DECISION
S 42 AY 4026120 ER
In the legal dispute
- xxx,
- xxx,
- xxx,
- xxx,
- xxx,
- xxx,
— Applicant —
Legal representative:
for items 1-6: 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 10, 2020, through Judge xxx of the Social Court:
- The respondent is ordered by way of preliminary injunction to grant the applicants, 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, for the period from September 14, 2020, until March 31, 2021, at the latest, if no 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 applicants for their 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 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 — analogously from September 14, 2020.
The applicant (1), born in 1977, his wife (2), born in 1982, the applicants (3) through (6), born on [dates omitted] 2002, [date omitted] 2008, [date omitted] 2009, and [date omitted] 2014, and their son [name omitted], born on March 28, 2002, who is the applicant in the parallel S 42 AY 4025/20 ER , stated that they are from Kosovo and entered Germany on May 22, 2015. Applicants (1) and (2) informed the State Reception Authority (LAB) in Braunschweig that they were Kosovar nationals with knowledge of Albanian. After being assigned to the respondent's jurisdiction, they were continuously registered at the address "[address omitted] in Hildesheim." During the period in question, they had neither disposable 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 as manifestly unfounded in a decision dated September 15, 2015. It found no grounds for prohibiting deportation and ordered the applicants to leave Germany. Otherwise, they would be deported to Kosovo. The BAMF based its decision on the assumption that the applicants were Kosovar nationals of the Roma ethnic group.
The applicants initially held a temporary residence permit pursuant to Section 55 of the Residence Act (AufenthG) and have held a tolerated stay permit pursuant to Section 60a of the Residence Act (AufenthG) since November 2015. As far as can be seen from the administrative file, they continuously received basic benefits pursuant to Section 3 of the Asylum Seekers' Benefits Act (AsylbLG).
The Hildesheim Immigration Office initially contacted the applicants through attorney Peters, their representative in the asylum proceedings. In a letter dated September 25, 2017, addressed to applicant no. 1, the City of Hildesheim requested – after the expiration of the temporary suspension of deportation – that he and his wife appear in person and present valid national passports or substitute travel documents for all family members. The letter included information regarding 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 applicant 1, applicant 2, and their son xxx, requested that they appear in person and, among other things, submit 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 foreigners' file dated July 2, 2019, indicates, based on a notification from the State Criminal Police Office (LKA) dated June 30, 2017, that the applicants do not possess Kosovar citizenship, but rather Macedonian citizenship is presumed. Consequently, the city of Hildesheim changed the applicants' citizenship status to "undetermined.".
In a letter dated July 5, 2019, addressed to applicant no. 1, the city requested that those applicants 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 applicants' obligations under immigration law. According to a note dated August 22, 2019, the city had noticed that the applicants 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 applicants could not be returned to Serbia because their Serbian citizenship could not be confirmed. According to a notification from the "Readmission Kosovo" dated July 30, 2013, the applicants' Kosovar origin could not be verified. Subsequently, applicants 1 and 2 completed a questionnaire for identity and citizenship clarification, which included information about their parents and siblings.
In a letter dated October 7, 2019, addressed to applicant no. 2, the city of Hildesheim requested applicants nos. 1 and 2 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 applicant no. 1, the city requested, among other things, that the applicants 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 informed the applicants that, due to the coronavirus pandemic, no in-person appointments were currently possible.
The city of Hildesheim granted the applicants basic benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) for the period from June 1 to August 31, 2020, in the amount of €2,461.05 per month, by decision dated May 14, 2020. The applicants filed an objection to this decision on July 29, 2020, which they withdrew by letter dated August 14, 2020.
The applicants filed an objection on September 4, 2020, against the de facto granting of benefits, arguing that they were 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 applicants 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 €2,478.05 per month. In a letter dated September 15, 2020, the applicants stated that their objection was now directed against the decision of September 10, 2020.
In the meantime, on September 14, 2020, the applicants filed an application for an interim injunction.
