DECISION
In the legal dispute
xxx,
Applicant,
Legal representative: Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
Werra-Meißner district, represented by the district committee, legal department 3.1,
Schlossplatz 1, 37269 Eschwege
Respondent,
The 12th Chamber of the Social Court of Kassel decided on June 13, 2019, through its presiding judge, Judge xxx of the Social Court:
- The application received on May 20, 2019, is granted suspensive effect of the objection to the decision of April 18, 2019, and it is determined that the respondent is obligated to continue to provide the applicant with full benefits pursuant to Section 3 of the Asylum Seekers' Benefits Act from May 1, 2019, in accordance with the decision of November 7, 2017, or subsequent amending decisions, taking into account benefits already provided on a calendar basis.
- The respondent must reimburse the applicant for the necessary extrajudicial costs.
REASONS
I.
The parties are in dispute in preliminary legal proceedings regarding the provisional granting of higher benefits under the Asylum Seekers' Benefits Act (AsylbLG), whereby the applicant, born in 1992 and originating from Syria, ultimately opposes a reduction in benefits under Section 1a AsylbLG and claims the restoration of the suspensive effect of his objection filed against it, as well as a regulatory order to the effect that he is to be granted corresponding full benefits by the respondent provisionally until a decision is reached in the main proceedings.
In this respect, the applicant was initially granted full benefits under Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) by decisions dated November 1 and 7, 2017, both entitled "Decision on the granting of ongoing benefits under the AsylbLG," beginning continuously with the month of December 2017 and retroactively from October 24, 2017, "until further notice." However, by a decision dated April 18, 2019, entitled as above, the respondent, after hearing the applicant, granted him reduced benefits under Section 1a of the AsylbLG for the period from May 1, 2019, to October 31, 2019, after no amendment decisions had been issued prior to this, at least according to the file. This was justified by the fact that, as a data comparison – initially not on file – had revealed, the applicant had already been granted international protection in Bulgaria. The applicant's asylum application had already been rejected as inadmissible by the Federal Office for Migration and Refugees in its decision of October 25, 2017, which has been in the respondent's possession since November 20, 2017. The respondent failed to expressly revoke or withdraw the decisions of November 1 and 7, 2017, or any subsequent amending decisions (not on file), in the contested decision of April 18, 2019. Nor did the respondent provide a mathematical explanation of the reduction. Furthermore, no procedural legal basis for the amendment, partial revocation, or partial withdrawal was cited.
The applicant then filed an objection on May 8, 2019, against the decision of April 18, 2019, which, according to the file, has not yet been decided.
At the same time, the applicant filed the present application for preliminary legal protection with the Social Court in Kassel on May 20, 2019, in which he asserts, with appropriate explanation, the illegality of the decision of April 18, 2019, both procedurally and substantively, which the respondent in turn opposes with detailed explanation.
For further details, in particular for the respective further submissions of the parties, reference is made to the contents of the court file as a whole; reference is also made to the administrative files of the respondent, the essential content of which relating to the present application proceedings was likewise the subject of the decision-making.
II.
The application is admissible and, to the extent decided, well-founded in its entirety, as the circumstances of the case already correspond to those of Section 86 Paragraph 1 of the Social Court Act (SGG). The applicants can achieve their legal objective—the (provisional) continuation of higher benefits, in this case at the level of the benefits last received up to April 30, 2019—by analogy to Section 86b Paragraph 1 Sentence 1 No. 2 SGG, simply by establishing the suspensive effect of their objection to the decision of April 18, 2019, without the need for a regulatory order pursuant to Paragraph 2. In this respect, the applications were to be interpreted in accordance with their objective.
Whether an application under Section 86b Paragraph 1 of the Social Court Act (SGG) or one under Paragraph 2 exists must be determined by interpretation in accordance with the applicant's request for legal protection under Section 123 of the SGG, i.e., without being bound by the wording of the application. An application under Section 86b Paragraph 2 of the SGG may be reinterpreted as an application under Section 86b Paragraph 1 of the SGG and vice versa if this corresponds to the applicant's expressed request. In the present case, the applicants' request, following the previous indefinite granting of benefits, is for the continued and full receipt of benefits under Section 3 of the Asylum Seekers' Benefits Act (AsylbLG).
