DECISION
In the legal dispute
1. xxx
2. xxx
– Applicant –
Legal representative:
for 1-2: Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
Hildesheim District, represented by the District Administrator, OE 908/Legal Affairs,
Bischof-Janssen-Straße 31, 31134 Hildesheim
– Respondent –
The 42nd Chamber of the Hildesheim Social Court decided on November 12, 2020, through Judge xxx of the Social Court:
1. The respondent is ordered by way of preliminary injunction to grant the applicants, on a provisional basis, privileged benefits pursuant to Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Book XII of the German Social Code (SGB XII) by analogy, subject to the right to reclaim benefits already received for the corresponding period, for the period from August 2, 2020 until the respondent's decision on the objection of August 19, 2020, but no later than March 31, 2021, specifically for applicant no. 1 according to standard benefit level 1 and for applicant no. 2 according to standard benefit level 6.
2. The respondent shall reimburse the applicants for their extrajudicial costs.
3. The applicants are granted legal aid without installment payments, with the appointment of lawyer Sven Adam, Göttingen.
REASONS
I.
The applicants seek, by way of an interim injunction, the granting of privileged benefits pursuant to Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with the Social Code Book Twelve (SGB XII) – Social Assistance – by analogy.
The applicant (1), born on [date] 2002, and her daughter (2), born on [date] 2018, who are both housed in accommodation at [address] in [city], are Serbian nationals. They live there in a 64.51 m² two-room apartment in a communal accommodation building together with the partner of the applicant (1) and her mother, Ms. [name], regarding whom an appeal is currently pending before the Lower Saxony-Bremen State Social Court for preliminary legal protection (L 8 AY 83/20 B ER). According to the respondent, the apartment has its own bathroom and kitchen. The costs for household energy, apartment maintenance, interior furnishings, household appliances, and household items are provided as benefits in kind.
The first applicant entered Germany with her mother at the beginning of August 2014. The Federal Office for Migration and Refugees (BAMF) rejected her asylum application, her application for refugee status, and her application for subsidiary protection status as manifestly unfounded in a decision dated October 2, 2014. Her subsequent asylum application was rejected in a decision dated September 21, 2016. The second applicant was born in Germany. During the period in question, the applicants had (so far) neither available income nor realizable assets.
The respondent requested the first applicant, by letter dated April 24, 2017, addressed to her mother as legal representative, to submit her national passport. In the meantime, the applicants have been granted tolerated stay status since December 2017, or after the birth of the second applicant, and this status is currently still in effect.
By letter dated July 11, 2019, addressed to the mother of applicant no. 1, the respondent requested the minor applicants to submit a national passport or passport substitute and to appear in person for this purpose on August 19, 2019. According to the contents of the immigration file, the applicants did not appear for the appointment.
The City of Hildesheim, acting on behalf of the respondent, granted the applicants basic benefits pursuant to Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) for the period from September 1, 2019, to February 29, 2020, by decision dated August 5, 2019. By decision dated March 2, 2020, it granted basic benefits for the period from March 1 to August 31, 2020, and by decision dated June 24, 2020, for the period from August 1 to November 30, 2020, in the amount of €536 per month. Applicant No. 1 received basic benefits at needs level 2. The applicants filed an objection to this on July 29, 2020.
They filed an application for an interim injunction on August 2, 2020.
The applicants argue that
they are entitled to privileged benefits pursuant to Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Book XII of the German Social Code (SGB XII) by analogy, because the 18-month prior residence period has been fulfilled. The benefits granted are clearly unconstitutional because their needs have not been specifically determined. The basic benefits according to needs level 2 violate the fundamental right to a guaranteed minimum standard of living that ensures human dignity. There is no indication of any abuse of rights. Their entry into the country and the filing of the asylum application were not an abuse of rights. Furthermore, their departure was not prevented by the lack of a passport, as is evident from their immigration file. The first applicant has been of legal age since July 15, 2020. The applicants do not live in communal accommodation, but rather in a self-contained apartment with their daughter and grandchild, so there are no interactions with people outside their household.
By amendment notice dated August 17, 2020, the city of Hildesheim granted the applicants basic benefits for the period from August 1 to November 30, 2020, in the amount of €861.50 per month, and granted benefits to applicant no. 1 according to need level 1 and to applicant no. 3 according to need level 6.
