DECISION
L 8 AY 118/20 B ER
S 42 AY 4026/20 ER Social Court Hildesheim
In the appeal proceedings
1. xxx,
2. xxx,
3. xxx,
4. xxx,
5. xxx,
6. xxx,
to 1-6 resident xxx
– Applicant and Respondent –
Legal representative:
for items 1-6: Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
Hildesheim District 908 Legal Department,
represented by the District Administrator,
Bischof-Janssen-Straße 31, 31134 Hildesheim
– Respondent and Appellant –
The 8th Senate of the Lower Saxony-Bremen State Social Court decided on February 4, 2021 in Celle through Judges xxx and xxx and Judge xxx:
The respondent's appeal against the decision of the Hildesheim Social Court of December 11, 2020 is dismissed.
The respondent must also reimburse the applicants' extrajudicial costs for the appeal proceedings.
REASONS
I.
The applicants are seeking, by way of preliminary legal protection, provisionally higher benefits under the Asylum Seekers' Benefits Act (AsylbLG).
The applicants are Roma. Applicant 1, born on [date redacted], and Applicant 2, born on [date redacted], are a married couple (married according to Roma custom), and Applicants 3 through 6 are their children. The family also includes two other sons of Applicant 1, [name redacted], born on [date redacted], and [name redacted], born on [date redacted], who are claiming higher benefits under the Asylum Seekers' Benefits Act (AsylbLG) in separate proceedings. With the exception of Applicant 6, born on [date redacted] in [location redacted], Switzerland, the names and dates of birth are based solely on information provided by Applicants 1 and 2. No identity documents exist, with the exception of the Swiss birth certificate for Applicant 6. Applicants 1 and 2, the sons xxx and xxx of applicant 1, and applicant 3, born on xx.xx.2002, were born in xxx in Kosovo; applicant 4, born on xx.xx.2008, and applicant 5, born on xx.xx.2009, were born in xxx in Serbia.
The family entered the Federal Republic of Germany on May 22, 2015, and applied for asylum. During his hearing with the Federal Office for Migration and Refugees (BAMF) in mid-September 2015, the first applicant stated essentially the following: They had lived in Switzerland for approximately two and a half years before entering Germany. He had last lived in [location redacted] in Kosovo. He had not resided there since 1999. From then until 2015, they had stayed in various European countries and unsuccessfully applied for asylum. For example, he had been in France, where he had to spend two and a half months in deportation detention. They had not found a country willing to accept them. The Republic of Kosovo had also refused to take them back. He had left Kosovo because of the war and had lived in various European countries. Now Kosovo no longer wanted him. He did not know what to do with his family. He would even return to Kosovo voluntarily if they would accept him there. He had never owned an identity card or a passport in his life. As Roma, they hadn't had any papers at all. It hadn't been that important to them. And when the war started, they simply fled. Even today, there are Roma in Serbia living there without any documents whatsoever. He had been on the move since 1999 and didn't know where to go anymore.
The Federal Office for Migration and Refugees (BAMF) rejected the applicants' asylum applications as manifestly unfounded in a decision dated September 15, 2015, denied any grounds for a prohibition of deportation, and ordered them to leave the country within one week. The applicants were threatened with deportation to Kosovo if they failed to leave within the specified timeframe. Their appeals were unsuccessful. Since then, the applicants have been granted tolerated stay status pursuant to Section 60a of the German Residence Act (AufenthG). They live in a self-contained apartment of approximately 62 square meters in a communal accommodation facility in Hildesheim.