Regardless of the fact that the objection to the determination of a restriction of the entitlement to benefits pursuant to Section 1a AsylbLG does not itself have suspensive effect pursuant to Section 86a Paragraph 2 No. 4 SGG in conjunction with Section 11 Paragraph 4 No. 2 AsylbLG, the obligation of the respondent to grant higher benefits would already arise here with an order of suspensive effect, since higher benefits had previously been granted indefinitely by decision of November 7, 2017 or subsequent amending decisions; However, this would only apply if, according to the respondent's interpretation, the contested decision, although the decision of April 18, 2019 does not expressly revoke or withdraw the decision of November 7, 2017, at least contained a tacit revocation/withdrawal of this decision or subsequent amending decisions, i.e., either a partial revocation or partial withdrawal of this previously indefinite grant of benefits pursuant to Sections 48 and 45 of the German Social Code, Book X (SGB X).
This is primarily because the benefit award notices issued before the decision of April 18, 2019, concerning the granting of benefits, are consistent with the case law of this Chamber and also that of the Hessian State Social Court from the perspective of a reasonable recipient of the notices, which is the sole basis for consideration here (see, among others, Kassel Social Court, judgment of December 17, 2008, S 12 SO 273/05; decision of November 23, 2017, S 12 SO 32/17 ER; court order of January 15, 2019, S 12 SO 15/18; Hessian State Social Court, decisions of March 23, 2017, L 4 SO 36/17 B ER and L 4 SO 37/17 B ER; similarly, for example, Mecklenburg-Western Pomerania State Social Court, decision of June 21, 2018, L 9 AY 1/18 B). ER, juris) even contained indefinite, ongoing administrative acts. The Hessian State Social Court (as before) held this view, among other reasons, because the decisive factor here is how the recipient, from an objective perspective, could and should have understood the content of a decision (so-called objective recipient's perspective). In this respect, in addition to the wording of the specific administrative act in question, other circumstances are also relevant for the interpretation, such as the content of previous decisions, other documents, or even the actual conduct of the parties involved. Not only do the aforementioned decisions ultimately "certify" the applicant's entitlement to benefits until further notice, but the respondent also uses the terminology customary for administrative acts with continuing effect in its headings. In this respect, the initial decision mentioned above is already headed "Decision on the granting of ongoing benefits under the Asylum Seekers' Benefits Act," without this having changed in any subsequent periods. In contrast, these decisions expressly did not contain any supplementary regulations or other instructions that could contradict such an interpretation – such as the statement that the decision only applies to the periods for which benefits are actually paid or the specifically named months.
It must therefore be concluded that the respondent granted the benefit on April 18, 2019, for the period beginning May 1, 2019, without revoking or withdrawing the previous legally binding and indefinite benefit(s) pursuant to Section 9 Paragraph 4 Sentence 1 Number 1 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Sections 44 et seq. of the German Social Code, Book X (SGB X). No corresponding revocation or withdrawal provision is found either in the operative part of the decision of April 18, 2019, or in its grounds.
At the same time, due to the lack of specificity in the decision of April 18, 2019, there is also no implied revocation/withdrawal of the decision of November 7, 2017, or subsequent amending decisions, which—to the extent that it leads to the justification of the present application—renders the decision of April 18, 2019, unlawful, among other reasons, and also means that, as the Bavarian State Social Court (decision of March 19, 2019, L 18 AY, 12/19 B ER, juris) ruled, Section 11 Paragraph 4 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG) does not apply in the first place, and thus, in accordance with the general rule, Section 86a Paragraph 1 Sentence 1 of the Social Courts Act (SGG) already has suspensive effect.
