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 11th Chamber of the Social Court of Kassel decided on July 8, 2019, through the presiding judge, Judge xxx of the Social Court:
By way of preliminary legal protection, the suspensive effect of the objection against the decision of 18 April 2019 is established and at the same time the respondent is ordered to continue to grant the applicant full benefits pursuant to Section 3 of the Asylum Seekers' Benefits Act from 1 May 2019 onwards, in accordance with the decision of 16 November 2017 and any subsequent amending decisions, taking into account benefits already provided.
The respondent shall bear the applicant's necessary extrajudicial costs.
REASONS
I.
The disputed issue in the context of preliminary legal protection is the provisional granting of higher benefits under the Asylum Seekers' Benefits Act (AsylblG), in particular the determination of the suspensive effect of the lodged objection regarding a reduction in benefits under Section 1a AsylblG.
The applicant, born in Eritrea on [date redacted], was granted benefits under Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) by the respondent, as "ongoing benefits under the Asylum Seekers' Benefits Act" from October 10, 2017, "until further notice," by decision dated October 17, 2017. An identical grant was issued by decision dated November 16, 2017, for the period from December 2017.
By letter dated March 29, 2019, the respondent notified the applicant of a planned reduction in benefits pursuant to Section 1a of the Asylum Seekers' Benefits Act (AsylblG) and informed the applicant that, as part of a data comparison with the immigration authorities pursuant to Section 11 Paragraph 3 of the AsylblG, it had been determined that the applicant was already granted international protection within the meaning of Section 1 Paragraph 1 Number 2 of the Asylum Act (AsylG) by another Member State of the European Union (Greece). The prerequisites for a restriction of benefits pursuant to Section 1a Paragraph 4 of the AsylblG were therefore met. According to Section 1a Paragraph 4 Sentence 2 of the AsylblG, those entitled to benefits under Section 1 Paragraph 1 Number 1 or 5 of the AsylblG who have already been granted international protection or a right of residence for other reasons by another Member State of the European Union or a third country participating in the distribution mechanism would only receive benefits to cover their needs for food and accommodation, including heating, as well as personal hygiene and healthcare. It is intended that, from 01.5.2009 onwards, the applicant will only be granted benefits in accordance with Section 1a Paragraph 2 of the Asylum Seekers' Benefits Act (AsylblG).
By decision dated April 18, 2019, the respondent granted the applicant "ongoing benefits under the Asylum Seekers' Benefits Act" for the period from May 2019 to October 31, 2019, i.e., for six months, only reduced in accordance with Section 1a of the Asylum Seekers' Benefits Act. Previously, on March 22, 2018, the Federal Office for Migration and Refugees (BAMF) had rejected the applicant's asylum application as inadmissible, citing the international protection already granted in Greece. In the amended decision of April 18, 2019, the respondent did not explicitly revoke or withdraw the decision of November 16, 2017, or any subsequent amended decisions. Nor did it provide a mathematical explanation of the reduction. Finally, the respondent also failed to identify any procedural legal basis for the amendment, partial revocation, or partial withdrawal effective May 1, 2019.
By letter dated 08.5.2019, the applicant lodged an objection against the decision of 18.4.2019, which has not yet been decided.
In a letter received by the Social Court of Kassel on 17 May 2019, the applicant requests the granting of preliminary legal protection for the continued provision of benefits under Section 3 of the Asylum Seekers' Benefits Act and asserts the illegality of the decision of 18 April 2019.
The respondent considers the decision of April 18, 2019, to be lawful. In his view, the application of Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylblG) does not require any breach of duty as defined in Section 1a Paragraph 2 of the AsylblG. The legislator has regulated two scenarios in Paragraph 4 under which benefits must be reduced if someone enters the federal territory from an EU or third country mentioned in Paragraph 4, without regard to fault. If the conditions of Section 1a of the AsylblG are met, the reduction of benefits is not at the discretion of the authority, but is mandatory. The benefits granted to the applicant ensure his basic physical needs are met. There is no entitlement to higher benefits simply because the original benefit decision of November 16, 2017, was not expressly revoked. This also applies even if the decision of November 16, 2017, were to be considered a continuing administrative act. This could also be revoked implicitly with future effect pursuant to Section 48 Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X), if the eligibility requirements under Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) were no longer met. This occurred with the decision of April 18, 2019. This decision outlined the relevant circumstances that justified the benefit only being granted at the reduced level stipulated in Section 1a of the AsylbLG, effective May 1, 2019. No discretionary power remained. Furthermore, the applicant had been informed of the intended benefit reduction by the hearing notice. He could not have assumed that the earlier, more favorable benefit decision was still valid.
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 application of May 17, 2019, for preliminary legal protection is admissible and well-founded. The present case is analogous to Section 86b Paragraph 1 of the Social Courts Act (SGG). The applicant can achieve his legal objective, namely the (provisional) continuation of higher benefits at the level received up to April 30, 2019, also for the period from May 1, 2019, onwards, analogously to Section 86b Paragraph 1 Sentence 1 No. 2 SGG, by obtaining a declaration that his objection to the decision of April 18, 2019, has suspensive effect, without the need for a further regulatory order pursuant to Paragraph 2. Nevertheless, the operative part of the judgment, in addition to the declaration of suspensive effect, also clearly states the respondent's obligation to grant benefits in accordance with Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) as before, from May 1, 2019.
