DECISION
L 8 AY 7/19 B ER
S 42 AY 10/19 ER Hildesheim Social Court
In the complaint process
xxx,
– Applicant and complainant –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
City of Göttingen, Law Department,
Hiroshimaplatz 1 – 4, 37083 Göttingen
– respondent and respondent –
The 8th Senate of the Lower Saxony-Bremen State Social Court decided on July 9, 2019 in Celle by judges xxx and xxx and judge xxx:
In response to the applicant's complaint, the decision of the Hildesheim Social Court of February 12, 2019, insofar as it rejected the application for an interim order, will be revoked.
By way of an interim order, the respondent is obliged to provide the applicant with support from February 1, 2019 until a final decision is made in the legal proceedings pending at the Hildesheim Social Court - S 42 AY 19/19 -, - S 42 AY 32/19 -, - S 42 AY 63/19 - and - S 42 AY 82/19 - or regarding the approval of benefits in favor of the applicant in accordance with the AsylbLG for the period from June to December 2019, but no later than December 31, 2019, provisional benefits in accordance with Section 2 Paragraph. 1 AsylbLG in conjunction with SGB XII, taking into account benefits already approved for this period. Otherwise, the urgent application is rejected.
The respondent must reimburse the applicant's out-of-court costs for the first and second instance proceedings.
The application for approval of legal aid is rejected.
REASONS
I
The dispute is about the amount of benefits to be provisionally granted under the AsylbLG for the period from the end of January 2019, in particular the legality of a limitation of claims according to Section 1a Paragraph 3 AsylbLG.
The applicant, who says he was born on xxx, claims to be a Lebanese citizen, entered Germany illegally without personal documents and sought asylum in Oldenburg at the beginning of November 2015. After a stay in Friedland, it was distributed to the respondent; An application for relocation to Oldenburg to a brother living there was unsuccessful in November 2016. The Federal Office for Migration and Refugees (BAMF) rejected the asylum application in a (final) decision dated April 22, 2017. Since then, the applicant has had a toleration permit (which has been extended several times) because he does not have a passport.
In response to the respondent's (first) request from the immigration office to obtain a home passport on July 24, 2017, the applicant submitted an information sheet from the Embassy of Lebanon in Berlin to the immigration file, on which his visit on August 10, 2017 was documented and as a prerequisite for the issuance of a national passport, among other things the presentation of a valid residence permit for Germany is listed (see point 7 of the information sheet). Furthermore, the applicant was repeatedly asked (on August 17th, November 10th and December 19th, 2017) to present a home passport (or register extract from Lebanon) to the immigration office. From August to December 2018, the applicant stated at the almost weekly appointments for the issuance of the tolerated permits that he did not submit the documents required of him, did not sign an application for a replacement passport and did not have any documents that would credibly prove his identity.
After receiving basic benefits in accordance with Section 3 AsylbLG and so-called analogous benefits in accordance with Section 2 Paragraph 1 AsylbLG, most recently approved through a payment of €377.60 for the month of September 2017 (including deduction for household energy: €31.40), and hearing the applicant about a restriction of entitlement, from October 1, 2017, in addition to the granting of accommodation and heating as benefits in kind, the respondent only granted him limited (cash) benefits in the monthly amount of €180.49 in accordance with Section 1a (3) AsylbLG.
On September 25, 2018, the applicant objected to the granting of benefits under the AsylbLG "in the current period" and limited the subject matter of the procedure to the period from November 2017 to October 2018 (letter from the applicant's legal representative dated October 17, 2018, p. 261 d.VA). With an objection dated January 25, 2019, he also attacked the granting of benefits from November 2018.
Also on January 25, 2019, the applicant requested provisional benefits under the AsylbLG at the Social Court (SG) Hildesheim by way of interim legal protection, taking into account the legal opinion of the court, in the statutory amount, or alternatively, an order for the suspensive effect of the objection of September 25, 2018 against the decision the respondent dated September 28, 2017. The SG rejected the urgent application by decision of February 12, 2019 on the grounds that the applicant had violated his ID obligations under Section 48 Paragraph 3 of the Residence Act and that this was the reason for the non-implementation of the measures to end the stay. A time limit on the limitation of claims was not necessary in this individual case because of the implied approval of benefits.