Until January 1, 2002, the authority of social courts to issue preliminary injunctions in cases other than those expressly stipulated in the Social Courts Act (SGG) was derived directly from Article 19, Paragraph 4 of the Basic Law (GG) (see BVerfGE 46, p. 166). However, preliminary injunctions were generally not permitted to anticipate the final decision. Only in exceptional cases, in the interest of effective legal protection, could it be necessary to anticipate the decision on the merits, if legal protection would otherwise be unattainable and this would be unreasonable for the applicant.
The prerequisite for granting preliminary legal protection was that the affected party faced serious and unreasonable disadvantages that could not be averted by other means and that a decision on the merits would likely no longer be able to remedy, or only partially remedy. This applied at least to so-called "action proceedings," i.e., proceedings in which a citizen challenged the omission or refusal of a requested official act. The same applied, however, to so-called "appeal proceedings," in which a citizen claimed that their rights had been violated by a detrimental measure taken by public authorities. According to the established case law of the Chamber, preliminary legal protection in "appeals" could, in accordance with the fundamental principle of Section 80 Paragraph 4 Sentence 3 of the Code of Administrative Court Procedure (VwGO), generally be granted if there were serious doubts about the legality of an administrative act, i.e., if the success of the legal dispute in the main proceedings, i.e., in subsequent legal proceedings, was at least as likely as its failure, and if the enforcement of a contested administrative act would have resulted in an unreasonable hardship for the applicant that was not predominantly justified by public interests (cf. in this regard the decision of the Hessian State Social Court of March 9, 2000, L 1 KR 226/00 ER, which, in addition to the prospects of success in the main proceedings, required the existence of significant disadvantages that made waiting for the decision in the main proceedings unreasonable). Furthermore, in "actions concerning performance", the focus was to be placed on the risk that a change in the existing state could frustrate or significantly impede the realization of the applicant's right, in accordance with Section 123 of the Administrative Court Procedure Act. Furthermore, preliminary injunctions were also permissible to regulate a provisional state of affairs with regard to a disputed legal relationship if such regulation appeared necessary, especially in the case of ongoing legal relationships, to avert significant disadvantages, prevent imminent violence, or for other reasons (see, in general, Hessian State Social Court, decision of July 29, 1987, L 8 Kr 362/87 A with numerous further references, and decision of November 11, 1992, L 6 Ar 461/92 A in info-also 1993, pp. 59 et seq.; State Social Court for the State of North Rhine-Westphalia, decision of August 30, 1990, L 3 S 42/90 in info-also 1991, pp. 74 et seq.; Meyer-Ladewig, SGG, § 97 para. 20 et seq.; Timme, Der einstweilige Rechtsschutz in der Rechtsprechung der Landessozialgerichte [Preliminary Legal Protection in the Case Law of the State Social Courts]). NZS, 1992, 91 ff.).
Since January 2, 2002, preliminary legal protection has been expressly regulated in the SGG (Social Code, Book X), whereby the above principles continue to be observed.
In this respect, Section 86a Paragraph 1 Sentence 1 of the Social Court Act (SGG) initially stipulates that objections and appeals have suspensive effect, which, according to Sentence 2, also applies to constitutive and declaratory administrative acts as well as administrative acts with third-party effect. However, according to Paragraph 2 No. 1, the suspensive effect is waived for decisions concerning insurance, contribution, and assessment obligations, as well as for the demand for contributions, assessments, and other public charges, including any ancillary costs. Likewise, the suspensive effect is waived, for example, according to No. 3, for appeals in social security matters concerning administrative acts that reduce or withdraw ongoing benefits.
Since the contested decisions, with the aforementioned statements, contain neither an express nor an implied provision for the revocation of a previous benefit award, and since the case of a withdrawal of benefits is also not present, and the respondent disregards the subsequent suspensive effect of the objection, the Chamber, in accordance with the Bavarian State Social Court (decision of March 19, 2019, L 18 AY, 12/19 B ER, juris, mzwN), is also of the opinion that the suspensive effect must be established by the Chamber in analogous application of Section 86b Paragraph 1 Sentence 1 No. 2 of the Social Court Act (SGG).