Following the conclusion of the asylum procedure, the City of Hildesheim (the city), acting as the immigration authority (hereinafter referred to as the immigration authority), requested applicants 1 and 2 to appear in person on October 27, 2015, and to submit birth certificates or other proof of identity (passports, identity cards). Subsequently, in early November 2015, the applicants' then-representing attorney informed the immigration authority that the applicants might be stateless. As evidenced by the documents he attached from the previous Swiss asylum procedure (response from the Serbian Ministry of the Interior dated October 30, 2013, and email correspondence from "READEMISSION Kosovo" dated July 30, 2013), neither Serbia nor Kosovo had been able to determine that the applicants were nationals of their respective states. Consequently, they had each refused to deport them. The immigration office subsequently informed the lawyer on December 10, 2015, and April 6, 2016, that the fact that the Kosovar and Serbian embassies in Switzerland could not find the applicants' family listed under their personal details in the registers did not mean that the applicants were stateless. They could be registered under any personal details. No identity documents had been submitted. They themselves had stated that they were Kosovar nationals. Even stateless persons generally possess some form of identity document. The applicants were requested to submit a valid national passport or passport substitute, or any documents and other materials that could be relevant for establishing their identity and nationality, by the end of April, or to cooperate in such a way as to enable identification and thus the issuance of a passport substitute. This request was reiterated in a further letter to the lawyer dated September 6, 2016. A list detailing where and when the applicants had lived (country, city, etc.) was also requested. A questionnaire entitled "Questionnaire for Clarification of Identity and Nationality" was enclosed. The lawyer returned the completed form to the immigration office in early October 2016. Using the information provided, the immigration office initiated a readmission request to the Republic of Kosovo, which was rejected in early June 2017. It could not be established that the applicants were citizens of the Republic of Kosovo. Subsequently, the immigration office regularly summoned applicants 1 and 2 to appear for the timely renewal of their temporary residence permits and to present valid national passports or travel documents for all family members, in addition to the permits for their families. During these appearances and renewals, they received written instructions, including the requirement that a foreigner without a valid passport or travel document is obligated to cooperate in obtaining an identity document and to submit to the immigration office all documents and other materials in their possession that could be relevant to establishing their identity and nationality. In September 2019, Applicant 1 again completed the questionnaires concerning himself and Applicant 2 regarding the clarification of their nationality and submitted them to the immigration office, along with German translations of the information from the Republic of Serbia dated October 30, 2013, denying their Serbian citizenship, dated August 25, 2019. The immigration office has since assumed that the applicants' nationality is undetermined. In October 2019, the State Criminal Police Office of Lower Saxony suggested that the applicants' Macedonian citizenship be examined.
The city, acting on behalf of the respondent, granted the applicants basic benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) for the period from September 1 to December 31, 2020, in the total amount of €2,478.05, by decision dated September 10, 2020. The decision was served on the applicants' legal representatives on September 15, 2020. The applicants had previously assumed that the benefits would be granted implicitly through payment, without a formal decision, but had already filed an objection and submitted an urgent application to the Hildesheim Social Court (SG) on September 14, 2020, because, following notification of the grant decision and his objection filed on September 15, 2020, he had adjusted his position to reflect the new circumstances. The applicants essentially argued that they were entitled to so-called analogous benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) because they had already resided in Germany for more than four years and had not acted abusively. They stated that they had always been willing to cooperate in obtaining passports. However, neither Kosovo nor Serbia had been willing to accept them. Contrary to their previous assumption, they were also not citizens of the Republic of North Macedonia, as confirmed by the embassy of that country in Berlin on December 2, 2020. The respondent was therefore asked to explain specifically what further steps they could take. Simply requesting them to provide documents was ineffective, as they did not possess the necessary documents. As applicant 1 reaffirmed in his affidavit of November 4, 2020, he had provided truthful information in the completed questionnaires for identity and nationality clarification submitted to the immigration authorities. They felt stateless.
The respondent countered that the mere assertion of lacking documentation was irrelevant in the context of preliminary injunction proceedings. The applicants had not cooperated sufficiently in clarifying their identities. The information provided by applicant 1 in the questionnaires regarding the applicants' identities was partly incorrect (applicant 2 was not the mother of applicant 1's sons xxx and xxx) and partly contradictory (information regarding son xxx's place of birth). The accommodations occupied by the applicants in the communal housing did not constitute a dwelling in the strict sense, so the standard benefit level 2, applicable to accommodations in communal housing, was correctly applied for the calculation of benefits. If the standard benefit rates were paid in full, needs would be covered twice: firstly by cash payments and secondly by in-kind benefits provided by the operator of the accommodation. The accommodations were furnished, so there was no need to purchase furniture. Furthermore, electricity was provided as an in-kind benefit, as was regularly changed bed linen. Household appliances would be provided as a benefit in kind and repaired if necessary, and other maintenance work on the living spaces would also be carried out by the institution. In addition, cleaning services would be provided by the institution, and common rooms including technical equipment would be made available.
