DECISION
L 8 AY 118/20 B ER
S 42 AY 4026/20 ER Hildesheim Social Court
In the complaint process
1. xxx,
2. xxx,
3. xxx,
4. xxx,
5. xxx,
6. xxx,
to 1-6 resident xxx
– Applicant and respondent –
Legal representative:
for 1-6: Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
Hildesheim District 908 Legal Office,
represented by the district administrator,
Bischof-Janssen-Straße 31, 31134 Hildesheim
– respondent and complainant –
The 8th Senate of the Lower Saxony-Bremen State Social Court decided on February 4, 2021 in Celle by judges xxx and xxx and judge xxx:
The respondent's complaint against the decision of the Hildesheim Social Court of December 11, 2020 is rejected.
The respondent must also reimburse the applicant's out-of-court costs for the appeal process.
REASONS
I
The applicants are temporarily requesting higher benefits under the AsylbLG by way of interim legal protection.
The applicants belong to the Roma people. Applicant 1, born on xx.xx.1977, and applicant 2, born on xx.xx.1982, are a couple (married according to Roma custom) and applicants 3 to 6 are their children. The family also includes two other sons of applicant 1, xxx, born on xx.xx.1999, and xxx, born on xx.xx.2002, who are claiming higher benefits under the AsylbLG in independent proceedings. With the exception of applicant 6, who was born on xx.xx.2014 in xxx in Switzerland, the names and dates of birth are based solely on information provided by applicants 1 and 2. With the exception of the Swiss birth certificate for applicant 6, there are no identity papers whatsoever. The applicants 1 and 2, the sons xxx and xxx of the applicant 1 and the applicant 3 born on xx.xx.2002 were born in xxx in Kosovo, the applicant 4 born on xx.xx.2008 and the applicant on xx .xx.2009 born applicants to 5 in xxx in Serbia.
The family entered the Federal Republic of Germany on May 22, 2015 and applied for asylum here. At his hearing by the Federal Office for Migration and Refugees (BAMF) in mid-September 2015, applicant 1 essentially stated: Before entering Germany, they had lived in Switzerland for around 2 ½ years. He last lived in Kosovo in xxx. He hasn't been there since 1999. From then until 2015, they stayed in various countries in Europe and unsuccessfully applied for asylum. For example, he was in France, where he had to spend 2 ½ months in detention pending deportation. They didn't find a country that wanted to take them in. The Republic of Kosovo also refused to take them back. He left Kosovo because of the war and lived in various European countries. Now Kosovo no longer wants him. He doesn't know what to do with his family. He would also voluntarily return to Kosovo if they would accept him there. He has never had an identity card or passport in his life. As Roma, you had no papers at all. That wasn't that important to her either. And when the war started, they simply ran away. There are still Roma in Serbia today who live there without any documents. He has been on the road since 1999 and no longer knows where to go.
In a decision dated September 15, 2015, the BAMF rejected the applicants' asylum applications as obviously unfounded, denied deportation bans and asked them to leave the country within a week. If the applicants did not leave on time, they were threatened with deportation to Kosovo. Legal appeals were unsuccessful. Since then, the applicants have been tolerated in accordance with Section 60a of the Residence Act. You live in a self-contained 62 sqm residential unit in shared accommodation in Hildesheim.
