DECISION
In the legal dispute
xxx,
Applicant,
Legal Representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
Werra-Meißner district, represented by xxx,
respondent,
The 11th Chamber of the Social Court of Kassel decided on September 11, 2017, through Judge xxx as Chairwoman of the Social Court:
The respondent is provisionally obligated, until the main proceedings are concluded with final legal effect, but no later than the end of the period of entitlement to benefits under the Asylum Seekers' Benefits Act, to grant the applicant benefits in accordance with Section 2 of the Asylum Seekers' Benefits Act and in accordance with the Twelfth Book of the Social Code, from 23 August 2017 onwards, to the extent permitted by law.
The respondent shall bear the applicant's necessary extrajudicial costs.
REASONS
In the preliminary injunction proceedings, the applicant seeks to compel the respondent to grant benefits under Section 2, and thus higher benefits under the Asylum Seekers' Benefits Act (AsylbLG), instead of the benefits granted under Section 3.
The applicant, born in Ethiopia on [date redacted], arrived in Germany from Italy on January 11, 2014, and was assigned to the Werra-Meißner district. There, he lived in communal accommodation and received benefits from the respondent pursuant to Section 3 of the Asylum Seekers' Benefits Act (AsylbLG). The applicant's asylum application in Germany was rejected by the Federal Office for Migration and Refugees (BAMF) on the grounds that Italy was responsible for the application, and there was an intention to deport the applicant to Italy on November 12, 2015. To prevent the deportation, the applicant was granted church asylum in the premises of the Evangelical Church of [location redacted]. The respondent subsequently discontinued his benefits at the end of November 2015. Due to the expiration of the transfer deadline under the Dublin Regulation, the applicant received a temporary residence permit from the respondent's immigration authority in January 2016 to pursue his asylum application in Germany. Following a personal appearance by the applicant before the respondent, the applicant (again) received benefits under the Asylum Seekers' Benefits Act (AsylbLG) from January 13, 2016, by decision dated February 6, 2016, and February 10, 2016, respectively. The benefits under Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) amounted to a total of €335.88 per month for the applicant.
In June 2017, the respondent examined a possible change to the applicant's benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Book XII of the German Social Code (SGB XII). Upon inquiry, the immigration authority informed the respondent on June 26, 2017, that the applicant was still in ongoing asylum proceedings. Return to Italy, the country of first entry, under the Dublin Regulation was no longer possible, as the applicant had been in church asylum until the end of the return deadline. Consequently, the respondent did not change the benefits to those under Section 2. Benefits continued to be provided under Section 3 of the Asylum Seekers' Benefits Act. By decision dated July 7, 2017, the respondent granted the applicant ongoing benefits under Section 3 of the Asylum Seekers' Benefits Act in the amount of €325.88 per month until further notice.
By letter dated August 12, 2017, the applicant's legal representative filed an objection to the granting of benefits from August 2017 onwards. The objection was not substantiated, and the legal representative requested access to the case file.
In a letter received by the Kassel Social Court on August 23, 2017, from his legal representative, the applicant requests that the respondent be ordered to grant him higher benefits starting in August 2017. He argues that church asylum does not constitute a legal obstacle to deportation, but rather that the competent authorities made the decision to suspend the deportation on their own responsibility. He further argues that the transfer deadline under Article 18(4) of the Dublin II Regulation is not suspended by church asylum. Reference is made to the attached decisions of the Göttingen Administrative Court (judgment of February 26, 2015, 3 A 278/14), the Cologne Administrative Court (judgment of January 16, 2015, 3 K 7537/13), and the Göttingen Administrative Court (judgment of May 19, 2015, 6 T 1833/14). Therefore, there can be no question of the applicant's conduct being considered an "abuse of rights." The decision of the Higher Social Court of Munich (LSG München) cited by the respondent (decision of November 11, 2016, L 8 AY 29/16 B ER) does not consider the use of church asylum to be an abuse of rights, but merely a breach of duty that could justify a restriction of benefits under Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) for the duration of the church asylum. However, restrictions exceeding those provided for in Section 1a AsylbLG are not permissible solely on the grounds of using church asylum (LSG München, ibid., para. 35). The applicant's legal representative fully concurs with the reasoning of the Social Court of Stade of March 17, 2016 (S 19 AY 1/16 ER). The applicant thus fulfills the requirements for so-called analogous benefits under Section 2 AsylbLG. Grounds for an injunction exist. The applicant's constitutionally guaranteed minimum subsistence level is no longer secure. If subsistence-level benefits are not available, it can regularly be assumed that grounds for an injunction exist within the meaning of Section 86 Paragraph 2 Sentence 2 of the Social Court Act (SGG).
The applicant essentially requests that
the respondent be ordered by way of an interim injunction to grant him benefits pursuant to Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) in accordance with the German Social Code, Book XII (SGB XII), in the legally prescribed amount.