The applicant's complaint dated February 14, 2019 is directed against this decision. During the urgent proceedings, the respondent rejected the objection of September 25, 2018 against the granting of benefits for the period from November 2017 to October 2018 and the objection of January 25, 2019 against that from November 2018 through separate objection notices of February 13, 2019. The applicant filed a timely action against these (two) decisions with the SG (- S 42 AY 20/19 -, - S 42 AY 19/19 -) and limited the subject matter of the second lawsuit to the period from November 2018 to February 2019 (see statement of claim dated February 26, 2019). As of March 2019, the applicant continued to receive limited benefits in accordance with Section 1a Paragraph 3 AsylbLG, namely for March 2019 in the amount of €179.73 by decision dated February 15, 2019 in the form of the objection decision dated February 20, 2019 (lawsuit pending at the SG: - S 42 AY 32/19 -), for April 2019 by decision of April 5, 2019 in the form of the objection decision of April 25, 2019 (lawsuit pending at the SG: - S 42 AY 63/19 -) and for May 2019 by payment of 179, 73 € (a lawsuit is also pending against the objection decision issued on May 10, 2019: - S 42 AY 82/19). By decision dated June 6, 2019, the respondent granted the applicant benefits - without any change in amount - for January and February 2019 of €180.49 each and for March to June 2019 in the monthly amount of €179.73. According to the files (as of June 2019), the court does not know whether the applicant has objected to this. No decision has yet been made on the applicant's application from May 2019 for approval to move into a shared apartment with his pregnant girlfriend (expected due date in December 2019), a German citizen; In this respect, the applicant has acknowledged paternity.
In the appeal proceedings, the applicant further claims that he is still unable to meet the Lebanese Embassy's requirements for issuing a national passport, in particular the presentation of a valid residence permit, and that a limitation of entitlement in accordance with Section 14 Paragraph 1 AsylbLG must be limited in time. To substantiate the urgency of the matter, he submitted an affidavit dated June 18, 2019 and current statements from his checking account to the court file.
The respondent considers the SG's decision to be correct and claims that the applicant expressly refuses any participation in the residence procedure. The applicant still has relatives in Lebanon through whom or through the involvement of a trusted lawyer he could obtain identification documents in order to fulfill his obligation to cooperate in some way.
Because of the further details of the facts and the status of the dispute, reference is made to the content of the trial file, the court files consulted by the SG (- S 42 AY 19/19 -, - S 42 AY 20/19 - and - S 42 AY 32/19 -) as well as the respondent's benefit and immigration files (4 volumes and 3 binders).
II.
The submitted in due form and on time (§ 173 SGG) and otherwise admissible, with a monthly complaint of over € 175.00 also admissible (§ 172 Para. 3 No. 1 SGG in conjunction with § 144 Para. 1 Sentence 1 No. 1 SGG; cf. for the determination of the value of the subject matter of the complaint within the meaning of Section 144 Paragraph 1 Sentence 1 No. 1 SGG in the procedure for interim legal protection regarding ongoing benefits to secure a living, Senate resolution of December 12, 2016 - L 8 AY 51/16 B ER - juris Rn. 8) Complaint is justified. The SG wrongly rejected the application for an interim order.
The urgent application is aimed at issuing an interim order within the meaning of Section 86b (2) SGG and is admissible as such. It is not to be judged in accordance with Section 86b Paragraph 1 SGG, according to which the court can, among other things, order the suspensive effect in whole or in part in cases in which an objection or an action for annulment does not have a suspensive effect (No. 2). By ordering the suspensive effect of the lawsuits (- S 42 AY 19/19 - and - S 42 AY 20/19 -) against the restriction of benefits that has been ordered since October 2017 in accordance with Section 1a Paragraph 3 AsylbLG, the applicant would not achieve his legal protection goal because the granting of benefits in accordance with Section 2 Paragraph 1 AsylbLG until September 2017 cannot extend to subsequent periods; It was not granted through a permanent approval (so-called permanent administrative act), but rather for a limited period of time month by month, for the first time for the months of March and April 2017 by notice of April 4, 2017 and subsequently by payment of the benefit amount (see the confirmation of receipt p. 81, 93, 96, 99, 101, 118, 125 and 131 of the benefit file; on the so-called implied approval through payment of the benefit, see for example BSG, judgment of June 17, 2008 - B 8 AY 11/07 R - juris Rn. 10).
