DECISION
S 42 AY 4025/20 ER
In the legal dispute
xxx,
— Applicant —
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
Hildesheim District Office OE 908/Legal Affairs,
represented by the District Administrator,
Bischof-Janssen-Straße 31, 31134 Hildesheim
— Respondent —
The 42nd Chamber of the Hildesheim Social Court decided on December 11, 2020, through Judge xxx of the Social Court:
- The respondent is ordered by way of preliminary injunction to grant the applicant, provisionally and subject to the right of recovery, privileged benefits pursuant to Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with the German Social Code, Book XII (SGB XII) by analogy, according to standard benefit level 1, for the period from September 14, 2020 until March 31, 2021 at the latest, unless a decision has been made beforehand on the objection to the decision of September 10, 2020, taking into account any basic benefits already provided for this period.
- The respondent must reimburse the applicant for his extrajudicial costs.
- The applicants are granted legal aid without installment payments for the first instance proceedings, with the appointment of lawyer Sven Adam, Göttingen.
REASONS
I.
The applicant seeks, 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 — analogously from September 14, 2020.
The applicant, born on [date redacted] 2002, his parents, and four siblings, according to their own statements, are from Kosovo and entered Germany on May 22, 2015. The applicant's parents stated to the State Reception Authority (LAB) Braunschweig that they were Kosovar nationals with knowledge of Albanian. After being assigned to the respondent's local jurisdiction, they were continuously registered at the address "xxx in Hildesheim." During the period in question, the applicant had neither available income nor realizable assets.
The Federal Office for Migration and Refugees (BAMF) rejected the asylum applications, the applications for refugee status, and the applications for subsidiary protection of the applicant, his parents, and siblings as manifestly unfounded in a decision dated September 15, 2015. It found no grounds for prohibiting deportation and ordered them to leave Germany. Otherwise, they would be deported to Kosovo. The BAMF based its decision on the assumption that the family was of Kosovar nationality and belonged to the Roma people.
The applicant initially held a temporary residence permit pursuant to Section 55 of the Residence Act (AufenthG) and has held a tolerated stay permit pursuant to Section 60a of the Residence Act (AufenthG) since November 2015. He initially received basic benefits pursuant to Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) on an ongoing basis, together with his parents and siblings, as far as can be seen from the administrative file.
The Hildesheim Immigration Office initially contacted the applicant's parents through attorney Peters, who was representing them in the asylum proceedings. In a letter dated September 25, 2017, addressed to the father, the city of Hildesheim requested that he and his wife appear in person and, among other things, present valid national passports or substitute travel documents for all family members, after the expiration of their temporary suspension of deportation. The letter included information about the obligations under immigration law pursuant to Section 48, paragraphs 1 and 3, and Section 49, paragraph 2 of the German Residence Act (AufenthG).
Since no interview had taken place – according to the contents of the immigration file – the city, in a letter dated August 10, 2018, addressed to the applicant's father, requested that he, the applicant's mother, and their son Adem appear in person and, among other things, present a valid national passport or civil status documents. The letter also included information about their obligations under immigration law. According to the immigration file, no interview took place.
A note in the foreigner's file dated July 2, 2019, indicates, based on a notification from the State Criminal Police Office (LKA) dated June 30, 2017, that the applicant, his parents, and siblings do not possess Kosovar citizenship, but rather Macedonian citizenship is presumed. Consequently, the city of Hildesheim changed the applicant's citizenship status to "undetermined.".
In a letter dated July 5, 2019, addressed to the applicant's father, the city requested that those family members who were of legal age at that time appear in person and submit, among other things, a national passport or equivalent travel document for all family members. The letter included information about the obligations under immigration law. According to a note dated August 22, 2019, the city had noticed that the applicant, his parents, and siblings had not been in Germany between December 2017 and July 2018 and had registered their arrival from France.
A letter from the Ministry of the Interior of the Republic of Serbia, dated October 30, 2013, reached the city of Hildesheim in 2019, stating that the applicant's family could not be returned to Serbia because their Serbian citizenship was not confirmed. According to a notification from the "Readmission Kosovo" dated July 30, 2013, their Kosovar origin could not be verified. Subsequently, the parents completed a questionnaire to clarify their identity and citizenship, which also included information about their parents and siblings.
In a letter dated October 7, 2019, addressed to the applicant's mother, the city of Hildesheim requested the applicant's parents to appear in person to, among other things, present a valid national passport or passport substitute.