The respondent requests that
the application for an interim injunction be rejected.
The respondent argues that the application for preliminary injunction to grant benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) is unfounded, as there is no legal basis for such an order in this case. Benefits under Section 2 of the AsylbLG in conjunction with Book XII of the German Social Code (SGB XII) are granted to those who have resided in Germany for 15 months without significant interruption and have not abused their rights to influence the duration of their stay. While the applicant has indeed resided in Germany for more than 15 months, he has abused his rights to remain. He initially entered the EU member state of Italy, meaning that Italy would have been responsible for his asylum procedure under the Dublin Regulation. Germany was also entitled under the Dublin Regulation to return him to Italy within a specific timeframe. The applicant resisted this return by seeking sanctuary in a church until the deadline expired. There is no apparent reason why the applicant should have been unable to tolerate the completion of his asylum procedure in Italy. The European Court of Justice (ECJ) recently confirmed the validity of the Dublin Regulation. According to the commentary on the Asylum Seekers' Benefits Act (AsylbLG) by Hohm, the objective elements of abuse under Section 2 of the AsylbLG are considered fulfilled by the use of church asylum (see paragraph 84 on Section 2). This commentary argues that church asylum also influences the duration of the stay due to the de facto obstacle to deportation created by the foreigner himself. Therefore, church asylum is generally a circumstance that precludes the granting of benefits in special cases. The commentary also addresses the decision of the Social Court of Stade of March 17, 2016. While the Social Court of Stade denied that the foreigner's conduct was immoral, finding that it was compatible with societal values for church congregations to offer church asylum to foreigners facing imminent deportation, the commentary does not alter this conclusion. The legislator, however, uses the term "abuse of rights" and thereby refers not to arbitrary societal values, but to concrete violations of specific provisions of asylum, immigration, or social law. At the very least, there is a violation of the obligation to leave the country under Section 58 of the Residence Act. The temporary suspension of deportation granted by the immigration office for the duration of the church asylum does not alter the fact that the foreigner remains subject to enforceable deportation even during the validity period of the temporary suspension and is therefore behaving in a socially unacceptable manner within the meaning of immigration law. The applicant therefore does not meet the requirements for receiving benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG). The respondent considers this position to be supported by a decision of the Bavarian State Social Court (LSG Bayern) of November 11, 2016 (L 8 AY 28/16 B ER).
For further details, including the submissions of the parties, reference is made to the contents of the court file and the administrative file of the respondent.
II.
The issuance of a preliminary injunction to regulate a provisional state of affairs with regard to a disputed legal relationship is permissible pursuant to Section 86b Paragraph 2 Sentence 2 of the Social Courts Act (SGG) if such regulation appears necessary to avert substantial disadvantages. A prerequisite for issuing a regulatory injunction is always that both grounds for the injunction (i.e., the urgency of the regulation to avert substantial disadvantages) and a claim for the injunction (i.e., the sufficient probability of a substantive claim to benefits) are substantiated (cf. Section 86b Paragraph 2 Sentence 4 SGG in conjunction with Section 920 Paragraph 2 of the Code of Civil Procedure – ZPO). In principle, due to the provisional nature of the preliminary injunction, the final decision in the main proceedings should not be anticipated. Because of the requirement to grant effective legal protection (cf. Art. 19 para. 4 of the Basic Law – GG), a deviation from this principle is only warranted if, without the requested order, serious or unreasonable disadvantages would arise that cannot be remedied later and which a subsequent decision on the merits would no longer be able to eliminate (cf. BVerfG 79, 69 74 with further references). Insofar as a complete clarification of the factual and legal situation is not possible for the court in such preliminary injunction proceedings, a balancing of interests must be carried out (cf. BVerfG, decisions of 12 May 2005 – 1 BvR 569/05, paras. 19, 26 and of 25 February 2009 – 1 BvR 120/09, para. 11, each cited according to juris).
Based on these principles, the application for preliminary legal protection is admissible and, to the extent specified, also well-founded, not least within the framework of the so-called balancing of interests. Both grounds for an injunction and a claim to the injunction exist.
There is no doubt about the existence of the necessary urgency. As a result of granting benefits only under Section 3 of the Asylum Seekers' Benefits Act (AsylbLG), the applicant receives approximately €83.00 less per month compared to the benefits under Section 2 of the AsylbLG in conjunction with the benefit rates under Book XII of the German Social Code (SGB XII). The applicant thus suffers a financial disadvantage that cannot be remedied by subsequent main proceedings. This is because the monthly benefits are intended to secure current subsistence needs. A later back payment of benefits cannot compensate for the current disadvantage resulting from the lower benefits.
