DECISION
In the administrative litigation
of Mr. xxx,
applicant,
Authorized representative:
Attorney Sven Adam, Lange Geismarstraße 55, 37073 Göttingen,
against
the Werra-Meißner district, represented by the district committee, Schlossplatz 1, 37269 Eschwege,
respondent,
due to immigration law
The Administrative Court of Kassel – 4th Chamber – decided on September 27, 2018, through
Presiding Judge xxx,
Judge xxx,
and Judge xxx
:
The suspensive effect of the applicant's action of 02.08.2018 against the respondent's decision of 30.07.2018 is ordered.
The respondent shall bear the costs of the proceedings.
The amount in dispute is set at EUR 2,500.
The applicant is granted legal aid for the first instance without any obligation to make installment payments, and attorney Sven Adam, Lange Geismarstr. 55, 37073 Göttingen, is appointed to represent him. The granting of legal aid is subject to the condition that costs which would not have been incurred had an attorney established within the district of the Administrative Court been appointed are not to be reimbursed (§ 166 para. 1 sentence 1 VwGO in conjunction with § 121 para. 3 ZPO).
REASONS
The application,
to order the suspensive effect of the applicant's action against the respondent's decision of 30 July 2018,
The appeal is admissible because the action subsequently brought by the plaintiff against the decision of July 30, 2018, is the appropriate legal remedy in the present case. The Chamber is of the opinion that preliminary proceedings pursuant to Section 68 of the Code of Administrative Court Procedure (VwGO) are not required in this case. According to Section 16a Paragraph 1 of the Hessian Administrative Procedure Act (HessAGVwGO) in conjunction with Item 2.6 of the Annex to Section 16a HessAGVwGO, preliminary proceedings are not required for "decisions in immigration law." The Chamber interprets this provision broadly (see the legal notice of August 23, 2018) to mean all decisions issued in connection with the residence of foreigners in Germany, including allocation decisions under the State Reception Act (LAG).
The application is also well-founded. The contested decision must be assessed in accordance with Sections 49 and 39 Paragraph 1 Sentence 3 of the Administrative Procedure Act (HVwVfG), as the respondent was informed in the legal notice of August 23, 2018. Until the notification of the decision of July 30, 2018, the applicant had been housed in the communal accommodation xxx in xxx since June 19, 2018, pursuant to Section 3 of the Local Government Act (LAG), based on the order of June 19, 2018. The decision of July 30, 2018, by which the applicant was housed in the communal accommodation at xxx in xxx with effect from July 30, 2018, therefore constitutes an amendment to the decision regarding accommodation in the communal accommodation in xxx. In this respect, the respondent was required to exercise discretion. The Chamber leaves open the question of whether the decision of July 30, 2018, regarding the alternative accommodation constitutes a non-favorable administrative act within the meaning of Section 49 Paragraph 1 or a favorable administrative act within the meaning of Section 49 Paragraph 2 of the Hessian Administrative Procedure Act (HVwVfG). According to both provisions ("may"), the respondent would have had to make a discretionary decision and provide reasons for it in accordance with Section 39 Paragraph 1 Sentence 3 of the HVwVfG (Section 53 Paragraph 1 Sentence 2 of the Asylum Act (AsylG), cited by the applicant's representative, does not apply, as the applicant's accommodation is based on the Regional Administrative Court (LAG)). However, the decision contains no discretionary considerations whatsoever. Insofar as the respondent, in his reply to the application dated 16 August 2018, explained the reasons for the applicant's alternative accommodation and made statements regarding the applicant's personal situation with regard to social ties and health problems combined with the possibility of medical care, this does not change the legal assessment, because Section 114 Sentence 2 of the Code of Administrative Court Procedure (VwGO) provides for the supplementation of discretionary considerations in administrative court proceedings, but not for their initial implementation.
The decision on costs follows from Section 154 Paragraph 1 of the Administrative Court Procedure Act (VwGO).
The determination of the value in dispute is based on Sections 1 Paragraph 2 Number 1, 53 Paragraph 2 Number 2 and 52 Paragraph 2 of the Court Costs Act (GKG), whereby in preliminary legal protection proceedings the chamber reduces the default value in dispute according to Number 1.5 of the Schedule of Values in Dispute for Administrative Courts by half.
For the reasons stated above, the application for legal aid was to be granted.
The following is information on legal remedies.