According to Section 86b Paragraph 2 Sentence 2 SGG, interim orders are permissible to regulate a provisional situation with regard to a disputed legal relationship if such a regulation appears necessary to prevent significant disadvantages. The prerequisite for the issuance of an interim injunction is that an asserted right exists against the respondent (right to an injunction) and that the applicant would suffer significant disadvantages without the issuance of the requested injunction (reason for the injunction). Both the sufficient probability of a material claim to benefits given in the matter and the urgency of the regulation to avert significant disadvantages must be made credible (§ 86b para. 2 sentence 4 SGG in conjunction with § 920 para. 2 ZPO).
A claim to an order is given if the applicant is entitled to the main claim to be secured with a preponderance of probability, i.e. if a preliminary assessment of the main proceedings after a summary examination shows that it is overwhelmingly probable that the applicant will prevail in the main case. According to the case law of the Federal Constitutional Court (BVerfG, decision of May 12, 2005 - 1 BvR 569/05 - NVwZ 2005, 927), decisions in interim legal protection proceedings for challenges and (as here) enforcement matters may in principle be based on both a consideration of the consequences and a summary examination the chances of success are mainly supported. However, Article 19 Paragraph 4 of the Basic Law imposes special requirements on the structure of the expedited procedure if, without the granting of interim legal protection, serious and unreasonable impairments that cannot otherwise be avoided can arise and could no longer be remedied by the main proceedings. In such a case, according to the aforementioned BVerfG decision, if the courts want to be guided by the prospects of success in the main case, they must examine the factual and legal situation not only summarily but conclusively. If the courts decide to make a decision on this basis, they must not exceed the requirements for the applicant for the urgent procedure to provide credible evidence; Questions relating to the protection of fundamental rights must be included. However, if the court is unable to fully clarify the factual and legal situation in expedited proceedings, a decision must be made based on a consideration of the consequences. In this case too, the applicant's fundamental rights concerns must be carefully considered. This is particularly true when it comes to preserving human dignity. The courts must prevent a violation of this fundamental rights guarantee, even if it only appears possible or only lasts temporarily (BVerfG, ibid., cf. also the Senate decisions of April 2, 2008 - L 8 SO 11/08 ER -, May 13, 2008 - L 8 SO 36/08 ER -, October 22, 2013 – L 8 SO 241/13 B ER -, February 20, 2014 – L 8 AY 98/13 B ER – juris Rn. 14 and most recently from June 6, 2019 – L 8 AY 17/19 B ER -).
According to these criteria, the Senate decides on the basis of a consideration of the consequences, because according to the current state of affairs and the dispute, both in legal and factual terms, the amount of the applicant's entitlement to benefits under the AsylbLG cannot be assessed with certainty without further investigation and in this individual case The task of the interim legal protection procedure (in the second instance) is not to clarify the facts in detail.
The dispute between the parties that is subject to an interim order concerns, on the one hand, - for the months of January and February 2019 - the benefit approval for November 2018 to February 2019, which is in dispute in the lawsuit pending before the SG - S 42 AY 19/19 - due to the express time limit on the subject matter of the proceedings. In response to the applicant's objection of January 25, 2019, the respondent examined the (initial) decision of September 28, 2017 despite the expiry of the one-month appeal period (Section 84 Paragraph 1 Sentence 1 SGG) and the granting of higher benefits for the period rejected from November 1, 2018. The decision dated September 28, 2017 is to be interpreted as an unlimited benefit decision (so-called permanent administrative act) according to general principles (§§ 133, 157 BGB). A permanent administrative act exists if its regulatory content is intended to continue to have an effect in the future based on its legal effects from the time the administrative act is issued, i.e. extends beyond a one-off design of the legal situation to a certain specific or indefinite period of time in the future (for the permanent administrative act in social assistance see for example BSG, judgment of February 2, 2012 - B 8 SO 5/10 R - juris para. 21). According to Sections 133 and 157 of the German Civil Code (BGB), the decisive factor in assessing the question of the period for which benefits should be granted is how a recipient must understand the declaration based on the circumstances of the individual case (BSG, judgment of June 17, 2008 - B 8/9b AY 1/07 R – juris para. 11). An approval that extends beyond the specifically named service period can usually only be accepted if the approval was granted without specifying an end date “from” a specific date, with effect from a specific date “for the future” or “until further notice” or the circumstances of the case, for example from previous benefit notifications, indicate that the recipient of the benefit is aware of the continued effect of the approval (established case law of the Senate, cf. judgment of February 25, 2016 - L 8 AY 85/13 - and Senate resolution of March 10, 2016 - L 8 SO 322/15 B ER - as well as from April 6, 2017 - L 8 SO 96/17 B ER -).
