DECISION
In the appeal proceedings
xxx,
Applicant and complainant,
Legal representative: Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
City of Kassel, represented by the Magistrate – Legal Department –,
Obere Königsstraße 8, 34117 Kassel,
Respondent and appellant,
Joinder to the proceedings:
City of Bayreuth – Social Welfare Office – Asylum –, represented by the Mayor,
Dr.-Frank-Straße 6, 95445 Bayreuth,
The 4th Senate of the Hessian State Social Court in Darmstadt decided on December 22, 2020, through the presiding judge of the State Social Court xxx, the judge of the State Social Court xxx and the judge of the State Social Court xxx:
Upon the applicant's appeal, the decision of the Social Court of Kassel dated August 10, 2020 is set aside and the respondent is ordered by way of preliminary injunction to grant the applicant provisional benefits in the amount of the basic benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) for the period from October 24, 2020 to January 31, 2021.
Furthermore, the application and the appeal are rejected.
The respondent shall reimburse the applicant for half of the necessary costs of the appeal.
REASONS
The appeal filed with the Hessian State Social Court on August 31, 2020, in which the applicant essentially requests,
overturning the decision of the Kassel Social Court of August 10, 2020
- to order the respondent, by way of an interim injunction, to grant the applicant benefits to secure her livelihood in accordance with Sections 3 and 4 of the Asylum Seekers' Benefits Act (AsylbLG) to the extent permitted by law from July 31, 2020 until a decision on the objection is issued
- Alternatively, to order the intervener by way of an interim injunction to grant the applicant benefits to secure her livelihood in accordance with Sections 3 and 4 of the Asylum Seekers' Benefits Act (AsylbLG) to the extent permitted by law from July 31, 2020 until a decision on the objection is issued,
and the application of December 11, 2020, - to provisionally order the respondent to pay the invoices of the Agaplesion Diakonie-Kliniken Kassel until the main proceedings are concluded with final legal effect,
are partly permissible and partly justified.
The extension of the subject matter of the appeal to include inpatient treatment costs pursuant to Sections 4 and 6 of the Asylum Seekers' Benefits Act (AsylbLG), as pursued in the application of December 11, 2020, is inadmissible. The first instance court did not address the factual circumstances of inpatient treatment; therefore, this constitutes a new subject matter of the dispute, which the appeal seeks to expand the benefit claim to include. This appeal must be assessed analogously to Section 99 of the Social Courts Act (SGG). However, the requirements of Section 99 SGG do not exempt the appellant from the other admissibility requirements. It is argued, with considerable justification, that an amendment to the application pursuant to Section 99 of the Social Court Act (SGG) is not permissible if the Higher Social Court lacks jurisdiction over the subject matter of the dispute (Thuringian Higher Social Court, decision of February 22, 2012 – L 4 AS 1825/11 B ER –, juris; Guttenberger in: Schlegel/Voelzke, jurisPK-SGG, Section 99 SGG, marginal note 47, regarding appeals). Notwithstanding this, the respondent has not consented to the amendment; therefore, the decisive factor is whether the amendment is expedient, which must be denied. The subject matter of the dispute would require further investigation, which would further delay the decision on the original subject matter of the appeal.
The complaint regarding the granting of basic benefits is partially justified.
Pursuant to Section 86b Paragraph 2 Sentences 1 and 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 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. A prerequisite for issuing a preliminary injunction is therefore that the applicant has a substantive legal claim to benefits in the main proceedings (claim for an injunction) and that it is unreasonable to expect them to await the decision in the main proceedings (ground for an injunction). Pursuant to Section 86b Paragraph 2 Sentence 4 SGG in conjunction with Section 920 Paragraph 2 of the Code of Civil Procedure (ZPO), the claim for an injunction and the ground for the injunction must be substantiated.
These requirements must be specified in light of the guarantee of effective legal protection under Article 19 Paragraph 4 of the Basic Law (GG) (see, for example, Federal Constitutional Court, Decision of August 6, 2014 – 1 BvR 1453/12 –, juris, para. 10 with further references). The more serious the threatened violation of fundamental rights and the higher its probability of occurrence, the more intensive the factual and legal analysis of the matter must be, even in preliminary injunction proceedings. If a clarification of the factual and legal situation corresponding to the threatened violation of fundamental rights is not possible in expedited proceedings – for example, because it would require further factual investigations that cannot be carried out in the short time available – it is constitutionally permissible for the decision on granting preliminary injunction to then be based on a balancing of interests. However, if the preliminary injunction proceedings completely assume the significance of the main proceedings and there is a risk of the parties' fundamental rights being permanently prevented from being exercised, the courts must, when setting the requirements for establishing prima facie evidence to justify benefits for subsistence in preliminary injunction proceedings, take into account the significance of the fundamental right under Article 1 Paragraph 1 of the Basic Law in conjunction with Article 20 Paragraph 1 of the Basic Law. The requirements for establishing prima facie evidence must be oriented towards the legal protection objective pursued by the respective legal claim.
