft law, there is no indication that the new version of Section 7 Paragraph 1 Sentence 2 BGB II should exclude this group of people from benefits under SGB II for the first three months of their stay (also Thie/Schoch in LPK-SGB II 4th edition 2011 § 7 Rn 24, Hackethal jurisPK – SGB II § 7 Rn 34). This is not contradicted by the fact that the legislature has standardized exceptions to the exclusion of entitlement to benefits in Section 7 Paragraph 1 Sentence 2 No. 1 and Sentence 3 SGB II - which are not relevant here. In view of the diversity of life, it cannot be assumed that the legislator of SGB II has an eye on all life circumstances, and an exclusion of benefits would not be compatible with Article 6 Paragraph 1 and Article 1 Paragraph 1 in conjunction with the welfare state principle of Article 20 GG (also SG Berlin judgment of April 18, 2011 - S 201 AS 45186/09 -), so that a restrictive interpretation is also constitutionally required.
Art 6 Paragraph 1 GG places marriage and family under the special protection of the state order; This fundamental right is also available to foreigners as a human right (BVerfGE 31, 58/67). If the marriage consists of German and foreign nationals, Article 6 Paragraph 1 of the Basic Law has a special effect. Against the background of the unrestricted right of residence of the German spouse, Article 6 Paragraph 1 of the Basic Law fundamentally requires that the decision to have the marriage in the Federal Republic be respected. Therefore, the immigrating foreigner is generally entitled to be issued a residence permit (BVerfGE 51, 386/398; Robbers in: v Mangöldt/Klein/Starck GG Komm 6th edition 2010 Art 6 Rn 125; Gröschner in: Dreier GG 2nd edition 2004 Art 6 Rn 93f; General W 28.1.1.0 on § 28 AufenthG, reproduced in Renner Aliens Law 9th edition 2011 on § 28).
Furthermore, Article 1 Paragraph 1 of the Basic Law in conjunction with the welfare state principle of Article 20 Paragraph 1 of the Basic Law establishes a fundamental right to guarantee a humane minimum subsistence level. If a German citizen decides to marry his foreign spouse in the Federal Republic, given the unrestricted right of the German citizen to choose his place of residence and the special significance of Article 6 Paragraph 1 of the Basic Law, the humane minimum subsistence level may not be met - not even for a temporary period.
According to the case law of the Federal Constitutional Court (BVerfG), the fundamental right to guarantee a humane minimum subsistence from Article 1 Paragraph 1 of the Basic Law in conjunction with the welfare state principle of Article 20 Paragraph 1 of the Basic Law guarantees every person in need of assistance the material conditions that are necessary for their physical existence and for a minimum level of participation are essential to social, cultural and political life (BVerfGE 125, 175). Therefore, the question here is not whether the legislature is obliged to promote the reunification of a foreign spouse with his German spouse through a social benefit (according to LSG Baden-Württemberg decision of April 27, 2011 -, L 3 AS 1411/11 ER -B – following SG Stuttgart resolution of March 24, 2011 – S 24 AS 1359/11 ER -). As stated above, the decision to marry in the Federal Republic is fundamentally within the will of the spouses. If you choose the Federal Republic, this decision must be respected and must not lead to an impairment of fundamental rights. Ensuring a humane minimum subsistence level.
The cost decision follows from Section 193 SGG.
The Senate allowed the appeal due to the fundamental importance of the case, Section 160 Paragraph 2 No. 1 SGG.
Instructions on legal remedies follow.
