DECISION
L 8 AY 12/19 B ER
S 42 AY 17/19 ER Social Court Hildesheim
In the appeal proceedings
xxx,
– Applicant and complainant –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
City of Göttingen, Legal Department,
Hiroshimaplatz 1 – 4, 37083 Göttingen
– Respondent and Appellant –
The 8th Senate of the Lower Saxony-Bremen State Social Court decided on September 12, 2019 in Celle through Judges xxx, xxx and xxx:
Upon the applicant's appeal, the decision of the Hildesheim Social Court of 12 March 2019 is overturned insofar as it rejected the application for preliminary legal protection.
The respondent is ordered by way of preliminary injunction to grant the applicant provisional subsistence benefits pursuant to Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Sections 27 et seq. of the German Social Code, Book XII (SGB XII), for the period from March 1, 2019 to December 31, 2019, subject to the right of recovery, taking into account the benefits already provided for this period.
The respondent must reimburse the applicant's extrajudicial costs for the proceedings at first instance and the appeal proceedings.
REASONS
I.
The applicant is pursuing a claim for higher benefits under the Asylum Seekers' Benefits Act (AsylbLG) in expedited proceedings. The point of contention is whether he is entitled to so-called analogous benefits under Section 2 Paragraph 1 of the AsylbLG instead of the basic benefits previously granted under Section 3 of the AsylbLG, and – if this is not the case – whether he is entitled to higher basic benefits.
The applicant, who according to his own statements was born in 1990 and is a Somali national, presumably entered Germany in June 2016 and applied for asylum. The Federal Office for Migration and Refugees (BAMF) rejected the application on the grounds that the applicant had already been granted international protection in Italy. At the same time, the BAMF determined that there were no grounds for prohibiting deportation pursuant to Section 60, paragraphs 5 and 7, sentence 1 of the Residence Act, ordered the applicant to leave Germany, threatened deportation to Italy, and determined that deportation to Somalia was prohibited (decision of November 22, 2017). The applicant's subsequent legal action against this decision was unsuccessful (judgment of the Administrative Court of Göttingen of October 15, 2018 – 3 A 745/17). The applicant has held a temporary suspension of deportation (Duldung) since April 16, 2019.
Since August 2016, the respondent has been granting the applicant basic benefits pursuant to Section 3 of the Asylum Seekers' Benefits Act (AsylbLG), partly based on written decisions for one or more months and partly without written notification. Several objections by the applicant claiming higher benefit entitlements were unsuccessful (objection decisions by the respondent dated April 25, May 19, and August 14, 2019). Several legal proceedings are pending before the Social Court (SG) Hildesheim in this regard. The respondent has not yet ruled on an objection filed on August 5, 2019, concerning the granting of benefits for August 2019.
On February 20, 2019, the applicant filed an urgent application with the Social Court of Hildesheim seeking higher benefits under the Asylum Seekers' Benefits Act (AsylbLG). He argued that it was unclear why he was not receiving benefits under Section 2 of the AsylbLG. Furthermore, he requested that the basic benefits under Section 3 of the AsylbLG be continued in accordance with the statutory provisions.
By decision of March 12, 2019, the Social Court rejected the application for interim relief. The requirements for issuing a preliminary injunction were not met because the applicant had failed to demonstrate grounds for an injunction, given the small difference between the basic benefits under Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) and the analogous benefits under Section 2 of the AsylbLG. The decision states that it is not subject to appeal pursuant to Section 172 Paragraph 3 No. 1 of the Social Courts Act (SGG).
The applicant filed an appeal on March 18, 2019, against the decision of March 12, 2019, thereby pursuing his claim for legal protection. The appeal is admissible. In this respect, it must be taken into account that he continues to receive neither analogous benefits nor continued basic benefits. Contrary to the assumption of the Social Court, the difference between analogous and basic benefits constitutes grounds for an injunction. There is no abuse of rights within the meaning of Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG), because the applicant's potentially differing names given in Italy, Norway, and Germany were not causally related to the duration of his stay.
The respondent defends the contested decision.
For further details of the facts and the legal arguments, reference is made to the contents of the court file and the administrative files of the respondent. These files were available to the Senate and formed the basis of its decision.
II.
The appeal is admissible, in particular permissible (§ 172 para. 1 SGG). The exclusion of appeals pursuant to § 172 para. 3 no. 1 SGG does not apply, because the appeal on the merits does not require leave to appeal pursuant to § 144 para. 1 SGG.