After the asylum procedure was completed, the city of Hildesheim (city) as the immigration authority (hereinafter referred to as the immigration authority) asked applicants 1 and 2 to appear and present birth certificates or other proof of identity (passport, identity cards) on October 27, 2015. The lawyer representing the applicants then informed the immigration authorities at the beginning of November 2015 that the applicants were stateless persons. As can be seen from 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 “READEMISSION Kosovo” dated July 30, 2013), neither Serbia nor Kosovo were able to determine that the applicants are nationals of their state. They therefore refused to be repatriated. The immigration authorities then informed the lawyer on December 10, 2015 and April 6, 2016 that the Kosovo and Serbian embassies in Switzerland could not find the applicant's family among the personal details in the registers, which in no way means that the person was stateless Applicant should go out. You could be registered under any personal details. No identity documents were provided. They themselves stated that they were Kosovar citizens. Even stateless people usually had some kind of identity documents. The applicants were asked to present a valid national passport or passport replacement or all certificates and other documents that could be important for establishing identity and nationality by the end of April or to cooperate in such a way that identification and thus the issuance of a replacement passport paper are possible be. This request was repeated in another letter dated September 6, 2016 addressed to the lawyer. Furthermore, a list of where the applicants lived from when to when (country, place, etc.) was required. A form “Questionnaire for Identity and Nationality Clarification” to be completed was attached. The lawyer filled out this form and sent it back to the immigration authorities at the beginning of October 2016. Using the data provided therein, the immigration authorities issued a readmission request to the Republic of Kosovo, which was rejected at the beginning of June 2017. It could not be established that the applicants were citizens of the Republic of Kosovo. In the period that followed, applicants 1 and 2 were regularly asked by the immigration authority to come forward to renew their toleration in a timely manner and, in addition to the family's toleration, to present themselves with valid national passports or passport replacement papers for all family members. During the interview and the extension of the toleration, written instructions were given to the effect, among other things, that a foreigner who does not have a valid passport or passport substitute is obliged to cooperate in obtaining the identity document, as well as all certificates and other documents required to establish his/her identity Identity and nationality may be important and which he possesses must be presented to the immigration authorities. In September 2019, applicant 1 again filled out the questionnaires concerning him and applicant 2 to clarify identity and submitted them to the foreigners' authority with translations of the information from the Republic of Serbia dated October 30, 2013 denying Serbian citizenship into German from August 25, 2019 . Since then, the immigration authorities have assumed that the applicants' nationality is unclear. In October 2019, the LKA Lower Saxony suggested checking whether the applicants had Macedonian citizenship.
The city acting on behalf of the respondent granted the applicants basic benefits in accordance with Sections 3, 3a AsylbLG for the period from September 1st in a decision dated September 10th, 2020. until December 31, 2020 in the amount of a total of €2,478.05. The decision was sent to the applicants’ legal representatives on September 15, 2020. He had previously assumed that the granting of benefits from September 1st, 2020 would be implicitly paid out without a notice, but had already lodged an objection against this and submitted an urgent application to the Hildesheim Social Court (SG) on September 14th, 2020, because after the approval notice was announced and his objection was issued on September 14th, 2020 The objection raised on September 15, 2020 was adapted to the new decision. The applicants essentially claimed that they were entitled to so-called analogous benefits under Section 2 AsylbLG because they had already been in Germany for more than four years and had not behaved in an abusive manner. They were always willing to help obtain passports. However, neither Kosovo nor Serbia were willing to accept them. Contrary to the most recently expressed assumption, you are not citizens of the Republic of North Macedonia, as can be seen from the confirmation from the embassy of this country in Berlin on December 2nd, 2020. The respondent should therefore explain specifically what else they could do. The simple request to provide documents was not effective because they did not have the relevant documents. As applicant 1 confirmed again in his affidavit dated November 4, 2020, he provided truthful information to the immigration authorities in the completed questionnaires to clarify identity and nationality. They see themselves as stateless.
The respondent replied that the mere claim that he had no documents was not legally relevant in the context of the interim legal protection proceedings. The applicants did not cooperate sufficiently in clarifying their identities. The information provided by applicant 1 in the questionnaires regarding the identity of the applicants is partly incorrect (applicant 2 is not the mother of the sons xxx and xxx of applicant 1) or contradictory (information about the place of birth of son xxx). The rooms in the shared accommodation inhabited by the applicants were not an apartment in the strict sense, so that the standard level 2 requirement applicable to accommodation in shared accommodation was correctly taken into account when calculating the benefits. If the standard rates were paid out in full, needs would be covered twice, on the one hand through cash benefits and on the other hand through benefits in kind from the accommodation operator. The accommodations are furnished, so furniture does not have to be purchased. In addition, electricity is provided as a benefit in kind, as are regularly changed bed linen. Household appliances would be provided as a benefit in kind and, if necessary. repaired, as well as other maintenance work on the living spaces carried out by the facility. In addition, cleaning services would be provided by the facility and lounges including technical equipment would be made available.