Based on this, the sentence of the decision dated September 28, 2017, which is primarily relevant for the interpretation, speaks of the fact that the applicant was granted cash benefits of €180.49 “for the month 10/2017”, for one month temporary regulation of the benefit case. However, the first line of the justification states that the applicant will receive benefits in accordance with Section 1a Paragraph 3 AsylbLG “from October 1st, 2017”. From the perspective of a recipient of the decision who is familiar with the facts, this wording speaks for a fundamental change in the benefit case to the level of limited benefits in accordance with Section 1a AsylbLG for an indefinite period. Even with regard to previous decisions, a different interpretation is not necessary because the applicant was not able to clearly identify a uniform decision-making practice; The respondent has not issued any written approval decisions in the past, with the exception of the notices of July 4, 2016 and April 4, 2017 regulating the benefits for June and July 2016 and March and April 2017. Nothing else arises if the decision of September 28, 2017 is to be viewed as a so-called basic decision about the general reduction in benefits in accordance with Section 1a Paragraph 3 AsylbLG (for the future), because it also implicitly rejects analogous benefits in accordance with Section 2 Paragraph 1 AsylbLG - with permanent effect for an indefinite period of time - is associated (cf. BSG, judgment of October 30, 2013 - B 7 AY 7/12 R - juris Rn. 15).
The urgent proceedings also include the lawsuits pending before the SG regarding the approval of benefits for the months of March (- S 42 AY 32/19 -), April (- S 42 AY 63/19 -) and May 2019 (- S 42 AY 82/ 19 -) affected. The notices of February 15, 2019 (in the form of the objection notice of March 21, 2019 for March 2019), April 5, 2019 (in the form of the objection notice of April 25, 2019 for April 2019) and the approval of benefits through payment of benefits (in the form of the objection notice of May 10 .2019 for May 2019) have not become the subject of the already pending lawsuit (- S 42 AY 19/19 -) in accordance with Section 96 SGG because the applicant has expressly limited the subject matter of this lawsuit in terms of time to February 28, 2019. Based on the Senate's current knowledge, it is not possible to answer whether the approval of benefits from June 2019 - regulated, among other things, by the respondent's decision of June 6, 2019 - was contested by the applicant; However, due to the circumstances of the individual case, according to which the applicant has taken action against all of the respondent's orders, and the objection period that has (probably) not yet expired, this circumstance does not stand in the way of an interim regulation.
Whether the applicant's entitlement to benefits (in terms of amount) since the end of January 2019 has been assessed in accordance with Section 1a Paragraph 3 Sentence 1 AsylbLG, Section 3 Paragraph 2 AsylbLG or Section 2 Paragraph 1 AsylbLG cannot be assessed with certainty based on the current status of the proceedings. This requires further investigation into the facts.
As the holder of a tolerated stay, the applicant is entitled to benefits in accordance with Section 1 Paragraph 1 No. 4 AsylbLG.