Contrary to the respondent's assertion, the applicant fulfills the requirements for the conversion of his benefits from Section 3 to Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG). Due to the passage of time since his entry into Germany in October 2014, he is now entitled to higher benefits under Book XII of the German Social Code (SGB XII). According to Section 2 Paragraph 1 of the AsylbLG, Book XII of the SGB XII is applied analogously to those entitled to benefits (so-called analogous benefits) who have resided in Germany for 15 months without significant interruption and have not abused their rights to influence the duration of their stay. The applicant has now resided in Germany for more than 15 months, as he entered Germany in October 2014. This remains unchanged even though he received church asylum from November 12, 2015, to January 12, 2016, which was granted to him by the Evangelical Church of xxx. The adjudicating chamber follows the corresponding reasoning of the Social Court of Stade in its decision of March 17, 2016 (S 19 AY 1/16 ER, cited according to juris, para. 14 et seq.). The Social Court of Stade denies that the granting of church asylum constitutes an abuse of rights within the meaning of Section 2 of the Asylum Seekers' Benefits Act (AsylbLG). In this, the adjudicating chamber also correctly refers to the jurisprudence of the Federal Social Court (BSG) in its judgment of June 17, 2008 (B 8/9 AY 1/07 R). According to this decision, a significant abuse of rights requires dishonest conduct that is disapproved of by the legal system. A person who is entitled to higher so-called analogous benefits under Book XII of the German Social Code (SGB XII) based on Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) should not be able to claim these benefits if the benefit provided for in Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) is acquired in an unlawful or immoral manner. In its guiding principle in the aforementioned decision, the Federal Social Court (BSG) specifically stated that, for the assumption of an abuse of rights in influencing the length of stay, the benefit recipient must be accused of intentionally engaging in socially unacceptable behavior aimed specifically at extending their stay, taking into account the individual circumstances of the case. For example, the BSG considered the mere use of a temporary suspension of deportation under immigration law insufficient if it would nevertheless be possible and reasonable for the foreigner to leave voluntarily (BSG, ibid., cited according to juris regarding the guiding principle). The present court agrees with the Social Court (SG) Stade that conduct only leads to the exclusion of analogous benefits if, considering the individual circumstances, the foreigner's specific situation in Germany, and the particular characteristics of the Asylum Seekers' Benefits Act (AsylbLG), it is inexcusable and therefore must be considered socially unacceptable (SG Stade, ibid., cited according to juris, para. 14). However, if the state itself temporarily refrains from enforcing the obligation to leave the country, this does not constitute an abuse of rights on the part of the foreigner (cf. the aforementioned Federal Social Court ruling, loc. cit.). In the present case, the applicant sought sanctuary in the church offered to him by the Evangelical Church of xxx on November 12, 2015, and immediately informed the immigration office. The Central Immigration Authority at the Kassel Regional Council, in coordination with the Federal Office for Migration and Refugees (BAMF), had planned the applicant's transfer to Italy by air for November 12, 2015. As a result of the applicant's acceptance of church sanctuary, the deportation was canceled. The BAMF revoked its decision of September 15, 2015, rejecting the asylum application and ordering deportation to Italy, with a decision dated January 12, 2016. The applicant was granted a temporary residence permit to pursue his asylum application in Germany. The immigration authority therefore did indeed respect the applicant's church asylum and thus, from the beginning of the church asylum, effectively tolerated the applicant's stay, and subsequently, in fact, tolerated it (decision of the Federal Office for Migration and Refugees dated January 12, 2016). However, if the competent immigration authority actually respects the institution of church asylum and does not intervene with measures to terminate the applicant's stay, the use of church asylum cannot be considered an abuse of rights (see Social Court Stade, loc. cit., cited according to juris, para. 15, based on Federal Social Court decision of June 17, 2008, loc. cit., cited according to juris).
According to the Social Court of Stade, the use of church asylum offered by a church congregation cannot be considered immoral behavior. The granting of church asylum to the applicant, who was threatened with deportation, by the pastor and congregation of the Evangelical Church in xxx is consistent with the Christian values of German society. Church asylum is also readily respected by the relevant authorities. In such a case, there can be no question of flight or going into hiding, which is disapproved of by society. Therefore, the granting of church asylum by the Evangelical Church in xxx cannot be attributed to the applicant as an abuse of rights. Finally, it cannot be disregarded that the applicant did not intend to evade deportation after his asylum application was rejected due to a lack of grounds for asylum, but only to prevent his return to Italy, which is solely due to the administrative procedures established by the European Union without any assessment of the existence of grounds for asylum. This aspect in particular was not sufficiently and appropriately considered in Hohm's commentary on church asylum and in the evaluation of the decision of the Social Court of Stade, namely within the framework of an individual case review.
Therefore, the prerequisites for granting so-called analogous benefits to the applicant are met. The respondent was accordingly ordered to comply within the framework of preliminary legal protection.
The decision on costs is based on the analogous application of Section 193 of the Social Court Act (SGG).
The following is information on legal remedies.
