VERDICT
S 42 AY 135/20
In the legal dispute
xxx,
– Plaintiff –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
Göttingen District,
represented by the District Administrator,
Reinhäuser Landstraße 4, 37083 Göttingen
– Defendant –
The 42nd Chamber of the Social Court of Hildesheim, in its oral hearing of December 22, 2020, with Judge xxx and Lay Judges xxx and xxx presiding, has ruled as follows:
- The defendant is ordered, with the annulment of the decision of 21 February 2020 as amended by the appeal decision of 6 April 2020, to grant the plaintiff basic benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) for the period from 21 February to 31 March 2020.
- The defendant must reimburse the plaintiff for his extrajudicial costs.
- The appeal is not admitted.
FACTS
The plaintiff seeks the granting of basic benefits in accordance with Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) also for the period from February 21 to March 31, 2020.
The plaintiff, born in 1999, is a Serbian citizen and entered Germany on February 12, 2020. He moved in with his wife, witness xxx, born in 1996, who, like their child born on September 3, 2019, is a Serbian citizen and lives in an apartment at xxx in xxx. The wife and child receive benefits to secure their livelihood under the German Social Code, Book Two (SGB II) – basic income support for job seekers – (see the notification from the Göttingen District Job Center dated December 12, 2019). During the period in question, the plaintiff had neither assessable income nor realizable assets.
The plaintiff and the witness visited the social welfare office of the city of xxx on February 21, 2020. According to the note of the caseworker and witness, Mr. xxx, dated March 27, 2020, the couple had come to inquire about the plaintiff's options for receiving benefits. He had learned from an inquiry with the immigration office that the plaintiff did not have a residence permit and should contact the immigration authorities urgently. He then explained the requirements for receiving benefits under the Asylum Seekers' Benefits Act (AsylbLG), whereupon the couple thanked him and stated that they would immediately try to arrange an appointment with the immigration authorities. No application for benefits was submitted and therefore no application was rejected, and no application form was requested.
The plaintiff applied on February 24, 2020 for the issuance of a residence permit or, alternatively, a certificate of fictitious residence or a tolerated stay, and declared that he belonged to the Roma ethnic group.
The plaintiff's legal representative filed an objection by letter dated March 23, 2020, against what he considered to be the verbal denial of benefits on February 21, 2020, by witness xxx. The plaintiff, accompanied by his wife, had applied for benefits under the Asylum Seekers' Benefits Act (AsylbLG), which Mr. xxx had verbally denied. Mr. xxx had stated that the plaintiff was a tourist and therefore not entitled to benefits, especially since he had neither a residence permit nor a temporary suspension of deportation. However, the plaintiff argued that a temporary suspension of deportation was not a prerequisite for benefits because, according to Section 1 Paragraph 1 No. 5 of the AsylbLG, an enforceable obligation to leave the country was sufficient. If he was not subject to an enforceable obligation to leave the country before the expiration of the 90-day period for visa-free entry, he would be entitled to benefits under the German Social Code, Book XII (SGB XII), or, if interpreted in conformity with the constitution, under the AsylbLG. According to the ruling of the Federal Constitutional Court of July 18, 2012 —1 BvL — there must be no gap in benefits between the various welfare systems, because human dignity cannot be relativized in migration policy. The plaintiff has no income or assets.
The defendant rejected the objection with a formal notice of rejection dated April 6, 2020, arguing that, according to his passport, the plaintiff had repeatedly traveled between xxx and his residence abroad before entering Germany on February 12, 2020. The objection was inadmissible because it was not directed against an administrative act. The witness's statement indicated that the alleged oral administrative act had not been issued. Rather, it had been a purely informational conversation during which the plaintiff had neither expressed any intention to submit an immediate application for benefits nor had a corresponding application form been requested or provided. The witness's statements did not constitute a legal consequence. As evidenced by page 138 of the administrative file, the notice of rejection bears a "deadline" dated May 4, 2020.
Following the initiation of preliminary legal proceedings (S 42 AY 84/20 ER) and a written application for benefits dated March 31, 2020, which was received by the defendant the following day, the defendant granted the plaintiff basic benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) for the period from April 1 to September 30, 2020, by decision dated May 18, 2020, in advance until the final clarification of the right of residence.
The plaintiff filed a lawsuit on June 8, 2020 against the objection decision which, according to the date stamp, was received by his legal representative on May 7, 2020.
In support of his claim – in conjunction with his submissions in the preliminary injunction proceedings and the statement of grounds for appeal – he argues:
The witness clearly stated, together with the plaintiff, during the interview on February 21, 2020, that he intended to apply for benefits. This statement constitutes an application within the meaning of Section 22 of the Administrative Procedure Act (VwVfG) or Section 16 Paragraph 1 of the First Book of the Social Code (SGB I) – General Part. The application, made orally, was rejected orally by Mr. xxx, regardless of whether he was authorized to do so internally. It was also not stated that the plaintiff had entered the country on a tourist visa, as he, being a Serbian citizen, is entitled to visa-free entry. Consequently, his residence status could not be determined.