It is undisputed that the applicant's request, following the previously granted indefinite benefits, is for the continued and unreduced receipt of benefits under Section 3 of the Asylum Seekers' Benefits Act (AsylblG). The objection to the determination of a restriction of the benefit entitlement under Section 1a of the Asylum Seekers' Benefits Act (AsylblG) does not itself have suspensive effect pursuant to Section 86a Paragraph 2 No. 4 of the Social Courts Act (SGG) in conjunction with Section 11 Paragraph 4 No. 2 of the Asylum Seekers' Benefits Act (AsylblG). However, the order granting suspensive effect obligates the respondent to grant higher benefits, since higher benefits had previously been granted indefinitely by the decision of June 20, 2018, and a subsequent amending decision. This only applies, however, if the contested decision, according to the respondent's view, although the decision of 18 April 2019 does not expressly revoke or withdraw the decision of 16 November 2017 (and any subsequent amending decisions), would at least implicitly revoke/withdraw this decision or subsequent amending decisions and thus partially revoke or withdraw the previously unlimited grant of benefits pursuant to Sections 48 and 45 of the Tenth Book of the German Social Code (SGB X).
In the present case, the adjudicating chamber agrees with the Hessian State Social Court and the 12th Chamber of the Kassel Social Court that the benefit periods concerning the granting of benefits prior to the decision of April 18, 2019, constituted indefinite, permanent administrative acts (Hessian State Social Court, decisions of March 23, 2017, S 4 SO 36/17 B ER and L 4 SO 37/17 B ER, as well as Mecklenburg-Western Pomerania State Social Court, decision of June 21, 2018, L 9 AY 1/18 B ER cited according to juris, and decision of the 12th Chamber of the Kassel Social Court of June 13, 2019, 12 AY 10/19 ER). Prior to the decision of April 18, 2019, the respondent's benefit notices granted the applicant benefits "until further notice" and were titled "Notice of the granting of ongoing benefits under the Asylum Seekers' Benefits Act," without any discernible change in subsequent periods. Following the reasoning of the 12th Chamber of the Kassel Social Court in the aforementioned decision of June 13, 2019, the present chamber also assumes that the respondent issued the grant of April 18, 2019, for periods beginning in May 2019, without revoking or withdrawing the previous legally binding and indefinite grant(s) pursuant to Section 9 Paragraph 4 Sentence 1 Number 1 of the Asylum Seekers' Benefits Act in conjunction with Sections 44 et seq. of the German Social Code, Book X (SGB X). This is because a corresponding cancellation/withdrawal provision is not found either in the operative part of the decision dated 18 April 2019 or in the grounds for the decision.
Without the required specificity of the decision of April 18, 2019, it cannot be assumed that the permanent decision of November 16, 2017 (and subsequent amending decisions) was implicitly revoked/withdrawn. Therefore, for this reason alone (among others), the decision of April 18, 2019 must be considered unlawful, and in accordance with the Bavarian State Social Court (decision of March 19, 2019, L 18 AY 12/19 B ER, juris), Section 11 Paragraph 4 No. 1 of the Asylum Seekers' Benefits Act (AsylblG) is not applicable. Consequently, the objection has suspensive effect in accordance with the standard case of Section 86a Paragraph 1 Sentence 1 of the Social Courts Act (SGG).
According to Section 86a Paragraph 1 Sentence 1 of the Social Court Act (SGG), objections and appeals have suspensive effect; according to Sentence 2, this also applies to constitutive and declaratory administrative acts as well as administrative acts with third-party effect. According to Paragraph 2 Number 3 of the provision, for appeals in social security matters concerning administrative acts that reduce or withdraw ongoing benefits, the suspensive effect is waived. The contested decision of April 18, 2019, however, contains neither an express nor an implied provision for the revocation of a previous benefit award, nor is there a case of withdrawal of benefits, and the respondent failed to observe the subsequent suspensive effect of the objection, so that, in accordance with the aforementioned decision of March 19, 2019 (cited according to juris, with further references) and in agreement with the 12th Chamber of the Social Court of Kassel, the suspensive effect had to be established by the Chamber in accordance with Section 86b Paragraph 1 Sentence 1 No. 2 of the Social Court Act.
The adjudicating chamber can therefore leave open the question of whether the contested decision of April 18, 2019, procedurally and substantively constitutes the (lawful) determination of a restriction of entitlement under Section 1a of the Asylum Seekers' Benefits Act (AsylblG) and whether an action is (likely) well-founded. According to the Bavarian State Social Court (loc. cit.), 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, which is required under Section 9 Paragraph 4 Sentence 1 No. 1 AsylblG in conjunction with Sections 44 et seq. of the German Social Code, Book X (SGB X). The legislator also distinguishes in Section 11 Paragraph 4 AsylblG between the revocation of a benefit award (No. 1) and the determination of a restriction of the benefit entitlement under Section 1a AsylblG (No. 2). Therefore, a legally valid determination of a restriction of entitlement for the period from 01.5. – 31.00.2019, which was also accepted by the decision of 18.4.2019, cannot preclude the respondent's entitlement to benefits from the previous legally binding indefinite approval(s).