In the course of the expedited procedure, the city issued a decision dated November 23rd, 2020 to the applicants for the period from January 1st. Benefits in accordance with Sections 3, 3a AsylbLG will again be approved until March 31, 2021. The applicants filed an objection against this on November 26, 2020, which, like the objection dated September 15, 2020, has not yet been decided.
By order of December 10, 2020, the SG obliged the respondent by means of an interim order to provide the applicants with privileged benefits in accordance with Section 2 Paragraph 1 AsylbLG in conjunction with SGB as of March 31, 2021, unless a decision has been made beforehand on the objection to the decision of September 10, 2020, taking into account the basic services already provided for this period. The applicants had credibly demonstrated a claim to such benefits. As holders of a toleration status, they belonged to the group of people entitled to benefits under this law in accordance with Section 1 Paragraph 1 No. 4 AsylbLG. They also fulfilled the 18-month pre-residence period and were actually in the federal territory during the disputed period from September 14, 2020. The Chamber is convinced that this applies even if they had actually stayed in France from December 2017 to July 2018 and this would be seen as a significant interruption in their stay in the federal territory. They also did not improperly influence the duration of their stay in the federal territory. The applicants 1 and 2 as well as the applicant 3 from the age of 18 would not have deceptively deceived their identity according to the examination standard to be applied in the procedure for interim legal protection.
Such an accusation cannot be inferred from the administrative procedures, the immigration file and the defendant's submissions in the court proceedings. There is no objective evidence of deliberate identity deception. The fact that the states of Kosovo, Serbia and North Macedonia did not recognize the respective citizenship of the applicants under the identities provided does not indicate - in the absence of further factual evidence - that the claimed personal details are incorrect. Rather, this only allows speculation in this direction. However, this is not sufficient to prove an abuse of law in the sense of intentional action, especially since the benefit authority bears the burden of proof for the abuse of law. In addition, the Chamber is convinced that there was no serious violation of the obligation to cooperate under immigration law that had an impact on the duration of the stay in the federal territory. In general, non-fulfillment of specific cooperation obligations required under immigration law or asylum law could constitute abusive behavior. However, this obligation does not apply if the act of cooperation is hopeless from the outset or is unreasonable for the person entitled to the benefit. In the present individual case, all requests to cooperate to (generally) present a national passport or passport replacement papers are hopeless from the outset because it can be seen from the immigration file that the immigration authorities assumed from the outset that the applicant was a Kosovar or, alternatively, Serbian nationality, but this was had not confirmed. It was therefore pointless from the outset to require passport documents issued by these countries that did not recognize the applicants' nationality. The authority has now also recognized the futility of the immigration authorities' trade with regard to the target states of Kosovo and Serbia. The fact that applicant 1 (meaning 2) is not a North Macedonian citizen is clear from the corresponding statement from the Embassy of the Republic of North Macedonia dated December 2, 2020. This clarification is largely due to the cooperation of the applicants, so that there is no serious violation of the obligation to cooperate that had an impact on the duration of the stay in the federal territory. Rather, it should now be the responsibility of the immigration authorities to examine indications that the applicant has a different nationality or to initiate an examination to determine statelessness.
Furthermore, the application of applicants 3 to 6 was successful even if the parents had behaved in an abusive manner. Section 2 AsylbLG requires “self-influence” on the length of stay, whereby the behavior of the legal representatives cannot be attributed due to their highly personal nature. In the disputed period, due to a lack of insight, from the Chamber's point of view no intentional abuse of the law could be alleged, especially since the requests for cooperation under immigration law were directed exclusively at one parent and the knowledge of the minors of the required obligations appears questionable. The same applies to the lack of knowledge for applicant 3 from the time she comes of age. Since she came of age on August 19, 2020 (apparently also due to Corona), no request to cooperate under immigration law was made to her.