Whether the contested decision of April 18, 2019, simultaneously constitutes a (lawful) determination of a restriction of entitlement under Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) in both procedural and substantive terms, and whether an action against it is (likely) justified in this respect, could, in light of the foregoing, leave open the question posed by the Bavarian State Social Court (as before). This is because the mere determination of a restriction of entitlement under Section 1a AsylbLG does not replace the revocation of a benefit award issued for the same period, as required under Section 9 Paragraph 4 Sentence 1 Number 1 AsylbLG in conjunction with Sections 44 et seq. of the German Social Code, Book X (SGB X). This follows, as the Bavarian State Social Court (as before) already stated, from the fact that the determination of a restriction of entitlement under Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) can logically only have a declaratory regulatory effect, and the legislator distinguishes in Section 11 Paragraph 4 of the AsylbLG between the revocation of a benefit award (No. 1) and the determination of a restriction of the benefit entitlement under Section 1a of the AsylbLG (No. 2). Therefore, a determination of a restriction of entitlement for the period from May 1 to October 31, 2019, lawfully made by the decision of April 18, 2019, would not preclude the respondent's benefit entitlement based on the previous legally binding, indefinite award(s).
Assuming that the decision of April 18, 2019, contains at least a tacit revocation or withdrawal of the previous approval(s), it also proves to be unlawful in all other respects, so that instead of the determination made, the present application would also be justified as a regulatory order pursuant to Section 86b Paragraph 2 Sentence 1 of the Social Court Act (SGG).
Pursuant to Section 86b Paragraph 1 Sentence 1 No. 1 of the Social Court Act (SGG), the court of first instance may, upon application, order immediate enforcement in whole or in part in cases where an objection or appeal has suspensive effect. Pursuant to Sentence 1 No. 2, the court may also order immediate enforcement in whole or in part in cases where an objection or appeal does not have suspensive effect, and pursuant to No. 3, reinstate immediate enforcement in whole or in part in the cases specified in Section 86a Paragraph 3 of the SGG. If the administrative act has already been enforced or complied with at the time of the decision, the court may, pursuant to Section 86b Paragraph 1 Sentence 2 of the SGG, order the revocation of enforcement. According to Sentence 3, the reinstatement of suspensive effect or the order of immediate enforcement may be subject to conditions or limited in time. Furthermore, according to Sentence 4, the court of first instance may, upon application, amend or revoke the measures at any time. Unless a case under paragraph 1 applies, the court of first instance may, upon application, issue a preliminary injunction concerning the subject matter of the dispute pursuant to Section 86b, paragraph 2, sentence 1 of the Social Court Act (SGG), if there is a risk that a change in the existing state of affairs could frustrate or significantly impede the applicant's exercise of a right. According to sentence 2, preliminary injunctions are also permissible to regulate a provisional state of affairs with regard to a disputed legal relationship if such regulation appears necessary to avert substantial disadvantages. Pursuant to Section 86b, paragraph 4 of the SGG, the court then decides by order.
Assuming at least a tacit revocation/withdrawal, the merits of the applicant's application would then be determined, in accordance with the further explanations above, as a so-called action or regulatory order based on the above explanations, pursuant to Section 86b Paragraph 2 of the Social Court Act (SGG).
The chamber's decision would therefore primarily be based on the prospects of success in the main proceedings. If a claim is clearly well-founded, the order is generally issued; if it is clearly unfounded, it is generally rejected.
If, in this particular case, neither of the two prerequisites is obviously met, a balancing of interests must be carried out within the bounds of discretion. In preliminary injunction proceedings, the courts must, when interpreting the applicable provisions, take into account the particular importance of the fundamental rights affected and the requirements of effective legal protection, and in particular consider the consequences of denying preliminary legal protection. The more severe the resulting burdens and the lower the likelihood that they can be reversed if the plaintiff prevails in the main proceedings, the less the interest in a preliminary ruling may be disregarded. In this respect, it suffices in such cases that, upon a preliminary review of the facts and the law, there are grounds to believe that a claim exists for the requested performance (claim for an injunction).
