DECISION
In the legal dispute
xxx,
– Applicant –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
City of Göttingen, represented by the Mayor,
Hiroshimaplatz 1-4, 37083 Göttingen
– Respondent –
The 42nd Chamber of the Hildesheim Social Court decided on July 2, 2019, through Judge xxx of the Social Court:
The respondent is ordered by way of preliminary injunction to grant the applicant, provisionally subject to the right of recovery, privileged benefits pursuant to Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with the German Social Code, Book XII (SGB XII) by analogy, for the period from May 31 to July 31, 2019.
The respondent must reimburse the applicant for his extrajudicial costs.
REASONS
The application for an interim injunction, by which the applicant seeks provisionally privileged benefits under Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG), is successful.
Pursuant to Section 86b, paragraph 2 of the Social Courts Act (SGG), the court of first instance may, upon application, issue a preliminary injunction concerning the subject matter of the dispute, provided that a case under paragraph 1 does not apply, if there is a risk that a change in the existing situation could frustrate or significantly impede the applicant's exercise of a right. 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. The court of first instance is the court of first instance.
A prerequisite for issuing the requested regulatory order pursuant to Section 86b, paragraph 2, sentence 2 of the Social Court Act (SGG) is, in addition to the particular urgency of the regulation (ground for the order), a claim by the applicant to the requested regulation (claim for the order). The ground for the order and the claim for the order must be substantiated (Section 86b, paragraph 2, sentence 4 SGG in conjunction with Section 920, paragraph 2 of the Code of Civil Procedure (ZPO)). Insofar as the prospects of success are considered in connection with the claim for the order, the factual and legal situation must be examined not merely summarily, but conclusively (cf. decision of the Federal Constitutional Court of May 12, 2005 – 1 BvR 569/05 –). Moreover, the requirement of establishing credibility relates only to the reduced intensity of the review and the need for a preponderance of probability to demonstrate the factual prerequisites of the claim for an order and the grounds for the order (cf. decisions of the Hessian State Social Court (LSG) of June 29, 2005 – L 7 AS 1/05 ER –, and of February 12, 1997 – L 7 AS 225/06 ER –; Berlit, info also 2005, 3, 8).
The applicant has credibly demonstrated both the claim to and the grounds for the injunction. A preliminary review reveals no evidence of an abuse of rights by attempting to manipulate the duration of the applicant's stay in Germany, although the burden of proof lies with the authority. The subsequent order was ineffective due to lack of notification at the time of the attempted transfer. Whether the stay in Hanover was pursued with the abusive aim of obstructing measures to terminate the applicant's stay must be definitively clarified in the main proceedings or verified by considering potential transfer attempts. In any case, the applicant has provided a plausible reason for the stay, which would not constitute an abuse of rights. Due to the implied granting of benefits, the validity period of the interim injunction had to be limited.
The decision on costs follows analogously from Section 193 Paragraph 1 of the Social Court Act (SGG).
This decision is final and cannot be appealed (§§ 172 paragraph 3 no. 1, 144 paragraph 1 sentence 1 no. 1 SGG).