Since applicants 1 and 2, as a married couple, are assigned to standard needs level 2 anyway, it does not matter whether they are accommodated in shared accommodation, which also requires standard needs level 2. The classification as shared accommodation also has no effect on the standard needs levels of household applicants 3 to 6.
The necessary special urgency of the matter arises from the subsistence nature of the services.
The respondent filed an appeal against the decision on December 18, 2020. Applicants 1 to 3 had improperly influenced their stay in Germany. Regardless of the nationality assumed by the immigration authority, it is the applicant's responsibility to adequately explain and prove what identity they have and what nationality they have. It is clarified that a violation of the obligations under immigration law under Section 48 of the Residence Act, in particular the obligations to cooperate resulting from Section 48 (3) of the Residence Act, constitutes abusive behavior. The foreigner is required to take the initiative independently and take the necessary steps to remove the existing obstacle to leaving the country (so-called duty of initiative). In contrast, it can be assumed that the applicants provided incomplete information as well as incorrect or deviating information in the course of the procedure. It cannot be ruled out that the information provided by the embassies of Serbia and Kosovo was not helpful because both the birthplaces of the children and the mothers of the sons xxx and xxx of applicant 1 were incorrectly stated. The information about the birthplaces of the other children is also partly different. The applicants had not developed any initiative of their own. Contrary to her original statements, there was at least contact with relatives on her mother's side in France. Since applicants 1 and 2 are not entitled to benefits under Section 2 AsylbLG, the other applicants are also not entitled to a corresponding claim under Section 2 Paragraph 6 AsylbLG.
Since the applicants are accommodated in shared accommodation and the operator provides numerous benefits in kind to meet their needs, there is no room for the approval of further cash benefits. The SG had to take this into account in the height dispute. From the standard rate of requirement level 2 of €389.00, shares for housing, energy, apartment maintenance (Department 4) in the amount of €34.49 as well as interior fittings, household appliances and household items, and day-to-day housekeeping (Department 5) would have amounted to €34.49 of €23.98 must be deducted because these needs would be covered by benefits in kind. The same applies to the other applicants.
The respondents consider the contested decision of the SG to be correct.
For further details of the facts and the arguments of those involved, reference is made to the content of the court file for the present proceedings as well as the court file in the case L 8 AY 75/20 B ER as well as the benefit and foreigner files used.
II.
The complaint lodged in due form and in due time (Section 173 SGG) is admissible, in particular admissible (Section 172 Paragraph 3 No. 1 SGG in conjunction with Sections 143, 144 Paragraph 1 Sentence 1 No. 1 SGG). The exclusion of appeals in accordance with Section 172 Paragraph 3 No. 1 SGG does not apply, since the appeal in the main matter would not require approval in accordance with Section 144 Paragraph 1 SGG.
The value of the subject matter of the complaint exceeds the value limit of €750.00 pursuant to Section 144 Paragraph 1 Sentence 1 No. 1 SGG. The value of the subject of the complaint is to be determined here according to the burden on the respondent resulting from the SG's decision that he is challenging with the complaint, i.e. the difference between the approved benefits in accordance with Sections 3, 3a AsylblG and the benefits provisionally awarded by the SG § 2 AsylbLG in conjunction with SGB XII. In this respect, based on an award of benefits at the full standard rate, it amounts to a total of approximately €2,000.00 for the six applicants for the period awarded by the SG from September 14th, 2020 to March 31st, 2021 at the latest.
However, the complaint is not founded. The SG rightly obliged the respondent by means of an interim order to provisionally grant the applicants analogous benefits in accordance with Section 2 AsylbLG, taking into account the basic services provided in accordance with Sections 3 and 3a AsylbLG.