This is because, according to the decisions of the Federal Constitutional Court (BVerfG), including those of November 22, 2002, 1 BvR 1586/02 and March 19, 2004, 1 BvR 131/04, the interest in a preliminary ruling or safeguarding of the asserted legal position may not be disregarded the more severe the burdens on the affected party that are associated with the denial of preliminary legal protection. Article 19 Paragraph 4 of the Basic Law (GG) requires preliminary legal protection in this respect, at least in cases concerning enforcement measures, if, without it, serious and unreasonable disadvantages arise that cannot be averted in any other way and that the decision on the merits would no longer be able to remedy (see BVerfGE 79, 69 <74>; 94, 166 <216>). If courts base their decisions not on a balancing of conflicting interests but on the prospects of success in the main proceedings, they are obligated under Article 19, Paragraph 4, Sentence 1 of the Basic Law to justify the denial of preliminary legal protection on a thorough examination of the facts and the law. This also means that the examination of the prospects of success in the main proceedings must include questions of fundamental rights protection if there is cause to do so (see the decision of the Second Chamber of the First Senate of the Federal Constitutional Court of July 25, 1996, NVwZ 1997, p. 479).
The Hessian State Social Court (decision of March 21, 2007, L 7 AY 14/06 ER, with further references) held that the claim for an injunction and the grounds for the injunction do not exist in isolation; rather, they are interrelated in that the requirements for the claim for an injunction decrease with increasing urgency or severity of the threatened disadvantage (the grounds for the injunction), and vice versa. This is because the claim for an injunction and the grounds for the injunction form a dynamic system due to their functional connection.
If the main action is manifestly inadmissible or unfounded, the application for a preliminary injunction must generally be rejected, regardless of the grounds for the injunction, because no right worthy of protection exists. If, however, the main action is manifestly well-founded, the requirements for the grounds for the injunction are reduced. As a rule, the application for a preliminary injunction should then be granted, even though a ground for the injunction cannot be entirely dispensed with in this case. If the outcome of the main proceedings is uncertain, for example, if a complete clarification of the facts and the law is not possible in the expedited proceedings, a decision must be made by weighing the consequences. This weighing regularly favors the citizen if their right, derived from the constitutional principle of the protection of human dignity in conjunction with the social welfare principle, to lead a life of human dignity would be jeopardized. In this respect, the applicant's fundamental rights must be comprehensively considered in the balancing of interests. Particularly in cases involving claims aimed, for example, at guaranteeing a socio-cultural minimum standard of living as an expression of the constitutionally protected human dignity (Article 1, Paragraph 1 of the Basic Law in conjunction with the social welfare principle), a potentially existing claim for an injunction, especially if it is intended to achieve a level of benefit indispensable for socio-cultural participation and would have to be granted for a period that is not merely short-term, must generally be provisionally satisfied if the factual or legal situation cannot be fully clarified in expedited proceedings. This is because, within the framework of the required balancing of interests, the interest of the benefit provider in avoiding unjustified benefits must regularly yield to the safeguarding of the socio-cultural minimum standard of living that is currently attainable for the applicant (see, among others, the decisions of the Hessian State Social Court of July 27, 2005, L 7 AS 18/05 ER and of June 19, 2008, L 7 AS 32/08 B ER).
However, the issuance of a preliminary injunction must also be necessary to avert significant disadvantages; i.e., there must be an urgent emergency requiring an immediate decision (cf. Hess. LSG, decisions of 22 September 2005, L 9 AS 47/05 ER, of 7 June 2006, L 9 AS 85/06 ER, of 30 August 2006, L 9 AS 115/06 ER, of 16 November 2007, L 9 SO 105/07 ER, of 27 November 2007, L 9 AS 358/07 ER, of 14 February 2008, L 9 SO 134/07 ER).
To all of this, it should first be noted that the respondent, in the present application proceedings, bases his claim – now for the first time – for implied revocation (not withdrawal) on a material change within the meaning of Section 48 of the German Social Code, Book X (SGB X). However, according to his own submissions, this is unjustified, as he himself argues that no such material change after the issuance of the aforementioned legally binding decision(s) granting the benefit.