The value of the subject matter of the appeal (§ 144 para. 1 sentence 1 no. 1 SGG) depends on what the Social Court denied the appellant and what the appellant pursues in the appeal proceedings (Federal Social Court, judgment of September 6, 2017 – B 13 R 20/14 R juris para. 23). The review of the exclusion of the appeal pursuant to § 172 para. 3 no. 1 SGG is therefore based on the legal protection sought in the appeal. This may, but need not, coincide with the legal protection objective of an actually pending main proceeding. In other words, what matters is a hypothetical main proceeding ("would require"). In urgent proceedings concerning the granting of ongoing subsistence benefits, the Senate's case law generally assumes a disputed period of (a maximum of) twelve months (see, for example, Senate decision of 17 August 2017 – L 8 AY 17/17 B ER – juris para. 4 with further references).
Based on these principles, the value of the subject matter of the appeal in this case amounts to at least €840.00 and thus exceeds the relevant threshold of €750.00 pursuant to Section 144 Paragraph 1 Sentence 1 No. 1 of the Social Court Act (SGG). For details of the calculation, reference is made to the Senate decision of July 25, 2019, issued in proceedings L 8 AY 13/19 B, by which the applicant's appeal against the denial of legal aid for the preliminary injunction proceedings at first instance was granted.
The appeal is also successful on the merits. The Social Court wrongly rejected the application for interim relief.
The application for urgent relief is admissible as an application for a preliminary injunction pursuant to Section 86b Paragraph 2 of the Social Court Act (SGG), because the conditions of Section 86b Paragraph 1 SGG are not met, and is also admissible in all other respects. In particular, a disputed legal relationship within the meaning of Section 86b Paragraph 2 Sentence 2 SGG exists, because the decisions by which the respondent granted the applicant benefits under the Asylum Seekers' Benefits Act (AsylbLG) for the period from February 2019 onwards have not become legally binding.
The application for an interim injunction is well-founded.
Preliminary injunctions are permissible under Section 86b Paragraph 2 Sentence 2 of the Social Court Act (SGG) to regulate a provisional state of affairs with regard to a disputed legal relationship if such regulation appears necessary to avert substantial disadvantages. A prerequisite for issuing a preliminary injunction is that a right asserted against the respondent exists (claim for an injunction) and that the applicant would suffer substantial disadvantages without the issuance of the requested injunction (ground for an injunction). Both the sufficient probability of a substantive claim to performance and the urgency of the regulation to avert substantial disadvantages must be substantiated (Section 86b Paragraph 2 Sentence 4 SGG in conjunction with Section 920 Paragraph 2 of the Code of Civil Procedure (ZPO)).
The applicant has credibly demonstrated a claim to an order for subsistence benefits pursuant to Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Sections 27 et seq. of the German Social Code, Book XII (SGB XII).
According to Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) in the version in force from March 1, 2015, to August 20, 2019 (Act Amending the Asylum Seekers' Benefits Act and the Social Courts Act of December 10, 2014 – Federal Law Gazette I 2014, 2187), the Social Code, Book XII (SGB XII), is to be applied accordingly, notwithstanding Sections 3 and 4 as well as 6 to 7, to those beneficiaries who have resided in Germany for 15 months without substantial interruption and have not abusively influenced the duration of their stay. This provision was amended on August 21, 2019, to require a period of residence in Germany of 18 months without substantial interruption (Second Act to Improve the Enforcement of the Obligation to Leave the Country of August 15, 2019 – Federal Law Gazette I 2019, 1294), whereby the previous version continues to apply in accordance with Section 15 of the Asylum Seekers' Benefits Act. A further amendment to Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) entered into force on September 1, 2019 (Third Act Amending the Asylum Seekers' Benefits Act of August 13, 2019 – Federal Law Gazette I 2019, 1290). This amendment introduced regulations that deviate from the German Social Code, Book XII (SGB XII), for trainees (Section 2 Paragraph 1 Sentences 2 and 3 AsylbLG) and for calculating standard benefits, among other things, when accommodation is provided in communal accommodation or a reception center (Section 2 Paragraph 1 Sentence 4 AsylbLG).