According to Section 1a Paragraph 3 Sentence 1 AsylbLG (in the version of October 20, 2015, BGBl. I 1722, valid since October 24, 2015; previously Section 1a No. 2 AsylbLG), those entitled to benefits according to Section 1 Paragraph 1 Nos. 4 and 5 AsylbLG receive , i.e. persons who are legally obliged to leave the country with or without toleration and for whom measures to end their stay cannot be carried out for reasons for which they are responsible, benefits in corresponding application of Section 1a Paragraph 2 AsylbLG. For them, the entitlement to benefits in accordance with Sections 2, 3 and 6 AsylbLG ends on the day following the enforceability of a deportation threat or the enforceability of a deportation order (Section 1a Paragraph 3 Sentence 2 AsylbLG). Misuse of benefits within the meaning of Section 1a Paragraph 3 Sentence 1 AsylbLG is, in particular, the violation of the obligation of a foreigner without a valid passport or passport substitute as set out in Section 48 Paragraph 3 Residence Act to participate in obtaining an identity document and establishing his identity and nationality (BSG, judgment of May 12, 2017 - B 7 AY 1/16 R - juris para. 15 with further references to the previous provision of Section 1a No. 2 AsylbLG aF). A limitation of claims according to Section 1a Paragraph 3 Sentence 1 AsylbLG also requires that the foreigner has behaved in a way that is reprehensible and that this behavior is the cause of the impossibility of implementing measures terminating the stay, although the BSG has so far left it open whether merely negligent behavior also constitutes a limitation of the claim can fulfill (BSG, loc. cit., Rn. 17). In addition, there must be a serious effort by the immigration office to return the person concerned to their home country (BSG, ibid., para. 18 with further references).
According to these requirements, the fact that the applicant has refused any cooperation in the procurement of documents (home passport, register extract) since mid-2018, in principle, speaks for the violation of obligations under ID law according to Section 48 of the Residence Act and thus for the acceptance of the offense in Section 1a Paragraph 3 AsylbLG. According to Section 48 Paragraph 3 of the Residence Act, a foreigner who does not have a valid passport or passport replacement is obliged to participate in obtaining the identity paper as well as all documents, other documents and data carriers that are necessary for the establishment of his identity and nationality and for the determination and assertion a possibility of repatriation to another country and which he is in possession of, must be presented, handed over and made available upon request to the authorities entrusted with the implementation of this law. According to administrative court case law, the foreigner is obliged - also taking into account the conditions in Lebanon (more on that in a moment) - not only to submit the necessary documents and make an appointment with the diplomatic mission of his home country, but also, if he If the identity paper is not issued in a reasonable time, to ask regularly, to inquire about the reasons for the processing time and to persistently request that the paper be issued (cf. OVG Berlin-Brandenburg, judgment of October 16, 2018 - OVG 3 B 4.18 - juris Rn . 22; VG Munich, decision of September 5, 2018 - M 25 S 18.2249 - juris Rn. 17; VG Hamburg, judgment of November 2, 2010 - 8 K 1605/10 - juris Rn. 20). However, the immigration authority must have specifically updated legal obligations to cooperate, for example with regard to the procurement of identity papers (Section 48 Para. 3 Residence Act), in relation to the person concerned in order to be able to draw negative consequences under residence law from the lack of cooperation (BVerwG, judgment of October 26, 2010 - 1 C 18/ 09 – juris para. 17). Furthermore, Section 82, Paragraph 3, Sentence 1 of the Residence Act imposes an obligation to inform the immigration authority, which generally has better contacts and knowledge regarding the existing options for obtaining home travel documents (OVG Berlin-Brandenburg, judgment of February 21, 2017 - OVG 3 B 14.16 – juris para. 24 mwN).
These principles are to be transferred to the assessment of behavior relevant to benefits under Section 1a Paragraph 3 AsylbLG, but with the proviso of a restrictive interpretation with regard to clear and sustained violations of obligations to cooperate under residency law (cf. Senate resolution of June 6, 2019 - L 8 AY 17 /19 B ER -; see also Oppermann, in jurisPK-SGB December 27, 2012 - S 42 AY 9/12 ER - juris para. 4 with further references; SG Hamburg, decision of August 7, 2014 - S 20 AY 111/10 - juris para. 51 with further references).