In the course of the expedited proceedings, the city, by decision dated November 23, 2020, again granted the applicants benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) for the period from January 1 to March 31, 2021. The applicants filed an objection to this decision on November 26, 2020, which, like the objection of September 15, 2020, is still pending.
By order dated December 10, 2020, the Social Court (SG) ordered the respondent, by way of preliminary injunction, to grant the applicants 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), for the period from September 14, 2020, until March 31, 2021, at the latest, unless a decision has been reached on the objection to the decision of September 10, 2020, before then, taking into account the basic benefits already provided for this period. The applicants had credibly demonstrated an entitlement to such benefits. As holders of a temporary suspension of deportation (Duldung), they belonged to the group of persons entitled to benefits under Section 1 Paragraph 1 No. 4 of the AsylbLG. They had also fulfilled the 18-month prior residence requirement and had actually resided in Germany during the period in dispute, beginning on September 14, 2020. The Chamber is convinced that this applies even if they had actually resided in France from December 2017 to July 2018, and this were to be considered a significant interruption of their stay in Germany. They also did not themselves abuse the legal process by influencing the duration of their stay in Germany. According to the standard of review applicable in preliminary injunction proceedings, applicants 1 and 2, as well as applicant 3 from the age of 18 onwards, did not demonstrably misrepresent their identity.
The administrative records, the immigration file, and the respondent's submissions in the court proceedings do not support such an allegation. No objective evidence of deliberate identity fraud is apparent. The fact that Kosovo, Serbia, and North Macedonia did not recognize the applicants' respective citizenships under the stated identities does not indicate—in the absence of further factual evidence—that the claimed personal details are incorrect. Rather, this at most allows for speculation in that direction. However, this is insufficient to prove an abuse of rights in the sense of intentional conduct, especially since the burden of proof for such abuse lies with the benefits agency. Furthermore, the court is convinced that there has been no serious breach of the obligations to cooperate under immigration law that affected the duration of the applicant's stay in Germany. Generally, the failure to comply with specific obligations to cooperate under immigration or asylum law can constitute an abuse of rights. This obligation does not apply, however, if the required cooperation is futile from the outset or unreasonable for the person entitled to benefits. In the present case, all requests for cooperation, specifically the (general) submission of a national passport or substitute travel documents, are futile from the beginning because the immigration file shows that the immigration authorities assumed from the outset that the applicants held Kosovar and, alternatively, Serbian citizenship, which has not been confirmed. Therefore, it was pointless from the beginning to demand passport documents issued by these countries, which do not recognize the applicants' citizenship. The authorities have since recognized the futility of the immigration authorities' actions regarding the target countries of Kosovo and Serbia. The fact that applicant 1 (meaning applicant 2) is not a North Macedonian citizen is established by the corresponding declaration from the Embassy of the Republic of North Macedonia dated December 2, 2020. This clarification was largely due to the cooperation of the applicants, so that no serious breach of their duty to cooperate could be identified that affected the duration of their stay in Germany. Rather, it is now incumbent upon the immigration authorities to examine indications of another nationality of the applicants or to initiate an examination to determine their statelessness.
Furthermore, the application of applicants 3 to 6 would be successful even if the parents had acted abusively. This is because 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. During the period in question, the court finds that, due to a lack of capacity for understanding, no intentional abuse of rights can be alleged, especially 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's lack of knowledge after she reached the age of majority. Since she reached the age of majority on August 19, 2020, no request for cooperation regarding immigration law was addressed 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 applicants 3 to 6, who are members of the same household.
The necessary special urgency of the matter arises from the essential nature of the services, which are essential for securing livelihoods.