The defendant rejected the application of February 21, 2020, for the period up to March 31, 2020, by decision dated December 7, 2020, stating as grounds that, pursuant to Section 1 of the Asylum Seekers' Benefits Act (AsylbLG), there was no entitlement to benefits. This was because, at the time of application, the plaintiff was neither tolerated nor subject to enforceable deportation, as he had entered the country visa-free for 90 days as a Serbian citizen. No asylum application had been submitted by April 1, 2020.
The plaintiff requests
that the defendant, by setting aside the oral decision of February 21, 2020 as amended by the appeal decision of April 6, 2020, be ordered to grant the plaintiff basic benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) to the extent provided by law for the period from February 21 to March 31, 2020.
The defendant requests
that the action be dismissed.
He presents his case with reference to the issued decisions.
The court heard evidence by questioning witnesses xxx and xxx regarding the circumstances of the meeting on February 21, 2020, at the city of xxx.
Regarding the further submissions of the parties, reference is made to the contents of the court file, the court file for proceedings S 42 AY 84/20 ER and the administrative file.
REASONS FOR DECISION
The lawsuit is successful.
The action, brought as a combined action for annulment and performance, is admissible. The defendant issued an administrative act on February 21, 2020, to the satisfaction of the court. According to Section 35, Sentence 1 of the Administrative Procedure Act (VwVfG), an administrative act is any order, decision, or other sovereign measure taken by an authority to regulate an individual case in the field of public law and which is directed at producing direct legal effects externally. The decision to deny benefits under the Asylum Seekers' Benefits Act (AsylbLG) constitutes an administrative act. The assessment of whether an official action constitutes an administrative act must be based on the perspective of an objective recipient. The taking of evidence regarding the plaintiff's meeting with witness xxx on February 21, 2020, has convinced the court that his request to receive benefits under the AsylbLG was denied. The plaintiff and witness xxx gave consistent accounts of the meeting, including witness xxx's consultation with the immigration office and the plaintiff's sole motivation for applying for benefits. Clarifying the plaintiff's residency status was not the purpose of the initial meeting. Upon re-entering the room, they were informed that the plaintiff could not receive benefits because this was apparently determined by his residency status. From the objective perspective of the recipient, this constituted a denial of benefits, even if witness xxx may not have been authorized to make such a decision internally. However, the defendant, as the legal entity responsible, must accept this ruling. Furthermore, from the witness's perspective, all relevant facts were present to allow for a decision regarding the granting of benefits. This is consistent with the fact that the plaintiff's income and assets were apparently not inquired about due to their lack of relevance. Whether the witness intended to make a decision externally is irrelevant, as the external impression was that the benefit application had been decided by an official authority. This is further supported by the plaintiff's immediate consultation with his legal representative, who then filed an objection. Due to the lack of information on legal remedies, the one-year time limit applied to the objection.
The lawsuit is also justified.
The defendant's decision of February 21, 2020, as amended by the decision on the objection of April 6, 2020, is lawful and does not infringe upon the plaintiff's rights. The decision of December 7, 2020, became the subject of the legal proceedings pursuant to Section 96 of the Social Court Act (SGG), since it is established that an oral administrative act was issued on February 21, 2020.
The married plaintiff is, in the Chamber's opinion, entitled to basic benefits pursuant to Sections 3, 3a Paragraph 1 No. 2b and Paragraph 2 No. 2b of the Asylum Seekers' Benefits Act (AsylbLG) during the period in dispute. He is not entitled to privileged benefits because he did not fulfill the 18-month prior residence requirement upon entering the country on February 12, 2020.
The plaintiff, who had no income or assets during the period in question and was actually residing in Germany, is entitled to benefits pursuant to Section 1 Paragraph 1 No. 5 of the Asylum Seekers' Benefits Act (AsylbLG) because he was subject to an enforceable obligation to leave the country during that time. He entered Germany legally without a visa—based on the contractual provisions between Serbia and Germany—and submitted an application on February 24, 2020, for a residence permit, a certificate of deemed residence, and a temporary suspension of deportation. Pursuant to Section 58 of the Residence Act (AufenthG), he was generally obligated to leave the country because he did not possess a residence permit. According to Section 58 Paragraph 2 Sentence 1 No. 2 of the Residence Act, the obligation to leave the country is enforceable if the foreigner has not yet applied for the initial issuance of the required residence permit or for its extension, or if, despite having applied, his stay is not deemed permitted under Section 81 Paragraph 3 or his residence permit is not considered valid under Section 81 Paragraph 4. In the Chamber's view, the conditions for the third alternative are met in the present individual case, so that eligibility for benefits under the German Social Code, Book XII (SGB XII) does not need to be examined.
The decision on costs follows from Section 193 Paragraph 1 of the Social Court Act (SGG).
Pursuant to Section 144, Paragraph 1, Sentence 1, No. 1, and Paragraph 2 of the Social Court Act (SGG), the appeal requires leave to appeal because the defendant's claim is below the threshold of €750. Leave to appeal is denied because the case is not of fundamental importance and does not deviate from, nor is it based on, a decision of the Higher Social Court, the Federal Social Court, the Joint Senate of the Highest Courts, or the Federal Constitutional Court.
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