They will present:
The applicants are entitled to privileged benefits because they have lived in Germany for more than four years and have not acted abusively. No such abuse of rights is evident from their immigration files. The applicants have always been willing to cooperate in obtaining passports. However, neither Kosovo nor Serbia will accept them. They were unable to obtain passports from the Kosovar embassy in Switzerland. The respondent should explain what steps the applicants should now take, while remaining willing to cooperate. Simply requesting documents is ineffective because they do not possess them. Further proceedings were discussed at an appointment at the Hildesheim immigration office on November 12, 2020. The applicants consider themselves stateless. Although they come from Kosovo, Kosovo, Serbia, and North Macedonia have all refused to accept their return due to lack of citizenship. The first applicant had never been to Germany before entering in 2015. There was no identity fraud. The second applicant is not a citizen of North Macedonia, as evidenced by the certificate issued by the Embassy of the Republic of North Macedonia in Berlin on December 2, 2020.
The applicants request:
The respondent is ordered, by way of preliminary injunction, to grant the applicants the requested benefits in the statutory amount from the date of receipt of this application by the court, provisionally and subject to the right of recovery, until a legally binding decision is reached on the applicants' objection of September 4, 2020, against the de facto grant of benefits from September 1, 2020, as amended by the decision of September 10, 2020, taking into account the legal opinion of the court.
The respondent requests that
the application be rejected.
He presents:
The applicants, whose nationality is unclear, are being tolerated due to a lack of travel documents after Kosovo refused to readmit them. They live in a self-contained apartment of approximately 62 square metersin a communal accommodation in Hildesheim and have, in doing so, have abused their legal rights to influence the duration of their stay in Germany. Since 2015, they have failed to appear for scheduled appointments to clarify their nationality and obtain passports, despite having been repeatedly informed of their obligations under immigration law. They have not responded to any of these requests. The mere claim of lacking documents is not legally relevant in the context of preliminary legal protection. Furthermore, their affidavit does not contain a clear statement regarding their nationality. The determination of citizenship is not a process of elimination.
The applicant no. 1 submitted a sworn statement on November 4, 2020, in which he essentially declared that he had provided truthful information about his identity and nationality.
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 for the claim to an order and the grounds for the order (see 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 applicants have 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, all applicants have credibly demonstrated to the Chamber's satisfaction their entitlement 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 holders of a temporary suspension of deportation pursuant to Section 60a of the Residence Act, the applicants fall within the scope of the Asylum Seekers' Benefits Act (AsylbLG), as stipulated in Section 1, Paragraph 1, No. 4 of this Act. They have also fulfilled the 18-month prior residence requirement and were actually present in Germany during the period in dispute, beginning on September 14, 2020. The Chamber is convinced that this applies even if the applicants were actually in France from December 2017 to July 2018, and this were to be considered a significant interruption of their stay in Germany.
In the court's view, 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 AsyIbLG, 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.
Based on the foregoing, applicants 1 and 2, as well as applicant 3, have not demonstrably misrepresented their identity since reaching the age of 18, within the scope of the standard of review applicable in preliminary legal protection proceedings. No such allegation can be inferred from the administrative records, the immigration file, or the respondent's submissions in the court proceedings. No objective evidence of deliberate identity deception is apparent. The fact that Kosovo, Serbia, and North Macedonia have not recognized the applicants' respective citizenships under the stated identities does not—in the absence of further factual evidence—indicate that the claimed personal details are incorrect, but at most allows for speculation in that direction. However, this is not sufficient to prove an abuse of rights in the sense of intentional conduct, especially since the burden of proof for this criterion excluding entitlement lies with the benefit authority (cf. Cantzler, in: Commentary on the Asylum Seekers' Benefits Act, 1st edition 2019, § 2, marginal note 28 with further references).