The respondent filed an appeal against the decision on December 18, 2020. Applicants 1 to 3 had allegedly abused their rights by influencing their own stay in Germany. Regardless of the nationality presumed by the immigration authorities, it was the applicants' responsibility to sufficiently demonstrate and prove their identity and nationality. It was established that a violation of the obligations under immigration law pursuant to Section 48 of the Residence Act (AufenthG), in particular the duty to cooperate arising from Section 48 Paragraph 3 of the Residence Act, constituted an abuse of rights. Foreigners were required to take the initiative and initiate the necessary steps to remove any existing obstacle to their departure (the so-called duty to take initiative). In contrast, it was assumed that the applicants had provided incomplete, inaccurate, or inconsistent information during the proceedings. It could not be ruled out that the information provided by the embassies of Serbia and Kosovo was unhelpful because both the birthplaces of the children and the mothers of the sons xxx and xxx of applicant 1 were incorrectly stated. The information regarding the birthplaces of the other children was also partly inconsistent. The applicants had shown no initiative whatsoever. Contrary to their initial statements, there had at least been contact with maternal relatives in France. Since applicants 1 and 2 were not entitled to benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG), the other applicants were also not entitled to such benefits under Section 2, Paragraph 6 of the AsylbLG.
Since the applicants are housed in communal accommodation and its operator provides numerous in-kind benefits that cover their needs, there is no basis for granting further cash benefits. The Social Court (SG) had to take this into account in the dispute over the amount of benefits. From the standard rate of €389.00 for needs level 2, the following deductions had to be made: €34.49 for housing, energy, and apartment maintenance (section 4), and €23.98 for interior furnishings, household appliances and items, and ongoing household management (section 5), as these needs are covered by in-kind benefits. The same applies to the other applicants.
The respondents consider the challenged decision of the Social Court to be correct.
For further details of the facts and the submissions of the parties, reference is made to the contents of the court file for the present proceedings as well as the court file in the proceedings L 8 AY 75/20 B ER and to the benefit and immigration files that have been consulted.
II.
The appeal, filed in due form and time (§ 173 SGG), is admissible, in particular permissible (§ 172 para. 3 no. 1 SGG in conjunction with §§ 143, 144 para. 1 sentence 1 no. 1 SGG). The exclusion of appeals pursuant to § 172 para. 3 no. 1 SGG does not apply, as the appeal on the merits would not require leave to appeal pursuant to § 144 para. 1 SGG.
The value of the subject matter of the appeal exceeds the relevant threshold of €750.00 pursuant to Section 144 Paragraph 1 Sentence 1 No. 1 of the Social Court Procedure Act (SGG). The value of the subject matter of the appeal is to be determined here according to the burden placed on the respondent by the decision of the Social Court (SG) challenged by the respondent in the appeal, i.e., the difference between the benefits granted under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) and the benefits provisionally awarded by the Social Court under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Book XII of the German Social Code (SGB XII). Assuming that the benefits are awarded at the full standard rate, this difference amounts to approximately €2,000.00 for the six applicants for the period from September 14, 2020, to March 31, 2021, at the latest, as awarded by the Social Court.
The appeal is unfounded. The Social Court correctly ordered the respondent, by way of an interim injunction, to provisionally grant the applicants analogous benefits pursuant to Section 2 of the Asylum Seekers' Benefits Act (AsylbLG), taking into account the basic benefits already provided pursuant to Sections 3 and 3a of the AsylbLG.
Preliminary injunctions are permissible under Section 86b Paragraph 2 Sentence 2 of the Social Court Act (SGG) 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 that a right asserted against the respondent exists (claim for an injunction) and that the applicant would suffer substantial disadvantages without the issuance of the requested injunction (ground for an injunction). Both the sufficient probability of a substantive claim to performance and the urgency of the regulation to avert substantial disadvantages must be substantiated (Section 86b Paragraph 2 Sentence 4 SGG in conjunction with Section 920 Paragraph 2 of the Code of Civil Procedure (ZPO)).