The Senate's previous official investigations have not resulted in a sufficiently thorough factual and legal analysis of the matter. In particular, the question of jurisdiction, which cannot remain open due to the inapplicability of Section 43 of the German Social Code, Book One – General Part – (SGB I) pursuant to Section 9 of the Asylum Seekers' Benefits Act (AsylbLG), depends on a number of factual and legal difficulties (see 1.). Regarding a claim for an injunction against the respondent, the prospects of success are currently uncertain (see 2.). Therefore, the Senate decides based on a balancing of interests, which, at least for the period from the beginning of the need for inpatient treatment, favors the applicant (see 3.).
1. Determining jurisdiction depends on a number of factual and legal difficulties.
According to the legal opinion of the Kassel Administrative Court in its judgment of October 16, 2019 – 4 K 2575/16.KS – the applicant is not subject to any asylum-related geographical restrictions, as these have either expired pursuant to Section 59a of the Asylum Act (AsylG) or have become irrelevant, since there has been no intention since 2001 to deport the applicant specifically on the basis of the deportation orders issued during the asylum proceedings (pp. 12 and 13 of the administrative court's judgment). However, the applicant is subject to a residence requirement, which has been in effect since January 1, 2015, replacing a previous geographical restriction under Section 61 Paragraph 1d of the Residence Act (AufenthG) (p. 14). The Senate understands these statements to mean that the elimination of a statutory spatial restriction under Section 61 Paragraph 1 of the Residence Act (AufenthG) as of January 1, 2015, was effectively compensated by a residence requirement under Section 61 Paragraph 1d of the Residence Act (AufenthG) by operation of law. This is because, based on the administrative files of the Kassel Immigration Office and the Central Immigration Office of Upper Franconia (ZAB Oberfranken) (reporting order of October 15, 2020), no specific administrative acts from around 2015 could be found.
Regarding Section 61 Paragraph 1d Sentence 2 of the Residence Act (AufenthG), it must be noted that residence is to be established at the place where the foreigner resided at the time of the decision on granting a temporary suspension of deportation (Duldung). The documents consulted did not definitively establish when the applicant was last granted a temporary suspension of deportation. The lack of a determination of a statutory residence requirement apparently led the intervener to assume, between 2015 and the issuance of the administrative court's judgment, that the respondent had become responsible.
If the applicant was not granted any temporary suspension of deportation after the expiration of the asylum-related spatial restrictions (which the Senate's investigations suggest), the question arises as to how de facto tolerated deportation can be taken into account under Section 61 Paragraph 1d of the Residence Act, or whether, in such a case, only an individual residence requirement in the form of an administrative act is possible. The administrative court did not develop a legal opinion on this matter in the aforementioned decision and also did not address the problem of the lack of a temporary suspension of deportation.
Finally, the main proceedings will have to assess whether and what significance it has for the interpretation and legal consequences of Section 61 Paragraph 1d of the Residence Act that the applicant, with the knowledge and consent of the interveners, moved from Bayreuth to a women's shelter in Kassel in 2011, that precautionary relocation applications submitted by the Bavarian immigration authorities have apparently remained undecided, and that no attempts have been made for years to terminate the applicant's residence in the Federal Republic of Germany.
For the avoidance of doubt, the Senate points out that the considerations made by the Kassel Administrative Court regarding jurisdiction for granting a residence permit are not binding on the legal questions to be decided here.
2. Whether a claim exists remains an open question.
The application for benefits is based on the application of July 14, 2020 (page 596 of the respondent's benefits file). Therefore, it is irrelevant that the respondent refers to having definitively rejected the benefits by decision of April 2, 2020.
As a person subject to enforceable deportation pursuant to Section 1 Paragraph 1 No. 5 of the Asylum Seekers' Benefits Act (AsylbLG), the applicant belongs to the group of persons entitled to benefits.
Based on the contents of the respondent's benefits file, there is no doubt, at the standard of preliminary legal protection, regarding the lack of income and assets pursuant to Section 7 of the Residence Act (AufenthG). In this respect, reference is made to the status of the official file, which formed the basis for the benefit approvals up to March 2020.