According to Section 86b Paragraph 2 Sentence 2 SGG, interim orders are permissible to regulate a provisional situation with regard to a disputed legal relationship if such a regulation appears necessary to prevent significant disadvantages. The prerequisite for the issuance of an interim injunction is that an asserted right exists against the respondent (right to an injunction) and that the applicant would suffer significant disadvantages without the issuance of the requested injunction (reason for the injunction). Both the sufficient probability of a material claim to benefits given in the matter and the urgency of the regulation to avert significant disadvantages must be made credible (§ 86b para. 2 sentence 4 SGG in conjunction with § 920 para. 2 ZPO).
The disputed legal relationship required for the issuance of an interim injunction is justified here by the fact that the applicants have filed a complaint against the agreement granted to them for the period from September 1st. until December 31, 2020, on September 15, 2020, the decision of the city acting on behalf of the respondent granting basic benefits in accordance with Sections 3, 3a AsylbLG raised an objection on September 15, 2020, which has not yet been decided. The one for the following period from January 1st. until March 31, 2021, the decision of November 23, 2020 approving basic benefits in accordance with Sections 3, 3a AsylbLG has become the subject of the objection procedure initiated by the objection of September 15, 2020 in corresponding application of Section 86 SGG (cf. 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 subsistence benefits in accordance with Section 2 Paragraph 1 AsylbLG in conjunction with Sections 27 ff. SGB XII.
According to Section 2 Paragraph 1 AsylbLG in the version of Article 5 No. 3 of the second law on the enforcement of the obligation to leave the country of August 15, 2019 (BGBl I p. 1294), which has been in force since January 1, 2020, SGB XII deviates from Sections 3 and 4 to 6 to 7 apply accordingly to those entitled to benefits who have been in the federal territory for 18 months without any significant interruption and who have not abused the duration of their stay.
Apart from the question of whether the applicants themselves have abused the law to influence the duration of their stay in Germany, it can be assumed that the other requirements for a claim to analogous benefits that secure a living are met. The applicants are among those entitled to benefits according to Section 1 AsylbLG because they have toleration status according to Section 60a AufenthG (Section 1 Para. 1 No. 4 AsylbLG). They also stay in the federal territory for a long enough time without interruption. It can be left open whether an uninterrupted stay of 18 months or, due to the transitional provision of Section 15 AsylbLG, the previous stay of 15 months still applies. It can also remain unclear whether the applicants were not in Germany (but in France with relatives) between January and July 2018. According to the content of the benefit and foreigner files consulted, they have been staying in the federal territory for 25 months or longer without interruption since July 30, 2018 and thus from the start of benefits in dispute here on September 1, 2020. Evidence that the applicants can cover their necessary living expenses from their own strengths and resources, in particular from income and assets (§ 19 para. 1, § 27 para. 1, 2 sentence 1, §§ 82 ff., § 90 SGB XII ), not available.
After a summary examination based on the current state of affairs and the dispute, the applicants cannot be accused of having influenced the duration of their stay in Germany in an abusive manner within the meaning of Section 2 Paragraph 1 AsylbLG.