The applicants filed an objection on August 19, 2020, arguing that applicant no. 1 had formed her own household since August 1, 2020, and that both were entitled to privileged benefits.
The applicants request that
to order the respondent, by way of an interim injunction, to grant the applicant, provisionally and subject to the right of recovery, the requested benefits in the statutory amount from the date of receipt of this application by the court, until a final and binding decision is reached on the applicant's objection of July 29, 2020, taking into account the legal opinion of the court.
The respondent requests that
to reject the application.
He presents:
The objection of July 29, 2020, is inadmissible. The applicants failed to cooperate in obtaining passports, which constitutes an abuse of rights, as does their renewed illegal entry into Germany. Furthermore, the entry was made to receive social assistance. House xxx comprises 48 residential units with a total of 250 places, each with its own bathroom and kitchen. There is a shared laundry room and common rooms for residents and, if necessary, celebrations. The house is staffed around the clock. According to the decision of the Higher Administrative Court (OVG) Saarlouis of April 1, 2010 (2 A 486/09), foreigners have a duty to cooperate pursuant to Section 48 Paragraph 3 of the Residence Act (AufenthG) without a specific request from the authorities. The fact that the first applicant was not specifically requested to obtain a passport after reaching the age of majority does not preclude the finding of an abuse of rights. She did not comply with the request addressed to her via her mother on July 11, 2019.
Regarding the further submissions of the parties, reference is made to the contents of the court file, the foreigner's file and the administrative files consulted.
II.
The application for an interim injunction 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 of the 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 application for a preliminary injunction is admissible at least at the time of the court's decision because a disputed legal relationship exists. The applicants filed their appeal against the last grant notice of August 17, 2020, which covers the period up to November 30, 2020, on August 19, 2020, and thus within the one-month period stipulated in Section 84 Paragraph 1 Sentence 1 of the Social Courts Act (SGG).
The application is fully justified.
The applicants have each credibly demonstrated a claim and grounds for an injunction with regard to their individual claims to privileged benefits. Applicant 1 has a claim to benefits pursuant to Section 2 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) (standard benefit level 1; Section 8 Paragraph 1 Sentence 1 No. 1 of the Standard Benefit Determination Act (RBEG)) from the date the application was received by the court on August 2, 2020, and applicant 2 has a claim pursuant to Section 2 Paragraph 1 Sentence 1 of the AsylbLG (standard benefit level 6; Section 1 Paragraph 1 Sentence 1 No. 6 RBEG) in conjunction with the German Social Code, Book XII (SGB XII) by analogy.
(1)
According to Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG), and in deviation from Sections 3 to 4 and 6 to 7 of the AsylbLG, the Social Code Book XII (SGB XII) shall apply accordingly to those beneficiaries who have been residing in the federal territory for 18 months without significant interruption and who have not abusively influenced the duration of their stay.
The applicants, as holders of a temporary suspension of deportation pursuant to Section 60a of the Residence Act, fall within the scope of the Asylum Seekers' Benefits Act, as stipulated in Section 1, Paragraph 1, No. 4 of this Act. They have also fulfilled the 18-month prior residence requirement
The first applicant apparently last entered Germany in September 2016 and thus, without any significant interruptions, completed the aforementioned period of prior residence during the period in dispute. The second applicant, born on February 12, 2018, has resided continuously in Germany since her birth without any significant interruptions and thus also completed the period of prior residence by August 2, 2020, the date the application for preliminary legal protection was filed.
The Chamber is convinced that the applicants did not abuse their rights by influencing the duration of their stay in the federal territory.
When assessing whether there has been an abuse of rights, the entire duration of the stay in Germany must be considered (see Grube/Wahrendorf, Commentary on the German Social Code, Book XII and the Asylum Seekers' Benefits Act, 5th edition 2014, § 2 AsylbLG, para. 22; Hohm, in: Schellhorn/Schellhorn/Hohm, Commentary on the German Social Code, Book XII and the Asylum Seekers' Benefits Act, 19th edition 2015, § 2 AsylbLG, para. 20 with further references). The examination of abusive conduct is a legally preclusive (preventive) element of the offense (see Federal Social Court judgment of February 8, 2007 – B 9b AY 1/06 R –).