In an email dated October 17, 2019, the Lower Saxony State Criminal Police Office (LKA Niedersachsen) suggested a review to determine whether Macedonian citizenship existed, after rejections from Kosovo and Serbia.
In a letter dated January 7, 2020, addressed to the applicant's father, the city requested, among other things, that his family appear in person to submit a current biometric passport photo, without requiring the submission of a passport document. In a letter dated April 2, 2020, the city stated that due to the coronavirus pandemic, no in-person appointments were currently possible.
The city of Hildesheim granted the applicant basic benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) for the period from May 1 to August 31, 2020, in the amount of €316 per month according to needs level 2 for residents of communal accommodations, by decision dated April 3, 2020, and apparently assumed that he lived in the self-contained apartment with his brother.
On September 4, 2020, the applicant filed an objection to the de facto granting of benefits, arguing that he was entitled to privileged benefits pursuant to Section 2 of the Asylum Seekers' Benefits Act (AsylbLG). By decision dated September 10, 2020, the City of Hildesheim granted the applicant basic benefits pursuant to Sections 3 and 3a of the AsylbLG for the period from September 1 to December 31, 2020, in the amount of €449.65 per month, taking into account – in addition to a usage fee for accommodation – the benefit rates according to needs level 2 in the amount of €316.00 per month. By letter dated September 15, 2020, the applicant stated that his objection was now directed against the decision of September 10, 2020.
In the meantime, on September 14, 2020, the applicant filed an application for an interim injunction.
He presents:
The applicant is entitled to privileged benefits because he has lived in Germany for more than four years and has not acted abusively. Benefits at standard benefit level 1 are being claimed. The applicant lives with his family in their own, self-contained apartment, so there are no synergies with other persons outside the household (letter dated September 15, 2020). It should be noted that the applicant lives in his own apartment with his brother xxx, but not with a parent (letter dated December 7, 2020). The applicant has always been willing to cooperate in obtaining a passport. However, neither Kosovo nor Serbia will accept them. He is from Kosovo and was born there. He assumes he possesses Kosovar citizenship, although the authorities of Kosovo appear to disagree. Efforts are currently underway to have the family recognized as stateless under immigration law. The applicant's father traveled to the Embassy of North Macedonia in Berlin on November 18, 2020, to obtain confirmation that the family did not possess the relevant citizenship. The applicant and his family had never been to Germany before 2015. He submitted a confirmation from the Embassy of the Republic of North Macedonia in Berlin, dated December 3, 2020, stating that the applicant was not a citizen of the Republic of North Macedonia.
The applicant requests:
The respondent is ordered, by way of preliminary 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 legally binding decision is reached on the applicant's objection of September 4, 2020, against the de facto grant of benefits from September 1, 2020, taking into account the legal opinion of the court.
The respondent requests that
the application be rejected.
He presents:
The applicant, whose nationality is unclear, has abusively influenced the duration of his stay in Germany and is therefore not entitled to privileged benefits. He lives in a self-contained apartment within the communal accommodation, the services of which include the operator's provision of services such as apartment furnishings, repairs, cleaning (including windows), recreational activities, common rooms, laundry services (bed linen), etc. The synergistic effects assumed by the legislature are likely to exist in fact, or their absence in the specific case is a question of the constitutionality of the regulation, for which only the Federal Constitutional Court has the power to declare it unconstitutional. Reference is made to the decision of the Federal Court of Justice of October 27, 2017 – V ZR 193/16. Furthermore, if a higher standard benefit is taken into account, needs would be covered twice: firstly, by cash payments and secondly, by services provided by the operator. In addition, electricity, bed linen, and household appliances are provided as benefits in kind, and the latter are repaired if necessary, which also applies to maintenance services. The court's assessment that the immigration office did not directly contact the applicant with requests for cooperation after he turned 18 was correct and primarily due to the COVID-19 pandemic. However, there is a general obligation under immigration law to cooperate in determining identity and nationality pursuant to Section 48 of the Residence Act (AufenthG), which the applicant violated. Regarding nationality, the city of Hildesheim now assumes that Kosovar and Serbian citizenship are ruled out. Macedonian citizenship is a possibility, and the Lower Saxony State Office for Citizenship (LAB Niedersachsen) has been asked for assistance in clarifying this. The possibility of a temporary suspension of deportation (Duldung) pursuant to Section 60b of the Residence Act (AufenthG) is being examined.