The contentious legal relationship required for the issuance of a preliminary injunction is established here because the applicants filed an objection on September 15, 2020, against the decision of the city acting on behalf of the respondent, dated September 10, 2020, granting them basic benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) for the period from September 1 to December 31, 2020. This objection is still pending. The subsequent period from January 1 to December 31, 2020, is also subject to a dispute. The decision of November 23, 2020, granting basic benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) until March 31, 2021, has become the subject of the objection proceedings initiated by the objection of September 15, 2020, in accordance with Section 86 of the Social Courts Act (SGG) (see Federal Social Court (BSG), judgment of June 17, 2008 – B 8 AY 11/07 R – juris para. 10; judgment of April 14, 2011 – B 8 SO 12/09 R – juris para. 11 and judgment of December 9, 2016 – B 8 SO 14/15 R – juris para. 11).
The applicants have credibly demonstrated a claim to an order for subsistence benefits pursuant to Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Sections 27 et seq. of the German Social Code, Book XII (SGB XII).
According to Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) in the version applicable since January 1, 2020, as amended by Article 5 No. 3 of the Second Act to Enforce the Obligation to Leave the Country of August 15, 2019 (Federal Law Gazette I p. 1294), the Social Code, Book XII (SGB XII), is to be applied accordingly, notwithstanding Sections 3 and 4 to 6 to 7, 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.
Apart from the question of whether the applicants themselves abused their rights by influencing the duration of their stay in Germany, it can be assumed that the other prerequisites for entitlement to subsistence-level benefits are met. The applicants are among those entitled to benefits under Section 1 of the Asylum Seekers' Benefits Act (AsylbLG) because they possess tolerated stay permits under Section 60a of the Residence Act (AufenthG) (Section 1 Paragraph 1 No. 4 AsylbLG). They have also resided in Germany for a sufficiently long period without interruption. It is irrelevant whether the required period of uninterrupted stay is 18 months or, due to the transitional provision of Section 15 AsylbLG, the previously applicable period of 15 months applies. Likewise, it is irrelevant whether the applicants were not in Germany (but rather in France with relatives) during the period from January to July 2018. According to the contents of the submitted benefit and immigration files, they have been residing continuously in Germany for at least 25 months since July 30, 2018, and thus since the disputed benefit commencement date of September 1, 2020. There is no evidence to suggest that the applicants are able to cover their necessary living expenses from their own resources, particularly income and assets (Section 19 Paragraph 1, Section 27 Paragraph 1, 2 Sentence 1, Sections 82 et seq., Section 90 of the German Social Code, Book XII).
Based on a summary examination and considering the current state of the facts and legal arguments, the applicants cannot be accused of having abused their rights by influencing the duration of their stay in Germany within the meaning of Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG).
This applies to applicant 3, who only reached the age of majority on [date omitted], and applicants 4 to 6, who are only twelve, eleven, and six years old respectively, because, due to the "self-influence" on the length of stay required by Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG), they cannot be held responsible for any abusive conduct by their parents, applicants 1 and 2, nor can they be accused of any intentional abusive conduct of their own. The Social Court (SG) explained this in detail with sound reasoning, to which reference is made. Contrary to the respondent's view, the claim of applicants 3 to 6 under Section 2 Paragraph 1 of the AsylbLG is not dependent on a claim by applicants 1 and 2. The respondent's reference to the non-existent provision of Section 2 Paragraph 6 of the AsylbLG likely refers to Section 2 Paragraph 3 of the AsylbLG. Subsequently, minor children living in a household with their parents or one parent are entitled to benefits under paragraph 1 even if at least one parent in the household receives benefits under paragraph 1. The Asylum Seekers' Benefits Act (AsylbLG) structures the entitlements of benefit recipients as individual entitlements (not: of the family or household), similar to the Social Code, Book XII (SGB XII). Minor children must therefore each fulfill the requirements of Section 2, paragraph 1 of the AsylbLG themselves (residence status, waiting period, no abuse of rights). Section 2, paragraph 3 of the AsylbLG, in its version valid until February 28, 2015, nevertheless aimed for uniform benefit entitlements under the AsylbLG within the family or household. It created a dependency on the parents or one parent for the reduced level of basic benefits if they lived with them in a household and received benefits under the AsylbLG. The current regulation, which entered into force on March 1, 2015, and which replaced the word "only" with "even then" in Section 2 Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG), has significantly broadened the former purpose of the provision in favor of minor children. Minor children, if—unlike in this case—they do not already personally meet the eligibility requirements of Section 2 Paragraph 1 of the AsylbLG, can nevertheless claim the privileged benefits "even then" if at least one parent living in the same household receives privileged benefits under Section 2 Paragraph 1 of the AsylbLG (see Oppermann/Filges in jurisPK-SGB XII, Section 2 AsylbLG (as of January 5, 2021), marginal notes 241 and 252 with further references). This is the prevailing legal opinion. M.'s interpretation of Section 2 Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) had already been adopted by the respondent in another urgent proceeding from 2019 following a judicial suggestion (- L 8 AY 14/19 B ER -).