In this individual case, particular attention must be paid to the special circumstances that arise from the applicant's nationality, which is not doubted by the immigration office. The Senate also knows from other court proceedings that the Embassy of Lebanon makes the issuance of a home passport dependent on proof of a valid residence permit or assurance from the immigration office that the passport is required to issue or extend a title in accordance with the information sheet submitted by the applicant . This is confirmed by the content of the files consulted, in particular according to the internal email correspondence of the immigration office and the benefits office from February 27, 2019 (page 391 of the benefits file and page 291 of the immigration file), according to which the passport procurement of It is only possible to a limited extent for Lebanese citizens abroad and, according to the experience of the employee at the immigration office who provided the information, it has not yet happened that a Lebanese citizen who is obliged to leave the country has received a replacement passport document. In the opinion of the Senate, these special circumstances lead to increased requirements for the immigration office to specify the cooperation obligations to be fulfilled by the applicant, in particular in the (fundamentally reasonable) procurement of birth certificates, civil status extracts or other extracts from the registers kept in the home country with the involvement of those abroad living relatives or through trusted lawyers. This possible misconduct was pointed out to the respondent by the immigration office in the internal communications of March 21, 2019 and April 25, 2019 (pages 386, 517 of the immigration file), without it being apparent from the files that the applicant also - at least verbally – from the immigration office about the options available to him for obtaining home travel documents, if necessary with further assistance (indication of the responsible authorities in Lebanon and the requirements for the issuance of documents with the involvement of relatives or trusted lawyers, handing over a corresponding list of lawyers, etc. ), has been pointed out. This is at the expense of the respondent, who bears the objective burden of proof for the facts limiting the claim (cf. Senate judgment of December 8, 2016 - L 8 AY 33/13 -; Oppermann in jurisPK-SGB XII, 2nd edition 2014, § 1a AsylbLG, 2nd revision, paragraph 90).
The legal consequences of the fact that the respondent did not limit the limitation of benefits in accordance with Section 1a Paragraph 3 AsylbLG, contrary to the requirements of Section 14 Paragraph 1 AsylbLG, do not need to be answered conclusively here (also left open in the Senate resolution of July 3, 2019 - L 8AY 9/19 -). In case law and literature it is argued that an unlimited limitation of benefits due to a violation of the principle of proportionality is per se unlawful (Bayer. LSG, decision of March 19, 2018 - L 18 AY 7/18 B ER - juris Rn. 24; LSG Mecklenburg- Western Pomerania, decision of June 21, 2018 - L 9 AY 1/18 B ER - juris Rn. 47; LSG Baden-Württemberg, decision of June 18, 2018 - L 7 AY 1511/18 ER-B - juris Rn. 10; SG Magdeburg , decision of September 30, 2018 - S 25 AY 21/18 ER - juris Rn. 23; Oppermann in jurisPK-SGB XII, 2nd edition 2014, § 14 Rn. 9 ff.; Cantzler, AsylbLG, 1st edition 2019 , § 14 Rn. 10).
Under these circumstances, it cannot be answered with certainty whether the applicant should even be granted benefits at the level of social assistance in accordance with Section 2 Para.
According to Section 2 Paragraph 1 AsylbLG, in deviation from Sections 3 and 4 as well as 6 to 7 AsylbLG, SGB have. According to the case law of the BSG (basic: judgment of June 17, 2008 - B 8/9b AY 1/07 R - juris Rn. 32 ff.), abusive behavior in this sense presupposes dishonest behavior in an objective sense that is disapproved of by the legal system , which from a subjective point of view is intentionally carried out in the awareness of the objectively possible influence on your stay. An influence on the length of stay already exists if, from a general, abstract perspective, the abusive behavior can typically extend the length of stay. It does not matter whether the abusive behavior took place during the stay in Germany; An abuse of rights can also be justified by behavior before entry (BSG, ibid., para. 40). In view of the sanctioning nature of Section 2 AsylbLG, not every behavior that is somehow disapprovable is enough. The nature, extent and consequences of the breach of duty are so serious for the foreigner that the breach of duty must also be given considerable weight within the framework of the principle of proportionality. Therefore, only behavior that is inexcusable (social injustice), taking into account the individual case, the special situation of a foreigner in Germany and the special characteristics of the AsylbLG, leads to the exclusion of analogous benefits (BSG, ibid. para. 33).