Regarding the further submissions of the parties, reference is made to the contents of the court file and the administrative file including the foreigner's file.
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 SGG in conjunction with Section 920, paragraph 2 of the Code of Civil Procedure (ZPO)). Insofar as the prospects of success are considered in connection with the claim for the order, the factual and legal situation must be examined not merely summarily, but conclusively (cf. decision of the Federal Constitutional Court of May 12, 2005 – 1 BvR 569/05 –). Moreover, the requirement of establishing credibility relates only to the reduced intensity of the review and the need for a preponderance of probability to demonstrate the factual prerequisites of the claim for an order and the grounds for the order (cf. decisions of the Hessian State Social Court (LSG) of June 29, 2005 – L 7 AS 1/05 ER –, and of February 12, 1997 – L 7 AS 225/06 ER –; Berlit, Info also 2005, 3, 8).
The applicant has credibly demonstrated both a claim to an injunction and grounds for such an injunction. Within the scope of the summary review required in preliminary injunction proceedings, he has credibly demonstrated, to the satisfaction of the court, a claim to privileged benefits.
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.
As the holder of a temporary suspension of deportation pursuant to Section 60a of the Residence Act, the applicant falls within the scope of the Asylum Seekers' Benefits Act (AsylbLG), as stipulated in Section 1 Paragraph 1 No. 4 of this Act. He has also fulfilled the 18-month prior residence requirement and was actually present in Germany during the period in dispute, beginning on September 14, 2020. The court is convinced that this applies even if he and his family were actually in France from December 2017 to July 2018, and this were to be considered a significant interruption of his residence in Germany.
In the court's view, the applicant did not abuse his rights by influencing the duration of his 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.
In the present case, it must be taken into account that the applicant turned 18 on [date omitted] 2020. Section 2, paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) requires "self-influence" on the length of stay, whereby the conduct of legal representatives is not attributable due to its highly personal nature (see Federal Social Court (BSG) judgment of June 17, 2008 – B 8/9b AY 1/07 R –). The conduct in connection with obtaining a passport since 2015, which cannot be attributed to the applicant, does not appear to constitute an abuse of rights upon preliminary review. In this respect, full reference is made to the decision of December 10, 2020 – S 42 AY 4026/20 ER –. The parents' efforts to obtain passports were therefore futile from the outset, insofar as they aimed to obtain Kosovar or Serbian passports, because those countries could not confirm the family's citizenship. Their subsequent efforts to obtain North Macedonian identity documents failed with regard to the mother, as the North Macedonian embassy in Berlin was unable to confirm her citizenship on December 2, 2020. The applicant's North Macedonian citizenship was confirmed the following day.
Furthermore, no fault on the part of the applicant can be proven during his minority, based on the summary review. The City of Hildesheim's requests for cooperation regarding immigration matters were addressed exclusively to his parents, and it is questionable and doubtful to what extent the applicant was aware of these requests, which would constitute the necessary intentional conduct for the self-inflicted extension of his stay in Germany, and whether he possessed the corresponding capacity for understanding. The burden of proof for this element of the offense that would preclude entitlement rests with the respondent (see Cantzler, in: Commentary on the Asylum Seekers' Benefits Act, 1st edition 2019, § 2, para. 28 with further references). However, the court finds that no conclusions extinguishing the claim can be drawn from the decisions and the applicant's submissions, at least within the framework of preliminary injunction proceedings. The authority has failed to provide any concrete evidence regarding the applicant's own conduct.
For the period after the applicant reached the age of majority, the court is convinced that, due to the specific circumstances of this case, a concrete request for cooperation pursuant to Section 48 of the Residence Act (AufenthG) is required, which should have been addressed directly to the applicant. While it is true that the obligation to cooperate under immigration law applies to every person entitled to benefits – regardless of whether they have been informed of the legal consequences – and that explicit notification of these consequences may not be necessary, it must be clear to the individual concerned what conduct the immigration authorities require of them. Only then is it justified to permanently exclude them from benefits at the social assistance level, which is a serious legal consequence. In the present case, this was not clear and unambiguous from the applicant's perspective after they reached the age of majority, because the City of Hildesheim refrained from issuing a request for cooperation specifically addressed to him (likely due to the pandemic) or from a personal appointment, which would have made clear what essential steps he should take to obtain a passport. In the Chamber's opinion, this would have been necessary here due to the specific circumstances of the case, because the immigration situation regarding the determination of citizenship and the procurement of passports was unclear, after the Kosovar and Serbian authorities had already denied the citizenship of the applicant and his family, a fact that became known in 2019. The Chamber is convinced that this situation is clearly illustrated by the memorandum from the immigration office dated July 2, 2019, and the email from the Lower Saxony State Criminal Police Office dated October 17, 2019 (page 169 of the immigration file), with the official consequence that Macedonian citizenship was subsequently investigated. However, it must be noted that these efforts also proved futile, because the Embassy of the Republic of North Macedonia in Berlin did not confirm the applicant's citizenship on December 3, 2020. There is (currently) no objective factual basis for the claim that identity fraud is the cause of Kosovo, Serbia and North Macedonia's reluctance to recognize the applicant as their own national, and such a basis has neither been presented nor proven by the benefits authority.