The amount of the benefit claim is not limited to benefits under Section 1a of the Asylum Seekers' Benefits Act (AsylbLG), as the Senate has not been sufficiently certain that deportation measures cannot be carried out for reasons attributable to the applicant herself (Section 1a, Paragraph 3 AsylbLG). According to the evaluated files, no deportation measures were attempted for years. Therefore, it is not apparent that previous refusals to cooperate in obtaining a Turkish passport were the sole cause of the non-deportation.
The scope of benefits under Sections 10a and 11 Paragraph 2 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG) can, as indispensable assistance within the meaning of Section 11 Paragraph 2 AsylbLG, also include further benefits up to the level of regular benefits (Groth in: Schlegel/Voelzke, jurisPK-SGB XII, 3rd edition, Section 11 AsylbLG marginal note 50 (as of May 25, 2020)).
3. In light of all the above, the Senate must decide based on a balancing of interests. If the outcome of the main proceedings proves uncertain, the court must, within the framework of this balancing of interests, weigh the disadvantages that would arise if an interim injunction were not issued and the legal protection in the main proceedings were successful, against the disadvantages that would arise if the requested interim injunction were granted but the main proceedings were ultimately unsuccessful.
In this balancing, the Senate must take into account that the applicant's state of health, characterized by the fact that she required inpatient treatment from October 24, 2020, onwards, may also have implications for the question of jurisdiction. Thus, pursuant to Section 10a Paragraph 1 Sentence 3 in conjunction with Section 11 Paragraph 2 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG), the respondent is obligated to grant essential benefits even if the person entitled to benefits is not at the place of residence required and therefore outside the jurisdiction of the agency responsible under Section 10a Paragraph 1 Sentence 1 of the AsylbLG, albeit in a limited amount. Beyond all unresolved questions regarding the interplay between the jurisdictional rules in Section 10a Paragraph 1 of the AsylbLG and the benefit restriction under Section 11 Paragraph 2 of the AsylbLG, it can be assumed that Section 11 Paragraph 2 of the AsylbLG indirectly implies that the agency responsible for benefits under this law is not always and under all circumstances the agency at the place of assignment (but rather the actual place of residence is decisive for local jurisdiction). Section 11, paragraph 2 of the Asylum Seekers' Benefits Act (AsylbLG) establishes not only the responsibility of this authority for providing benefits (albeit initially only for benefits to this limited extent), but also that the authority's responsibility (at least for benefits to this extent) is not solely based on the allocation decision. Furthermore, the limitation of claims against the agency responsible for the actual place of residence indicates that, otherwise – were there no statutory limitation of benefits – this agency would, according to the legislator's intent, be responsible for providing unrestricted assistance (Federal Administrative Court, decision of September 2, 1996 – 5 B 53/96 –, juris para. 12). Conversely, contrary to the respondent's legal opinion, the purpose of Section 11 Paragraph 2 of the Asylum Seekers' Benefits Act (AsylbLG), namely to prevent unwanted internal migration under immigration law (Groth in: Schlegel/Voelzke, jurisPK-SGB XII, 3rd ed., Section 11 AsylbLG, marginal note 25 (as of May 25, 2020)), also argues against the possibility that, according to Section 11 Paragraph 2 AsylbLG, a claim against the agency in the area subject to the residency requirement remains valid (see also Higher Social Court of North Rhine-Westphalia, decision of April 2, 2012 – L 20 AY 24/12 B ER –, juris marginal note 36). This is also the reason why the applicant's alternative claim cannot succeed.
It is a mitigating factor for the applicant that these are subsistence-level benefits that have been completely withheld since April 2020. Since the applicant did not explicitly assert significant ongoing shortfalls in coverage resulting from the lack of benefits during the period from the initial application until the need for inpatient treatment arose, the Senate, in its deliberations, refrained from imposing an obligation to make back payments for this period.
For the assessment of the burden of proof between the respondent and the intervener, it is decisive that, for the current period, the obligation to provide benefits can be established both based on original responsibility (as described in point 1) and as the entity responsible for the applicant's actual residence, considering the necessity of providing essential services.
To avoid subsequent disputes, the Senate points out that the obligation to grant provisional benefits has no prejudicial effect on the final determination of responsibility or any potential reimbursement dispute.
The decision on costs is based on § 193 of the Social Court Act (SGG) by analogy. The granting of the appeal relates to a period after the issuance of the first-instance decision, which is why it is appropriate to only partially reimburse the costs of the appeal.
This decision is not subject to appeal pursuant to Section 177 of the Social Court Act (SGG).