In line with the 12th Chamber of the Kassel Social Court's decision of June 13, 2019, mentioned above, the present chamber also assumes that even assuming a tacit revocation or withdrawal of previous benefit awards in the decision of April 18, 2019, the applicant's requested preliminary legal protection is also justified as a regulatory order pursuant to Section 86b Paragraph 2 Sentence 1 of the Social Court Act (SGG). This is because the application for interim relief is also justified as a so-called action for performance or regulatory order based on Section 86b Paragraph 2 of the SGG. The decisive factor here is the prospects in the main proceedings. If a claim is manifestly well-founded, the order is generally issued; if it is manifestly unfounded, it is generally rejected.
It must first be noted that the respondent in the present preliminary injunction proceedings cannot rely on a material change within the meaning of Section 48 of the German Social Code, Book X (SGB X) as the legal basis for the implied revocation he claims. According to his own submissions, no such material change occurred after the issuance of the legally binding benefit decisions.
Insofar as the respondent argues that the applicant entered Germany to apply for asylum, even though he had previously been granted international protection by another member state of the European Union (Greece) pursuant to Section 1 Paragraph 1 No. 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, the respondent overlooks the fact that this is not 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 initial grant of full benefits under Section 3 AsylblG was unlawful from the outset within the meaning of Section 45 SGB X, regardless of when the respondent learned of this fact and the rejection of the applicant's asylum application.
Just as the 12th Chamber in the aforementioned decision also assumes that, based on the respondent's own submissions, the previous full benefit payments could only have been revoked under the conditions of Section 45 of the German Social Code, Book X (SGB X). However, the now asserted implied revocation under Section 48 SGB X cannot be clearly reinterpreted as a revocation under Section 45 SGB X. The respondent did not even remotely consider the legal requirements for a revocation under Section 45 SGB X in its deliberations in the decision of April 18, 2019. Precisely because Section 45 SGB X places the decision to revoke benefits at the discretion of the respective benefit provider, the decision of April 18, 2019, issued as a mandatory decision, is unlawful for this reason alone. The aforementioned decision contains no discretionary considerations whatsoever. For the lack of any possibility of reinterpretation, the decision of 18 April 2019, which is only possible on the basis of § 45 SGB X, is also unlawful.
Finally, based on the decision of the Bavarian State Social Court in its ruling of September 17, 2018 (L 8 AY 13/18 B ER, juris, with further references to case law and literature) and in view of the case law of the Federal Constitutional Court (BVerfG, judgment of July 18, 2012, 1 BvL 10/10, 1 BvL 2/11), the adjudicating chamber considers it highly problematic to base the benefit restriction invoked by the respondent, as the wording of Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylblG) shows, solely on membership in a specific group of persons, without taking into account the specific conduct of the benefit recipient. The aforementioned case law clearly establishes that, with regard to 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, only a restrictive interpretation of Section 1a of the Asylum Seekers' Benefits Act (AsylblG) is warranted. This follows from the fact that benefits under Sections 3 et seq. of the AsylblG are already reduced compared to benefits under the German Social Code, Book II (SGB II) and Book XII (SGB XII), and that any further restriction of benefits would result in a further reduction in the level of benefits. The aforementioned decisions therefore also recognize the risk of an impermissible undercutting of the dignified minimum standard of living that must always be guaranteed by the Constitution for a person entitled to benefits. In accordance with the aforementioned decisions, the court therefore assumes that the legislature also intended to sanction misconduct under Section 1a Paragraph 4 of the AsylblG. However, this requires establishing a specific, self-inflicted (immigration law) misconduct, according to which the restriction of benefits under Section 1a of the Asylum Seekers' Benefits Act is justified as a consequence of individual misconduct by a person entitled to benefits.
In this context, the question of whether the applicant entered Germany for the purpose of obtaining social benefits must also be answered affirmatively in order to establish misconduct, as this only results in the legal consequence of a benefit reduction under Section 1a of the Asylum Seekers' Benefits Act (AsylblG) if this was the primary motive for entry and the receipt of social benefits was the sole reason for entry, thereby constituting an abusive intent to enter. No indication of this can be found in the respondent's file. Moreover, the respondent would also bear the burden of proof in this regard. Therefore, in the absence of clear abusive conduct, the reduced benefit under Section 1a of the Asylum Seekers' Benefits Act cannot be readily justified. Particularly in the context of granting preliminary legal protection, the requirements for grounds for and entitlement to an injunction are less stringent when it comes to subsistence benefits. Thus, within the framework of the required balancing of interests, the decision in this case is in favor of the applicant.
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.