According to the rulings of the Federal Social Court (BSG) of June 17, 2008 (B 8/9b AS 1/07 R and B 8 AY 9/07 R) and February 2, 2010 (B 8 AY 1/08 R), an abuse of rights is committed by anyone who, beyond simply failing to leave the country, behaves in a socially unacceptable manner, taking into account the individual circumstances of the case. Both objective and subjective elements must be considered. Intent is required with regard to an action that influences the length of stay, with the aim of influencing that length of stay. The mere failure to leave voluntarily, despite reasonableness, is insufficient, departing from previous case law (cf. the BSG ruling of February 8, 2007 – B 9b AY 1/06 R). The Lower Saxony-Bremen State Social Court had already ruled in its judgment of December 20, 2005 – L 7 AY 40/05 – that exploiting a temporary suspension of deportation was not an abuse of rights and that further conduct was required.
Furthermore, the Federal Social Court (BSG) does not require, as an element of the offense, that the disapproved conduct be causally related to the duration of the stay, but rather adopts an abstract and general approach. Accordingly, the abuse need not be currently ongoing or have a continuing effect. An exception is formulated for cases where measures to terminate the stay cannot be carried out for the entire duration of the stay for reasons beyond the recipient's control. Thus, in the case of a permanent obstacle to enforcement that is independent of the foreigner's conduct, there is an exception to this standardized approach.
According to the cited case law of the Federal Social Court (BSG), the foreigner's conduct must be objectively dishonest and disapproved of by the legal system. The benefit recipient may not invoke a circumstance that they themselves brought about in bad faith. In this context, the breach of duty must carry considerable weight within the framework of the principle of proportionality, taking into account the individual case. Only conduct that is inexcusable and thus socially unacceptable, considering the specific circumstances of the case, the foreigner's particular situation in the Federal Republic of Germany, and the specific characteristics of the Asylum Seekers' Benefits Act (AsylbLG), should lead to the exclusion of privileged benefits (see also Cantzler, Handkommentar zum AsylbLG, 1st edition 2019, § 2, para. 38). According to the case law of the BSG, even a single instance of conduct can have this legal consequence. Abusive conduct cannot be remedied by subsequent integration.
The explanatory memorandum to the law cites, among other things, the provision of a false identity or the destruction of a passport as an example (Bundestag printed matter 15/420, page 121). The Federal Social Court (BSG) recognizes as an exception that such conduct constitutes a reaction to or preventive measure against objectively foreseeable misconduct by the state in which asylum is sought. Furthermore, in its judgment of June 17, 2008 (B 8/9b AY 1/07), the BSG also cites the refusal to cooperate in obtaining a replacement passport as grounds for an abuse of rights, provided that a legal provision exists for such cooperation.
On the subjective side, according to the cited highest court rulings, the accusation of abusive self-influence regarding the duration of stay in the federal territory requires intent.
Whether the mother of applicant no. 1, as her legal representative in the present individual case, acted abusively during the period of her daughter's minority, which ended on July 15, 2020, by not complying with the request of the Hildesheim Immigration Office of July 11, 2019, pursuant to Section 82 Paragraph 1 in conjunction with Section 48 Paragraph 3 of the Residence Act, and by not submitting valid national passports or passport substitutes, can remain undecided in the Chamber's view, because the actions of the legal representative cannot be attributed to the minor foreigner within the framework of Section 2 of the Asylum Seekers' Benefits Act. The Federal Social Court (BSG) derives this from the wording of Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) in its judgment of June 17, 2008 – B 8/9b AY 1/07 R – para. 48, which refers to the concept of "self" influencing the duration of the stay in the federal territory and is based on highly personal conduct that cannot be attributed.
The only remaining option is the examination of the minor's own culpability, as mentioned in paragraph 47 of the judgment, based on an assessment of their capacity for insight. In the present case, given the limited scope of review available in preliminary injunction proceedings, this assessment concludes that the applicant (no. 1) is not at fault in a way that would justify the assumption of socially unacceptable and inexcusable conduct. The immigration office's summons of July 11, 2019, was addressed to the mother of the applicant (no. 1) as her legal representative, so it is initially unclear whether the applicants were even aware of the summons. Based on these circumstances, it is not possible to establish with sufficient certainty in preliminary injunction proceedings that the then-minor applicant (no. 1) committed intentional and socially unacceptable conduct that would justify a permanent exclusion from privileged benefits. The court has serious doubts as to whether the applicant's failure to attend a scheduled appointment, without any reliable factual basis that she was aware of the appointment and its significance, constitutes strong evidence that she intended to influence the duration of her stay in Germany. Due to the burden of proof, any doubts are resolved against the respondent, who must demonstrate and prove that the applicant intentionally manipulated the duration of her stay in Germany as a legally relevant element that precludes her claim.