According to the jurisprudence of the Federal Social Court (BSG) (fundamental ruling: judgment of June 17, 2008 – B 8/9b AY 1/07 R – juris para. 32 et seq.), abusive conduct within the meaning of Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) requires, objectively speaking, dishonest behavior disapproved of by the legal system, which, subjectively speaking, is intentional and carried out with the awareness of the objectively possible influence on the asylum seeker's residence permit. Given the punitive nature of Section 2 AsylbLG, not just any conduct that is in any way reprehensible is sufficient. The nature, extent, and consequences of the breach of duty are so serious for the foreigner that the breach must also be given considerable weight within the framework of the principle of proportionality. Therefore, only conduct that is inexcusable (socially unacceptable) when considering the individual case, the specific situation of a foreigner in the Federal Republic of Germany, and the particular characteristics of the AsylbLG can lead to the exclusion of analogous benefits. Providing a false identity constitutes a typical case of abuse of rights (BSG, loc. cit., para. 34). An exception is made if any obligation of the foreigner in question to leave the country could not have been enforced during the entire period of abuse of rights, regardless of their conduct (BSG, loc. cit., para. 44). The burden of proof for abusive conduct lies with the benefit provider (Oppermann/Filges, loc. cit., paras. 140 ff.).
Based on this, and following a preliminary review of the current state of the facts and legal arguments, it is highly probable that – which will be to the detriment of the respondent, who bears the burden of proof – it will not be established in the main proceedings that applicants 1 and 2 abused their rights by influencing the duration of their stay in Germany within the meaning of Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG). The Senate concurs with the reasoning of the Social Court (SG) and, pursuant to Section 142 Paragraph 2 Sentence 3 of the Social Courts Act (SGG), refrains from further elaboration of the grounds for the decision. It merely adds that the Senate, too, is unable to discern any objective indications that applicants 1 and 2 misrepresented their identity by providing false names, dates of birth, and places of birth, especially since they apparently provided the same information during their previous asylum proceedings in Switzerland. A breach of their duty to cooperate, constituting an abuse of rights, would certainly exist if they – as the respondent assumes – possess passports, birth certificates, or other identity documents but fail to present them. It would also constitute an abuse of rights if obtaining identity documents were possible but they did not obtain them or did not cooperate sufficiently in obtaining them. However, neither of these scenarios is likely to be established. At his asylum hearing in September 2015, the first applicant, when confronted with the assertion that he must have possessed personal documents at some point in his life, stated that he had never owned an identity card or a passport. Upon further questioning, he explained that as Roma, they had never possessed any documents at all. It hadn't been that important to them. When the war began, they simply fled. Even today, there are Roma in Serbia living there without any documents whatsoever. Applicant No. 2 stated consistently during her hearing that they had no personal documents and were not wanted in Kosovo. They had been there and inquired about their rights. She provided the address where she and her parents had lived. However, they were told that they were not listed anywhere in the register and that they owned no property or rights, and therefore were not allowed to live in Kosovo. This information is not implausible. It is consistent with the UNHCR Guidelines on the Assessment of the International Protection Needs of Persons from Kosovo of November 9, 2009 (UNHCR_Kosovo_Guidelines_Nov09_dt, einwanderer.net), which, under section II.4 (pages 12 and 13) concerning personal documents, state that many Kosovo Roma living in Kosovo are not registered and/or cannot document their civil status. Without the necessary documents, Kosovo Roma and other minorities in a comparable situation cannot meet the requirements for registration. This situation can lead to statelessness and exclusion from political, social, and economic life. Regarding registration, the problem for minorities lies in meeting the documentation requirements of the authorities. Providing the necessary documents is a challenge for many applicants. Numerous Kosovo Roma have either never possessed personal