When the respondent argues that the applicant entered Germany to apply for asylum, even though he previously been granted international protection by another member state of the European Union (Bulgaria) pursuant to Section 1 Paragraph 1 Number 2 of the Asylum Seekers' Benefits Act (AsylbLG), which continues to apply, and thus the requirements of Section 1a AsylbLG are met, and that the reduction of benefits is not at the discretion of the authority but mandatory, he overlooks the fact that this does not constitute a case under Section 48 of the German Social Code, Book X (SGB X), but at most one under Section 45 SGB X. According to the respondent's own statements, the full grant of benefits under Section 3 AsylbLG was therefore unlawful from the outset within the meaning of Section 45 SGB X, regardless of the fact that, according to his further statements, the respondent only learned of this situation in March 2019.
Based on the respondent's own submissions, the previous full benefit payments could only be revoked under the conditions of Section 45 of the German Social Code, Book X (SGB X), without the now asserted implied revocation under Section 48 SGB X being reinterpreted as a corresponding revocation under Section 45 SGB X. This is because such a revocation is subject to numerous additional legal requirements, which the respondent did not even examine or consider in any way before issuing the decision of April 18, 2019. As the respondent's submissions in the present application proceedings demonstrate, the decision of April 18, 2019, is therefore solely and unlawfully a mandatory decision, even though Section 45 SGB X grants the respective benefit provider discretion in such revocation decisions, without the aforementioned decision itself containing any discretionary considerations. Therefore, it cannot be reinterpreted as a revocation decision pursuant to Section 45 of the German Social Code, Book X (SGB X), even for this reason alone, as it is already unlawful.
Furthermore, contrary to the respondent's assertion – although this too could remain undecided – the prerequisites for granting only reduced benefits under Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) are not met here, neither on the basis of Section 1a Paragraph 4 Sentence 2 of the AsylbLG nor the prerequisites for a reduction of benefits pursuant to Section 1a Paragraph 1 of the AsylbLG in conjunction with Section 1 Paragraph 1 Number 5 of the AsylbLG, according to which beneficiaries under Section 1 Paragraph 1 Numbers 4 and 5 and beneficiaries under Section 1 Paragraph 1 Number 6, insofar as they are family members of the persons mentioned in Section 1 Paragraph 1 Numbers 4 and 5 who have entered the area of application of this Act in order to obtain benefits under this Act, receive benefits under this Act only to the extent that this is absolutely necessary in the individual case according to the circumstances.
Pursuant to Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG), persons entitled to benefits under Section 1 Paragraph 1 Number 1 or 5, for whom, in deviation from the standard jurisdiction under Regulation (EU) No. 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in a Member State by a third-country national or stateless person (OJ L 180, 29.6.2013, p. 31), another Member State or a third country participating in the distribution mechanism and applying Regulation (EU) No. 604/2013 is responsible following a distribution by the European Union, only receive benefits pursuant to Paragraph 2. This also applies to persons entitled to benefits under Section 1 Paragraph 1 Number 1 or 5 who have already been granted international protection by another Member State of the European Union or a third country participating in the distribution mechanism within the meaning of Sentence 1. A right of residence has been granted for other reasons, provided that the international protection or the right of residence granted for other reasons continues to exist. The purpose of this regulation is to limit secondary migration, particularly from other member states of the European Union to Germany.