The applicant, who has been in Germany since the beginning of November 2015, meets the time requirements for a claim to so-called analogue benefits. However, the offense of abuse of rights within the meaning of Section 2 Paragraph 1 AsylbLG is not fulfilled by the fact that the applicant has refused to leave Germany voluntarily since entering the country. An abusive influence within the meaning of Section 2 Paragraph 1 AsylbLG cannot be seen simply in the fact that an asylum seeker, if it was reasonable for him to leave, did not leave the country voluntarily (BSG, judgment of June 17, 2008 - B 8/9b AY 1/ 07 R – juris para. 35). What is required is socially unfavorable behavior that goes beyond not leaving the country, taking into account the individual case, which contains not only an objective but also a subjective component (intent, related to the act influencing the length of stay, with the aim of influencing the length of stay) (BSG, judgment dated June 17, 2008 – B 8 AY 9/07 R – juris para. 15). Even if the applicant has allegedly violated his residence law obligations under Section 48 Paragraph 3 Sentence 1 of the Residence Act from 2017 or mid-2018 onwards (see above), it still needs to be checked, taking into account the circumstances of the individual case and the principle of proportionality, whether the The applicant's refusal attitude, which was recorded in mid-2018, constitutes sufficiently socially antisocial behavior within the meaning of Section 2 Paragraph 1 AsylbLG. In this context, a final examination may still be required as to whether abusive behavior can be ruled out with regard to the practice of the Embassy of Lebanon, because the foreigner concerned would not have been obliged to leave the country regardless of his behavior in the entire period from the time of the abuse can be carried out (cf. BSG, judgment of - B 8/9b AY 1/07 R - juris Rn. 44).
The assessment of the consequences to be carried out in accordance with the provisions of the BVerfG (see above) ends in the applicant's favor, also because there is sufficient probability that there is an entitlement to benefits in accordance with Section 2 Paragraph 1 AsylbLG. The change in benefits to social assistance level is the norm after the 15-month period under Section 2 Paragraph 1 AsylbLG has expired. In addition, the consequences of a restriction of entitlement according to Section 1a Paragraph 3 Sentence 1 AsylbLG in conjunction with Section 1a Paragraph 2 AsylbLG are so serious that In case of doubt, i.e. if there is uncertainty about the existence of the factual requirements, the entitlement to benefits does not have to be restricted (Senate resolution of June 6, 2019 - L 8 AY 17/19 B ER -). Whether Section 1a Paragraph 3 Sentence 1 AsylbLG in conjunction with Section 1a Paragraph 2 AsylbLG can be reconciled with the fundamental right to guarantee a humane minimum subsistence level in accordance with Article 1 Paragraph 1 of the Basic Law in conjunction with Article 20 Paragraph 1 of the Basic Law does not need to be answered in the present proceedings (also left open by Senate resolution of October 25, 2017 - L 8 AY 19/17 B ER - mwN; on the state of opinion see also Deibel, Sozialrechtaktuell 2019, p. 52 Rn. 3). The applicant also credibly demonstrated the particular urgency of the matter (reason for the order) in the affidavit dated June 18, 2019.
For administrative practical reasons, the interim order applies to the period from February 1, 2019 - a retroactive regulation from receipt of the urgent application to the SG on January 25, 2019 does not appear necessary due to the benefits to be paid in arrears based on the Senate decision - and is dependent on a legally binding decision in favor of the applicant Benefits approved according to the AsylbLG for the period up to May 2019 in the legal proceedings pending before the SG (- S 42 AY 19/19 -, - S 42 AY 32/19 -, - S 42 AY 63/19 - and - S 42 AY 82 /19 -) and until December 2019, which are not known to the Senate in detail at the current status of the proceedings. In order to enable the necessary factual investigations (ex officio) and not to unduly bind the respondent, the order is limited in time until the end of December 2019. The Senate also took into account the expected delivery date of the applicant's girlfriend.
The cost decision is based on Section 193 SGG.
The applicant's application for approval of legal aid (PKH) for the appeal procedure must be rejected. Due to the respondent's legally binding obligation to reimburse the out-of-court costs for the first and second instance proceedings, there is no longer any need for legal protection for the PKH application (similar to BVerfG, decision of August 1, 2017 - 1 BvR 1910/12 - juris Rn. 20) .
This decision is incontestable, Section 177 SGG.