documents or have lost them. In some cases, the documents have even been destroyed. Furthermore, many official records in Kosovo are no longer available, as the registration books were taken to Serbia or damaged and/or destroyed during the conflict in 1999. The situation of Roma in Serbia is described similarly (Tijana Joksic, Belgrade/Freiburg: The Discrimination of Roma in Serbia. State Reactions and Measures, pages 2, 5 and 6 with further references; www.aktionbleiberecht.de/blog/wp-content/uploads/2016/05/2015-05-Ti-jana_Joksic_Roma_Discrimantion_Dt-Fassung.pdf): There are approximately 45,000 internally displaced Roma from Kosovo, of whom only half are officially registered. It is assumed that the majority of these legally invisible, undocumented people are Roma. Due to the lack of legal documents and identification papers, they are de facto stateless, which makes it considerably more difficult for them to assert their rights as citizens. The problem has multiple causes, such as the lack of an official population register and a legally recognized address, a lack of information about procedures, a lack of financial resources to pay the required fees, the destruction of population registers in Kosovo, institutional discrimination against Roma, and lengthy, complicated administrative processes. Against this background, a lack of cooperation on the part of the applicants in obtaining identity documents cannot be established. While the respondent correctly points out that the information provided by applicants 1 and 2 in the identity and nationality clarification questionnaires they completed in autumn 2019 differs in some respects from the information they provided in the same questionnaires in autumn 2016, this does not constitute a lack of cooperation on the part of the applicants. The information provided is largely consistent, particularly regarding the applicants themselves. However, it is unclear whether the discrepancies—about which they were not questioned—were intentional or accidental, resulting from plausible translation and/or comprehension errors when completing the forms (apparently with assistance from the office of their then-legal representative in autumn 2016 and with the help of an interpreter in autumn 2019). Therefore, the statements made by applicants 1 and 2 regarding their own and their children's identities cannot currently be considered inexcusable and socially unacceptable behavior that would justify the exclusion of analogous benefits on the grounds of proportionality. The same applies to the applicants' "going into hiding" between December 29, 2017, and July 29, 2018, because during this period, terminating their stay in Germany was not possible due to a lack of identity documents, and the applicants (therefore) did not go into hiding with the intention of influencing the duration of their stay (but rather primarily to visit relatives in France; see the file note of January 22, 2019, in the immigration file). Furthermore, the applicants' likely stay in France and their subsequent application for benefits under the Asylum Seekers' Benefits Act (AsylbLG) on July 30, 2018, constituted a new case for benefits (see Federal Social Court (BSG), judgment of March 24, 2009 – B 8 AY 10/07 R – juris para. 17).
The applicants have, in principle, credibly demonstrated a claim to so-called analogous benefits under Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with the German Social Code, Book XII (SGB XII). Accordingly, the Social Court (SG) ordered the respondent, by way of a preliminary injunction, to grant provisional benefits (only) in principle. While it is true that granting benefits at the full standard rates could result in double payments due to the partial coverage of needs by the material resources available in the communal accommodation, this does not alter the outcome. However, he can take this into account himself by setting a different standard rate in accordance with Section 2 Paragraph 2 AsylbLG in conjunction with Section 27a Paragraph 4 Sentence 1 No. 1 SGB XII, whereby a reduction by the portion of the standard rate included for housing, energy and home maintenance (Dept. 4) is primarily considered, while restraint is advised with regard to the portion for interior furnishings, household appliances, household items and ongoing household management (Dept. 5) due to the savings amounts for future purchases contained therein.
Finally, the Social Court was also correct in affirming grounds for an order, referring to the existence-securing nature of the analogous benefits.
The decision on costs follows from a corresponding application of Section 193 of the Social Court Act (SGG).
This decision is final and cannot be appealed, § 177 SGG.