For the short period from the applicant's reaching the age of majority on July 15, 2020, until the initiation of the preliminary injunction proceedings on August 2, 2020, the court is not convinced that the applicant's conduct constituted an abuse of rights aimed at extending her stay, especially since such conduct would require a certain degree of persistence and duration to justify the accusation of social injustice with its serious legal consequence of permanent exclusion from privileged benefits. Against this background, the court also considers it significant that the City of Hildesheim deliberately refrained from requesting a passport immediately upon the applicant's reaching the age of majority. Given the uncertainty as to whether the request of July 11, 2019, even reached the applicant no. 1, and the serious consequences of a breach of the duty to cooperate under immigration law with direct relevance to securing a basic human dignity minimum standard of living (Article 1 in conjunction with Article 20 of the Basic Law (GG)), it would have been essential to demonstrate the applicant no. 1's duty to cooperate under immigration law and the resulting concrete acts of cooperation in order to substantiate the allegation of social inconvenience with the necessity of proving intentional conduct.
Furthermore, re-entry into the federal territory does not constitute an abuse of rights, because entry establishes the residence but does not determine its duration or have any effect on it. The same applies to the respondent's argument based on Section 1a Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG), which provides for a reduction of basic benefits if entry was made for the purpose of receiving social benefits under the AsylbLG. Apart from the fact that the respondent, or rather the city of Hildesheim, has not yet made any reduction under this provision and apparently does not consider the eligibility requirements to be met, even if this condition were met, it would not constitute an abuse of rights influencing the duration of the stay in Germany, because Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) only covers conduct that prolongs, but does not establish, a stay (see Cantzler, loc. cit., Section 2, marginal note 41 with reference to the explanatory memorandum (Bundestag printed matter 15/420, p. 121)). The Federal Social Court (BSG) had already reached this conclusion in its judgment of June 17, 2008 – B 8/9b AY 1/07 R – (marginal note 46), cited above. The same applies to the re-entry of applicant no. 1 in 2016, because this only established the residence in Germany, but did not affect its duration, which is the basis for Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act.
With regard to the second applicant, born on [date redacted] 2018, no abuse of rights can be established in any way because – as stated above – according to the case law of the Federal Social Court (BSG), even the conduct of the legal representative cannot be attributed to her. This is because Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) requires the element of self-influence over the length of stay. The Chamber finds it evident that the second applicant, who is a toddler, lacks the capacity for insight. According to the amendment of Section 2 of the AsylbLG as amended on December 10, 2014 (after the amendment of Paragraph 3), a minor may be entitled to privileged benefits if they live in a household with a parent (see Cantzler, loc. cit., Section 2, marginal note 64; decision of the Bavarian State Social Court of March 19, 2019 – L 8 AY 12/19 B ER –). The Chamber is convinced that these conditions for entitlement are met in the case of applicant 2. Due to the amendment of Section 2 Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG), applicant 2's independent entitlement no longer depends on a parent receiving privileged benefits, so that she is entitled to corresponding benefits regardless of whether applicant 1 receives such benefits, especially since she has fulfilled the 18-month prior residence requirement.
(2)
Applicant No. 2 is to be granted privileged benefits according to the standard benefit level 6, which is undisputed between the parties. The Chamber is convinced that applicant No. 1 is entitled to privileged benefits according to standard benefit level 1
She is housed in an apartment in [address redacted] in Hildesheim, which, in the court's opinion, is not a communal accommodation within the meaning of Section 2 Paragraph 1 Sentence 4 No. 2 of the Asylum Seekers' Benefits Act (AsylbLG), although this legal term is not defined by statute (see Cantzler, loc. cit., Section 3, marginal note 85). According to the decision of the Lower Saxony-Bremen State Social Court of July 9, 2020 – L 8 AY 52/20 B ER – the decisive factor, according to the explanatory memorandum to the law (Bundestag printed matter 19/10052, pp. 20, 21, 25), is that the accommodation serves as communal housing and, due to the division into personal living space and shared rooms, allows for independent household management only to a very limited extent. Conversely, a distinction must be made between this and a dwelling as defined in Section 8 Paragraph 1 of the Standard Needs Assessment Act (RBEG), which has been defined there since January 2, 2020 (Federal Law Gazette I 2016, 3159) by Sentence 3 (previously Sentence 2). According to this, a dwelling is a collection of several rooms that are structurally separate from other dwellings or living spaces and that, as a whole, comprise all the facilities, equipment, and premises necessary for running a household.