The court is convinced that the applicant is entitled to privileged benefits pursuant to Section 2 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) at standard benefit level 1. He 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. 1 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 Higher Social Court of Lower Saxony-Bremen 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 accommodation 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 12016, 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 the foregoing, the court, despite the applicant's attorney's written submission of September 15, 2020, assumes that the applicant lives in a self-contained apartment not with his family, which includes his parents, but exclusively with his brother. In a written submission dated December 7, 2020, the attorney indirectly admitted, in response to a court inquiry, to having presented incorrect facts. This finding is also confirmed by the basic benefit award at needs level 2 in the amount of €316 per month. Had the respondent considered the applicant to be a member of at least one parent's household, needs level 3 would have been applicable.
The court is convinced that the applicant's specific accommodation in a self-contained apartment does not, in this particular case, constitute a collective or communal accommodation within the meaning of Section 53 of the Asylum Act (AsylG), because largely autonomous and completely self-sufficient household management is possible. In addition to the living quarters, the apartment has a kitchen and bathroom, thus enabling independent household management without shared use of these spaces with third parties. The shared use of the laundry room and, if applicable, the optional use of communal facilities located outside the apartment do not give the accommodation the character of a communal facility, in which, according to the legislative justification, 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 facilities can be shared by residents. In the court'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 respondent'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 Chamber assumes that the courts have full judicial review authority over 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. This is not contradicted by the Federal Court of Justice's 2017 decision, as it clearly did not pertain to Section 2 Paragraph 1 Sentence 4 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG), which was only codified on September 1, 2019. Furthermore, it is the responsibility of the social courts to interpret the provisions of the AsylbLG from a social law perspective.
The respondent's argument regarding the risk of double payments, given the provision of benefits in kind for household energy, apartment maintenance, interior furnishings, household appliances, and household items, 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 benefits to cover necessary needs but has no bearing on the type or legal designation of the accommodation. Moreover, the City of Hildesheim is free to examine and, if necessary, implement a different standard rate setting pursuant to Section 27a Paragraph 4 of the German Social Code, Book XII (SGB XII), in light of Section 2 Paragraph 2 of the AsylbLG, insofar as this includes the standard benefit items related to benefits in kind. If this is not legally possible, it would be the responsibility of the legislature to enact or amend existing laws to ensure greater coherence in the benefit regulations. In any case, this cannot prevent an official from classifying someone as belonging to standard benefit level 1 simply because there is clearly no communal accommodation as defined in Section 2, Paragraph 1, Sentence 4, No. 1 of the Asylum Seekers' Benefits Act (AsylbLG). Such a classification would have a direct impact on the amount of the benefit recipient's constitutionally guaranteed entitlement under this law, an impact that would be difficult to justify constitutionally.
The applicant has credibly demonstrated a particular urgency and thus the grounds for the order. In the present case, this arises from the essential nature of the benefits, which are vital for securing the applicant's livelihood.
The decision on costs follows from Section 193 Paragraph 1 of the Social Court Act (SGG).
Due to the prospects of success, the applicant was to be granted legal aid without installment payments in accordance with Sections 73a SGG, 114 et seq. ZPO.
An appeal against this decision under point 1 is admissible pursuant to Sections 172 Paragraph 3 No. 1, 144 Paragraph 1 Sentence 1 No. 1 of the Social Court Act (SGG), because the respondent's grievance exceeds €750 (monthly €432 or €446 (from January 1, 2021) less €316). The value in dispute is to be determined based on the one-year period (see decision of the Higher Social Court of Lower Saxony-Bremen of August 17, 2017 — L 8 AY 1/17 B ER -).
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