DECISION
In the administrative dispute proceedings
of the Lord xxx,
applicant,
Authorized:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen, – 0056/21 –
against
the Werra-Meißner district, represented by the district committee,
Bremer Straße 10 a, 37269 Eschwege,
respondent,
because of immigration law
the Kassel Administrative Court - 4th Chamber - has carried out
Judge at VG xxx as chairwoman,
judge at VG xxx,
judge Dr. xxx
decided on February 2, 2021:
It is determined that the applicant's lawsuit of February 1, 2021 against the respondent's decision of January 8, 2021 (ref. 4 K 178121.KS) has suspensive effect. Otherwise the application is rejected.
The respondent must bear the costs of the proceedings.
The amount in dispute is set at EUR 2,500.00.
The applicant is granted legal aid for the first instance without obligation to pay in installments and lawyer Sven Adam, Lange Geismarstr. 55, 37073 Göttingen. The approval of legal aid is subject to the proviso that costs that would not have been incurred if a lawyer established in the district of the administrative court had been appointed do not have to be reimbursed (§ 166 para. 1 sentence 1 VwGO in conjunction with § 121 para. 3 ZPO).
REASONS
The application to order the suspensive effect of the applicant's action against the respondent's decision of January 8, 2021 is inadmissible, although in the present case, in accordance with Section 16a Paragraph 1 HessAGVwGO in conjunction with Section 2.6 of the appendix to Section 16a HessAGVwGO, there is a preliminary procedure in accordance with Section 68 VwGO no longer applies and the lawsuit filed is therefore the available legal remedy. However, the application to order the suspensive effect of this action is ineffective and the applicant lacks the necessary legal protection interest because the action has a suspensive effect in accordance with Section 80 (1) VwGO. This does not apply according to Section 80 Paragraph 2 Sentence 1 No. 3 VwG() in conjunction with Section 2 Paragraph 5 Hess. State Reception Act (LAG). According to this, the action against the allocation order alone does not have a suspensive effect, but not every action, a legal dispute according to the Hess. concerning LAG. However, since the subject of the dispute at hand is not an allocation decision, but rather a transfer to another accommodation, the lawsuit has a suspensive effect in the absence of a different legal regulation because the respondent has not ordered immediate execution.
However, the court interprets the application to order the suspensive effect of the applicant's action in accordance with Section 80 Paragraph 5 VwGO, taking into account the expressed request for legal protection in accordance with Section 122 Paragraph 1, Section 88 VwGO, as containing the application as a minus , in analogous application of Section 80 Paragraph 5 Sentence 1 VwGO, to determine that the action has a suspensive effect. The application understood in this way is successful.
Its admissibility arises from the fact that Article 19 Paragraph 4 Sentence 1 of the Basic Law requires provisional legal protection to be granted analogous to Section 80 Paragraph 5 VwGO in the event of a threat of de facto enforcement despite the filing of a lawsuit. Such legal protection is necessary if an authority threatens to execute the contested administrative act, sets about enforcing it or continues an execution that has already begun, despite the suspensive effect of an appeal.
That's the case here. It is to be feared that the respondent will execute his order of January 8, 2021 regardless of the lawsuit filed against him. Because he apparently assumes that this order can be enforced immediately and the applicant must expect that enforcement measures will be taken immediately. The deadline set for him to vacate the previously inhabited accommodation expired on February 1st, 2021, i.e. yesterday, and the respondent has announced compulsory eviction in the event of a violation for the execution of his eviction order. Furthermore, in his response to the open letter from the residents of the shared accommodation in dispute, he announced that the tenancy agreement for this property would end on March 31, 2021. This short time window shows that there is concern that the defendant will take enforcement measures before the lawsuit against his order of January 8, 2021 has been decided.
Even if there is no reason for this in these proceedings, in view of the existing time pressure in order to avoid further expedited proceedings, we would like to point out the following as a precautionary measure regarding the legality of the respondent's contested order:
As far as § 3 paragraph 2 Hess. LAG according to § 1 Hess. LAG persons to be admitted and accommodated by the districts and municipalities are not entitled to accommodation in a specific accommodation and the locally responsible district committee or the municipal board can order accommodation in another accommodation or a transfer within the accommodation, the latter is the conviction of the Court is not just about regulating the permissibility of accommodating the person concerned elsewhere, but about a power the exercise of which requires official discretion. The ones based on Section 3 Paragraph 2 Sentence 2 Hess. According to Section 114 Sentence 1 VwGO, a decision supported by the LAG is therefore (only) open to judicial review as to whether, on the one hand, the factual requirements are met and the authority, if applicable, recognized that its discretion was granted (i.e. there was no misuse of discretion), whether Authority's discretion was used in a manner consistent with the purpose of the authorization (i.e. there was no misuse of discretion) and whether the legal limits of the discretion were adhered to (i.e. there was no excess of discretion).
Insofar as the implementation decision must be justified, it is sufficient, in view of the extensive freedom of organization of the municipalities, that the general justification requirements according to Section 39 Para. 1 Hess. VwVfG must be met, according to which the aspects leading to the discretionary decision must be recorded in writing. According to Section 114 Sentence 2 VwGO, these considerations can be supplemented in administrative court proceedings, but cannot be made up and thus exercised for the first time.
Based on these standards, the respondent must be able to counter that his decision does not contain any information about his discretionary considerations. The circumstances relevant to the selection of the new accommodation are not explained. However, due to this inadequate justification, the contested order does not meet the criteria for a discretionary decision under Section 39 (1) Hess. VwVfG requirements. As a precautionary measure, it should be noted that this lack of justification can only be remedied (Section 45 Paragraph 1 No. 2, Section 114 VwGO) if it is sufficiently clear from the official file that it is actually only a lack of justification and not a widespread loss of discretion acts. Since the fact that the shared accommodation is closed is in accordance with Section 3 Paragraph 2 Sentence 2 Hess. LAG leaves no room for maneuver in making decisions on a case-by-case basis, there should be no need for further explanations with regard to the decision-making discretion, but this does not apply with regard to the selection discretion, i.e. to the question of which other accommodation the transfer should take place. A decision that is free of discretionary errors requires that the person concerned be heard and given the opportunity to present their concerns. These must then be included in the considerations according to their weight and weighed against the options available to the municipality.
The cost decision is based on Section 155 Paragraph 1 Sentence 3 VwGO.
The application for approval of legal aid must be granted because, given his personal and economic circumstances, the applicant cannot afford the costs of the litigation in installments and the desired legal action offers sufficient prospects of success for the above reasons and does not appear to be wanton (Section 114 ZPO in conjunction with . V. with Section 166 VwGO).
The amount in dispute is set at EUR 2,500.00 in accordance with Sections 53 Paragraph 2 and 52 Paragraph 2 GKG. In the absence of sufficient factual evidence to assess the economic significance of the matter for the applicant, the court based the main case on the default value in dispute of EUR 5,000.00 and halved this for the expedited proceedings in view of the provisional nature of the legal protection sought here.
Instructions on legal remedies follow.