This applies to applicant 3, who only came of age on xx.xx.2020, as well as applicants 4 to 6, who are only twelve, eleven or six years old, because they are subject to the “self-influence” required by Section 2 Paragraph 1 AsylbLG. The duration of their stay cannot be attributed to the abusive behavior of their parents, the applicants 1 and 2, and they cannot be accused of their own intentionally abusive behavior. The SG explained this in more detail with appropriate reasons to which reference is made. Contrary to the respondent's opinion, a claim by applicants 3 to 6 according to Section 2 Paragraph 1 AsylbLG is not dependent on such a claim by applicants 1 and 2. The non-existent provision of Section 2 Paragraph 6 AsylbLG mentioned by the respondent in this regard probably refers to Section 2 Paragraph 3 AsylbLG. According to this, minor children who live with their parents or one parent in a household will receive benefits in accordance with paragraph 1 even if at least one parent in the household receives benefits in accordance with paragraph 1. The AsylbLG has structured the claims of those entitled to benefits as individual claims (not: the family or the household community) as in SGB XII. Minor children must therefore fulfill the requirements of Section 2 Paragraph 1 AsylbLG themselves (residence status, waiting period, no abuse of law). Section 2 Paragraph 3 AsylbLG in its version valid until February 28, 2015 was intended to ensure uniform benefit entitlements according to the AsylbLG within the family or household community. It created a benefit dependency between minor children and their parents or one parent at the lowered level of basic benefits if they lived with them in a household and received benefits according to the AsylbLG. However, the current regulation that came into force on March 1, 2015, with which the word “only” was replaced by the words “also then” in Section 2 Paragraph 3 AsylbLG, has significantly expanded the former standard purpose in favor of underage children. Minor children, if - unlike here - do not already fulfill the management requirements of Section 2 Paragraph 1 AsylbLG, they can still claim privileged benefits "even if at least one parent living in the same household has privileged benefits in their own person § 2 para. 1 AsylbLG (cf. Oppermann/Filges in jurisPK-SGB XII, § 2 AsylbLG (as of January 5, 2021) paras. 241 and 252 with further references). This very h. M. on the interpretation of Section 2 Paragraph 3 AsylbLG, the respondent had already joined the court in another urgent procedure from 2019 (- L 8 AY 14/19 B ER -).
According to the case law of the BSG (basic: judgment of June 17, 2008 - B 8/9b AY 1/07 R - juris Rn. 32 ff.), abusive behavior within the meaning of Section 2 Paragraph 1 AsylbLG constitutes, in objective terms, dishonest, behavior that is disapproved of by the legal system, which is subjectively and intentionally carried out in the awareness of the objectively possible influence on one's residence. In view of the sanctioning nature of Section 2 AsylbLG, not every behavior that is somehow disapprovable is enough. The nature, extent and consequences of the breach of duty are so serious for the foreigner that the breach of duty must also be given considerable weight within the framework of the principle of proportionality. Therefore, only behavior that is inexcusable (social injustice), taking into account the individual case, the special situation of a foreigner in the Federal Republic of Germany and the special characteristics of the AsylbLG, can lead to exclusion from analogous benefits. Providing a false identity represents a typical case of abuse of rights (BSG, ibid., para. 34). An exception must be made if any obligation of the foreigner concerned to leave the country could not have been carried out during the entire period of legal abuse, regardless of his behavior (BSG, ibid., para. 44). The service provider bears the objective burden of proof for abusive behavior (Oppermann/Filges, ibid., para. 140 ff.).
Based on this, after a summary examination based on the current state of affairs and the dispute, it is overwhelmingly likely that - which will be to the detriment of the respondent, who bears the burden of material proof - it will not be possible to establish in the main proceedings that applicants 1 and 2 have limited the duration of their stay in Germany within the meaning of Section 2 Paragraph 1 AsylbLG have abused the law. The Senate follows the reasoning of the SG and, in accordance with Section 142 Paragraph 2 Sentence 3 SGG, refrains from further presenting the reasons for the decision. All that remains to be added is that the Senate is also unable to identify any objective evidence that applicants 1 and 2 deceived about their identity by providing false names, birthdays and places, especially since they were apparently in Switzerland during their previous stay asylum procedures have provided the same information. A breach of their duty to cooperate that constitutes abusive behavior would certainly occur if - as the respondent assumes - they have passports, birth certificates or other identity documents but do not present them. It would also be an abuse of law if it were possible to obtain identity papers but you did not obtain the papers or did not sufficiently participate in the procurement. However, neither one nor the other will probably be able to be determined. At his hearing in the asylum procedure in September 2015, applicant 1, when asked that he had certainly had personal papers at some point in his life, stated that he had never had an identity card or a passport in his