Furthermore, the Chamber is convinced that there was no serious breach of the obligations to cooperate under immigration law that would have affected the duration of the stay in Germany. Generally, failure to comply with specific obligations to cooperate under immigration or asylum law can constitute an abuse of rights (see the judgment of the Federal Social Court of June 17, 2008 – B 8 AY 8/07 (para. 17) and B 8 AS 9/07 R (para. 15)). This obligation does not apply if the act of cooperation is futile from the outset or unreasonable for the person entitled to benefits (see Cantzler, loc. cit., § 41; Oppermann, in: jurisPK-SGB XIII AsylbLG, § 2, para. 65).
In this particular case, all requests to submit a national passport or equivalent travel document were futile from the outset because the immigration file shows that the City of Hildesheim assumed from the beginning that the applicants held Kosovar and, alternatively, Serbian citizenship, which was not confirmed. Therefore, it was pointless from the start to demand passports from these countries, which did not recognize the applicants' citizenship. The State Criminal Police Office of Lower Saxony (LKA Niedersachsen) was aware of this as early as June 2017, but this information was apparently not passed on to the responsible immigration authorities. The State of Serbia also denied the applicants' Serbian citizenship as early as 2013, a fact that apparently only came to the attention of the City of Hildesheim in 2019. The Chamber is convinced that the immigration office's memorandum of July 2, 2019, and the email from the Lower Saxony State Criminal Police Office (LKA) of October 17, 2019 (page 169 of the immigration file) clearly illustrate this situation, leading to the official consequence that Macedonian citizenship was subsequently investigated. In the Chamber's view, applicants 1 and 2 cooperated sufficiently in this investigation by completing a questionnaire with comprehensive information about their family relationships. The City of Hildesheim appears to have taken this circumstance and the changed immigration law situation into account in its letter of January 7, 2020, addressed to applicant 1. This letter now only required the submission of biometric passport photos, not passport documents. It is reasonable to assume that this reflects the recognition that the immigration office's actions regarding the target countries of Kosovo and Serbia were futile.
The fact that applicant no. 1 is not a North Macedonian national is established by the corresponding declaration from the Embassy of the Republic of North Macedonia dated December 2, 2020. This finding is likely largely attributable to the applicant's cooperation, so that the Chamber—upon preliminary review—cannot identify any serious breach of the duty to cooperate that would have affected the duration of her stay in Germany. Rather, it is now incumbent upon the immigration authority of the city of Hildesheim to examine any indications of the applicant's other nationality or to initiate an investigation to determine statelessness.
Furthermore, the application of applicants 3 to 6 would be successful even if the parents had acted abusively. Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) requires "self-influence" regarding the length of stay, and the conduct of legal representatives is not attributable to them due to its highly personal nature (see the Federal Social Court's judgment of June 17, 2008 – B 8/9b AY 1/07 R –). During the period in question, the court finds that there was no intentional abuse of rights, particularly since the requests for cooperation regarding immigration law were addressed exclusively to one parent, and the minors' knowledge of the required obligations appears questionable. The same applies to applicant 3 regarding her lack of knowledge after she reached the age of majority. From August 19, 2020 onwards, no requests for cooperation regarding immigration law were addressed directly to her (apparently also due to the COVID-19 pandemic).
Since applicants 1 and 2, as a married couple, are already assigned to standard benefit level 2, it is irrelevant whether they are accommodated in communal housing, which also results in standard benefit level 2. The classification as communal housing also has no effect on the standard benefit levels of the other household members, applicants 3 to 6, in this particular case.
The applicants have credibly demonstrated a particular urgency. This arises from the essential nature of the benefits, even though their procedural conduct, namely the belated submission of a sworn affidavit after the court had already explained the urgent necessity of such an affidavit to substantiate their claims in three separate rulings, can be interpreted as an indication that the applicants themselves did not consider their request for legal protection to be of paramount urgency.
The decision on costs follows from Section 193 Paragraph 1 of the Social Court Act (SGG).
Due to the prospects of success, the applicants were 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 claim exceeds €750. 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 -).
The following is information on legal remedies.