Apart from the question of whether the applicant has abused his rights by deliberately influencing the duration of his stay in Germany, it can be assumed that the other prerequisites for entitlement to subsistence-level benefits are met. The applicant is among those entitled to benefits under Section 1 of the Asylum Seekers' Benefits Act (AsylbLG), currently as the holder of a temporary suspension of deportation (Duldung) (Section 1 Paragraph 1 No. 4 AsylbLG). He has also, as far as can be ascertained, been residing in Germany for more than 15 months without any significant interruption. There is no indication that he can cover his necessary living expenses from his own resources and means, in particular from his income and assets (Section 19 Paragraph 1, Section 27 Paragraphs 1 and 2 Sentence 1, Sections 82 et seq., Section 90 of the German Social Code, Book XII (SGB XII)).
After a summary examination of the facts and the law, the applicant cannot be accused of having abused his rights by influencing the duration of his stay within the meaning of Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG).
According to the jurisprudence of the Federal Social Court (BSG) (fundamental ruling: judgment of June 17, 2008 – B 8/9b AY 1/07 R – juris para. 32 et seq.), abusive conduct in this sense requires, objectively speaking, dishonest behavior disapproved of by the legal system, which, subjectively speaking, is intentional and carried out with the awareness of the objectively possible influence on the person's residence permit. Given the punitive nature of Section 2 of the Asylum Seekers' Benefits Act (AsylbLG), not just any conduct that is in any way reprehensible is sufficient. The nature, extent, and consequences of the breach of duty weigh so heavily on the foreigner, and, via the provisions of Section 2 para. 3 AsylbLG (old version), on their minor children, that the breach of duty must also be given considerable weight within the framework of the principle of proportionality. Therefore, only conduct that is inexcusable (socially unacceptable) when considering the individual case, the specific situation of a foreigner in the Federal Republic of Germany, and the particular characteristics of the Asylum Seekers' Benefits Act (AsylbLG) can lead to the exclusion of analogous benefits. Providing a false identity constitutes a typical case of abuse of rights (BSG, loc. cit., para. 34). Conduct prior to entry into the federal territory can also be considered an abuse of rights (BSG, loc. cit., para. 40). An effect on the length of stay is generally present if, from a general and abstract perspective, the abusive conduct can typically prolong the length of stay. An exception to this is made if any obligation of the foreigner in question to leave the country could not have been enforced during the entire period of the abuse of rights, regardless of their conduct (BSG, loc. cit., para. 44). The burden of proof for an abuse of rights lies with the benefit provider (Oppermann in jurisPK-SGB XII, 2nd edition 2014, § 2 AsylbLG 1st revision Rn. 108).
There is no evidence that the applicant's identity information influenced the length of his stay in Germany. It must first be considered that there has been no doubt to date regarding the applicant's Somali nationality and that the Federal Office for Migration and Refugees (BAMF) has issued a legally binding decision that the applicant may not be deported to Somalia (decision of November 22, 2017). Furthermore, a EURODAC query on July 6, 2016, a few days after the applicant had entered Germany, yielded two hits relating to Norway; the BAMF received information from the Norwegian authorities that the applicant had already been granted international protection in Italy. The reasons why the applicant's deportation to Italy, which was apparently initiated after the judgment of the Göttingen Administrative Court of October 15, 2018, became legally binding, has not yet been carried out cannot be determined from the files available to the Senate. In any case, the applicant's differing identity information in Italy, Norway, and Germany cannot be the cause of this.
No further conduct that could be classified as an abuse of rights within the meaning of Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) is apparent. Entry itself cannot be considered an abuse of rights. This also applies if international protection has been granted by another Member State of the European Union or a third country participating in the distribution mechanism. This is because the abuse of rights within the meaning of Section 2 Paragraph 1 of the AsylbLG does not refer to the mere fact of a stay in Germany, but rather to influencing the duration of the stay (Cantzler, AsylbLG, 2019, Section 2, marginal note 41 at the end; contra Deibel in GK-AsylbLG, as of August 2019, Section 2, marginal note 63). The fact that the conditions for a restriction of entitlement under Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG) may be met in this constellation is irrelevant, because the criteria for the exclusion of analogous benefits on the one hand and for a restriction of entitlement on the other differ (Krauß in Siefert, AsylbLG, 2018, Section 2, marginal note 47; cf. Federal Social Court (BSG), ibid., marginal notes 32, 46). Against this background, it is unnecessary to further clarify whether the international protection granted to the applicant by Italy is still in effect. Likewise, the failure to leave the country does not in itself constitute an abuse of rights (BSG, ibid., marginal note 39).