In its decision of September 17, 2018, L 8 AY 13/18 B ER, juris, with further references to case law and literature, the Bavarian State Social Court (decision of September 17, 2018, L 8 AY 13/18 B ER, juris, with further references to case law and literature) initially considers it problematic, in light of the case law of the Federal Constitutional Court (BVerfG, judgment of July 18, 2012, 1 BvL 10/10, 1 BvL 2/11) and its implications, as well as taking into account the previous supreme court case law on the constitutionality of sanctions in the area of the SGB II and the AsylbLG, to base a restriction of benefits, as the wording of Section 1a Paragraph 4 Sentence 2 AsylbLG initially suggests, solely on membership in a specific group of persons, without considering the specific conduct of the benefit recipient. In this respect, reference should be made to the case law on Section 1a of the Asylum Seekers' Benefits Act (AsylbLG), according to which, in view of the fundamental right to a dignified minimum standard of living under Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1 of the Basic Law (GG) and the principle of proportionality, a restrictive interpretation of Section 1a AsylbLG is required. The requirement of a restrictive interpretation follows in particular from the fact that benefits under Sections 3 et seq. AsylbLG are already reduced compared to benefits under the German Social Code, Book II (SGB II) and Book XII (SGB XII), so that any further restriction of benefits would result in a further reduction in the level of benefits. An overly generous application of Section 1a AsylbLG would risk an impermissible undercutting of the dignified minimum standard of living that must always be guaranteed by the Constitution for benefit recipients and their family members. The systematic placement of this benefit restriction within Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) suggests that the legislator intended to sanction misconduct under Section 1a Paragraph 4 of the AsylbLG. The underlying principle for all benefit restrictions in this provision is a specific, self-inflicted (immigration law) misconduct, which triggers the benefit restriction. All benefit-restricting circumstances under Section 1a of the AsylbLG are thus linked to individual misconduct by benefit recipients. That the legislator intended this in all scenarios is also demonstrated by the wording of Section 14 Paragraph 2 of the AsylbLG, which provides for an extension of the benefit restriction in the case of "continuing breach of duty." Therefore, for the benefit restriction under Section 1a Paragraph 4 Sentence 2 of the AsylbLG to apply, it must also be required that the entry into the country or the failure to leave constitutes misconduct on the part of the benefit recipient.
Inextricably linked to the existence of such misconduct is the question of whether the applicant re-entered Germany for the purpose of obtaining social benefits. This is because a reduction in benefits under Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) only results in the legal consequence of benefit reduction if this was the primary motive for entry, meaning that receiving social benefits was the sole reason for (re-)entry, thus constituting the abusive intent to enter. It is insufficient that the receipt of benefits is merely pursued incidentally or accepted as a consequence. The mere "connection between the intention to enter (...) and the receipt of benefits" is not enough for this assumption. Instead, a direct connection is required, and if the intention to enter differs in purpose, the latter must be of a decisive nature. This latter point follows from the means-ends relationship of the provision, and merely accepting the purpose is insufficient. In this respect, too, a subjective abuse is required, i.e., individual, unlawful (mis)conduct in the sense of a subjectively abusive intention to enter the country.
However, the files contain no evidence to support this. Furthermore, the burden of proof would lie with the respondent.
Therefore, there is also a complete lack of any abusive conduct that would justify granting only reduced benefits under Section 1a of the Asylum Seekers' Benefits Act (AsylbLG). This is all the more true since, as explained above, in the case of subsistence-level benefits such as those provided here, the requirements for the grounds for the order and the entitlement to the order are less stringent, and this, within the framework of the balancing of interests required by the court according to the aforementioned principles, falls in favor of the respondent.
Furthermore, the urgency and grounds for the order also arise from the fact that the applicant would otherwise have to live below the (socio-cultural) subsistence level for a longer period of time (see also Bavarian State Social Court, decision of September 17, 2018, L 8 AY 13/18 B ER, juris).
The entitlement to benefits under Sections 1 and 3 of the Asylum Seekers' Benefits Act (AsylbLG) is not in dispute between the parties. Therefore, the applicant would be entitled to continued benefits under Section 3 AsylbLG to the extent determined, at least from the date the application was received by the court, to the extent already provided for concurrent periods, particularly since the respondent disregards the continued validity of the aforementioned indefinite benefit grant under Section 3 AsylbLG, until a decision is reached in the main proceedings. This entitlement would be offset against benefits already provided for concurrent periods.
The application was therefore to be granted in its entirety for a variety of reasons.
The decision on costs follows § 193 SGG.
The following is information on legal remedies.