Based on this, the applicants' specific accommodation in a self-contained apartment in the present case does not constitute collective or communal accommodation within the meaning of Section 53 of the Asylum Act (AsylG), because autonomous and completely self-sufficient household management is largely possible. The apartment has two rooms, a kitchen, and a bathroom, thus enabling independent household management without shared use of these rooms with third parties. The shared use of the laundry room and, if applicable, the optional use of communal areas located outside the apartment do not give the applicants' specific accommodation the character of communal accommodation, in which, according to the explanatory memorandum to the law, shared economic activity with residents outside the family or support group can be expected, because even in private accommodations, for example in larger apartment buildings, communal rooms and laundry rooms can be shared by residents. In the Chamber's view, no significant difference—which would permit differentiation in light of Article 3 of the Basic Law (GG)—compared to living in a privately rented apartment is discernible. Contrary to the defendant's assumption, the interpretation of the criteria for communal accommodation – as undertaken by the Higher Social Court – is not merely a question of the constitutionality of Section 2 Paragraph 1 Sentence 4 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG), but rather must be resolved at the factual level through subsumption and interpretation of the term "communal accommodation" within the context of the benefit provision. This is because the term "communal" or "collective accommodation" is not defined by the legislature in the AsylbLG, meaning that the lower courts are responsible for interpreting it accordingly in light of the benefit provision. In this respect, the court assumes full judicial review of the legal concept of "communal accommodation." It follows that the designation of the accommodation by the City of Hildesheim or any other authority is irrelevant to this legal concept; rather, the sole determining factor is the specific accommodation assigned, taking into account all aspects of the individual case.
The respondent's argument regarding the risk of double payments, given that the expenses for household energy, apartment maintenance, interior furnishings, household appliances, and household items are provided here as benefits in kind, does not ultimately justify classifying the accommodation as communal housing. This is because the provision of benefits in kind merely describes the method of providing the necessary services to cover basic needs, but has no bearing on the type or legal designation of the accommodation. Furthermore, the City of Hildesheim is free to examine and, if necessary, implement a different standard rate pursuant to Section 27a Paragraph 4 of the German Social Code, Book XII (SGB XII), in light of Section 2 Paragraph 2 of the Asylum Seekers' Benefits Act (AsylbLG), insofar as this includes the standard benefit items related to benefits in kind. If this is not legally permissible, it would be the responsibility of the legislature to enact corresponding legal provisions or amend existing ones to ensure greater coherence in the benefit regulations. In any case, this cannot prevent the authorities from classifying someone as belonging to standard benefit level 1, provided that there is clearly no communal accommodation as defined in Section 2 Paragraph 1 Sentence 4 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG). This is because such a classification would have a direct impact on the amount of benefits guaranteed by the Basic Law for those entitled to benefits under this law, an impact that could hardly be justified on constitutional grounds.
The applicants have credibly demonstrated grounds for an injunction, to the satisfaction of the court. The particular urgency in this specific case arises from the subsistence-securing nature of the claimed benefits under the Asylum Seekers' Benefits Act (AsylbLG).
The decision on costs follows analogously from Section 193 Paragraph 1 of the Social Court Act (SGG).
The applicants were to be granted legal aid due to the prospects of success (§§ 73a SGG, 114 ff. ZPO).
The respondent's appeal against this decision would be admissible (§ 172 paragraph 3 no. 1, 144 paragraph 1 sentence 1 no. 1 SGG), since the value of the appeal, calculated over the one-year period, is more than 750 euros (cf. the decision of the LSG Lower Saxony-Bremen of 17 August 2017 – L 8 AY 1/17 B ER - regarding the calculation of the value in dispute).
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