life. When asked further, he explained that as Roma they had no papers at all. That wasn't so important for her. When the war started, they simply ran away. Even today there are Roma in Serbia who live there without any documents. Applicant 2 consistently stated at her hearing that she had no personal papers and that they were not wanted in Kosovo. They were there and asked about their rights. She would have given the address where she and her parents lived. However, they were told that they were not listed anywhere in the register and that they had no property or rights, so they were not allowed to live in Kosovo. This information is not implausible. With regard to the situation in Kosovo, they are in accordance with the UNHCR guidelines for determining the international protection needs of persons from Kosovo dated November 9, 2009 ( UNHCR_Kosovo_guidelines_Nov09_dt, einwanderer.net ), in which under II. 4. (pages 12 and 13). Personal documents show that many Kosovar Roma living in Kosovo are not registered and/or cannot document their civil status. Without the necessary documents, Kosovar Roma and other minorities in a comparable situation would not be able to meet the requirements for registration. This situation could lead to statelessness and exclusion from political, social and economic life. With regard to registration, the problem for minorities lies in meeting the documentation requirements of the authorities. Proving the required documents is a challenge for many applicants. Many Kosovo Roma either never had personal documents or lost them. Some of the documents were also destroyed. In addition, many official records in Kosovo are no longer available because the registration books were taken to Serbia or were damaged and/or destroyed during the conflict in 1999. The situation of the Roma in Serbia is described similarly (Tijana Joksic, Belgrade/Freiburg: Discrimination against 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 around 45,000 internally displaced Roma from Kosovo, only half of whom are officially registered. It is assumed that the majority of legally invisible people without ID documents are Roma. Due to a lack of legal documents and identification papers, they are de facto stateless, which makes it significantly more difficult to assert their rights as citizens. The problem has many causes, such as the lack of an official registration register and a legally recognized registration address, a lack of information about the procedures and financial means to pay the necessary fees, the registration registers that were destroyed in Kosovo, and institutional discrimination against the Roma and lengthy, complicated administrative procedures. Against this background, it cannot be determined that the applicants did not cooperate in obtaining identity documents. The respondent correctly points out that the information provided by applicants 1 and 2 in the identity and nationality clarification questionnaires they filled out in autumn 2019 partially differs from the information they provided in the same questionnaires in autumn 2016. However, for the most part - especially about themselves - the information is consistent and with regard to the deviations - about which they were not asked - it is not clear whether they were intentional or accidental due to obvious translation and/or comprehension errors when filling out the forms ( In the fall of 2016 it apparently took place with help from the office of the then attorney of record and in the fall of 2019 with the help of a language mediator). The information provided by applicants 1 and 2 regarding their identity and the identity of the children cannot currently be assessed as inexcusable and socially unfavorable behavior justifying the exclusion of analogous benefits from the perspective of proportionality. The same applies to the “hiding” of the applicants in the period from December 29th, 2017 to July 29th, 2018, because during this time it was also not possible to end their stay in Germany due to a lack of identity papers and the applicants (therefore) were not able to do so went into hiding with the intention of influencing the duration of their stay (but probably mainly to visit relatives in France, cf. the file note from January 22, 2019 in the foreigner file). In addition, the likely stay of the applicants in France and their subsequent application for benefits under the AsylbLG of July 30, 2018 created a new benefit case (cf. BSG, judgment of March 24, 2009 - B 8 AY 10/07 R - juris Rn . 17).
After all this, the applicants have credibly demonstrated a claim to so-called analogue benefits in accordance with Section 2 Paragraph 1 AsylbLG in conjunction with SGB XII. Accordingly, the SG obliged the respondent by means of an interim injunction (only) on the basis of the provisional granting of benefits. The respondent agrees that if benefits are granted at the full standard rates, double benefits may arise due to the partial coverage of needs by the material resources available in the shared accommodation. However, he can take this into account 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 Section 4) comes into consideration, while the proportion for interior fittings, household appliances, household items and current household management (Section 5) requires restraint because of the savings amounts it contains for future purchases.
Finally, the SG rightly affirmed that there was a reason for an order, citing the existence-securing nature of the analogue services.
The cost decision follows from a corresponding application of Section 193 SGG.
This decision is incontestable, Section 177 SGG.