The applicant has also credibly demonstrated grounds for an injunction. The following aspects are decisive in the context of the required case-by-case assessment (cf. Federal Constitutional Court, decision of August 1, 2017 – 1 BvR 1910/12 – juris para. 15):
In principle, grounds for an injunction are readily apparent in a dispute concerning ongoing means-tested benefits, which include both basic benefits (§ 7 AsylbLG) and analogous benefits (§ 19 SGB XII), because an entitlement to benefits presupposes that the individuals concerned are currently dependent on state support to secure their minimum subsistence level. With regard to the relationship between analogous and basic benefits, it must be taken into account that the difference in the respective monetary benefits alone does not necessarily constitute grounds for an injunction (Senate decision of April 3, 2013 – L 8 AY 105/12 B ER –; see also: Baden-Württemberg Higher Social Court, decision of August 28, 2019 – L 7 AY 2735/19 ER-B –). Apart from the fact that a calculation of the necessary subsistence level for beneficiaries under the Asylum Seekers' Benefits Act (AsylbLG) that deviates from the provisions of Book XII of the German Social Code (SGB XII) is not constitutionally precluded (Federal Constitutional Court, judgment of July 18, 2012 – 1 BvL 10/10, 1 BvL 2/11 – juris para. 73 et seq.), the basic benefits are sometimes provided in a different form (benefits in kind or vouchers).
The fact that the basic benefits actually granted were not updated in accordance with Section 3 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) in the version applicable until August 31, 2019 (old version; now Section 3a Paragraph 4 AsylbLG) strongly suggests the existence of grounds for an injunction. Regardless of the fact that this administrative practice is likely incompatible with statutory and constitutional requirements (see Senate judgment of May 23, 2019 – L 8 AY 49/18 –), the failure to update the benefits results in a significant difference between the analogous benefits and the basic benefits. Specifically, the respondent based its calculations on needs-based rates of €135.00 (§ 3 para. 1 sentence 8 AsylbLG aF) and €219.00 (§ 3 para. 2 sentence 2 AsylbLG) (totaling €354.00), whereas, in the event of a continuation from January 2019, needs-based rates of at least €142.00 and €231.00 (totaling €373.00) would likely result (Frerichs in jurisPK-SGB XII, 2nd edition 2014, § 3 AsylbLG 1st revision Rn. 134.10). It remains open whether the reduction of the standard benefit rate from €145.00 to €135.00, effective March 17, 2016, pursuant to Section 3 Paragraph 1 Sentence 8 of the Asylum Seekers' Benefits Act (AsylbLG aF), is constitutionally permissible (see: Senate judgment of May 23, 2019 – L 8 AY 49/18 – juris para. 22, 28). The assessment must also take into account that the benefit period is not merely short (see: Higher Social Court of North Rhine-Westphalia, decision of July 11, 2017 – L 20 AY 4/17 B – juris para. 30). Furthermore, if the basic benefits – as in this case – are essentially provided as lump-sum payments, grounds for an injunction cannot be assumed only when the beneficiary credibly demonstrates that specific needs remain unmet.
With regard to the amendment of the Asylum Seekers' Benefits Act (AsylbLG) on September 1, 2019, the Senate leaves open the question of under what conditions grounds for an order are credibly demonstrated if the expedited proceedings concerning the granting of analogous benefits instead of basic benefits relate exclusively to a benefit period after August 31, 2019.
The preliminary injunction is limited to the period until December 31, 2019. The fact that the admissibility of the appeal is based on a disputed period of (a maximum of) twelve months does not result in any limitation of the court's discretion under Section 86b Paragraph 2 Sentence 4 of the Social Court Act (SGG) in conjunction with Section 938 Paragraph 1 of the Code of Civil Procedure (ZPO). The Senate refrains from specifying the amount of benefits. An order in principle is permissible in expedited proceedings (Burkiczak in jurisPK-SGG, 1st edition 2017, Section 86b, marginal note 437) and is appropriate in this case. Aside from the question, not to be decided here, of whether the basic benefits should be continued, the parties dispute only whether the applicant has a fundamental right to analogous benefits.
The decision on costs is based on § 193 SGG.
This decision is final and cannot be appealed (§ 177 SGG).
