DECISION
L 8 AY 76/20 B ER
S 27 AY 4020/20 ER Social Court Hildesheim
In the appeal proceedings
xxx,
– Applicant and complainant –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
Hildesheim District, 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 11, 2021 in Celle through Judges xxx and xxx and Judge xxx:
Upon the applicant's appeal, the decision of the Hildesheim Social Court of September 10, 2020, is amended. By way of preliminary injunction, the respondent is ordered to grant the applicant benefits pursuant to Section 2 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Book XII of the German Social Code (SGB XII) at standard benefit level 1, taking into account benefits already provided for this period, provisionally from November 1, 2020, until a final and binding decision is reached on the objection of October 29, 2020, against the implied grant of benefits for November 2020 and the decision of October 27, 2020, but no later than May 31, 2021. The appeal is otherwise dismissed.
The respondent shall reimburse 7/10 of the applicant's extrajudicial costs for the appeal proceedings.
The applicant is granted legal aid for the appeal proceedings, with the appointment of attorney Adam, Göttingen. Payment in installments is not ordered.
REASONS
I.
The applicant seeks higher benefits under the Asylum Seekers' Benefits Act (AsylbLG) by way of preliminary legal protection.
The applicant stated that he was born in April 1999 in Mitrovica (then Yugoslavia, now the Republic of Kosovo). Due to the Kosovo War, his parents fled Kosovo with him. Most recently, the applicant, his parents (father and stepmother), and his five siblings, born between 2002 and 2014, lived in Switzerland for approximately three years before entering Germany in May 2015. The family belongs to the Roma community. The parents stated that they and the children were Kosovar nationals with knowledge of the Albanian language. The family's asylum applications were rejected as manifestly unfounded, with the threat of deportation to Kosovo (decisions concerning the applicant dated October 20, 2015, and concerning the rest of the family dated September 15, 2015). Appeals were unsuccessful. The applicant and his family have since been granted temporary leave to remain pursuant to Section 60a of the German Residence Act. They are housed in the building at "Senkingstraße 10a" in Hildesheim, which is rented by the city of Hildesheim for the accommodation of benefit recipients under the Asylum Seekers' Benefits Act (AsylbLG) and homeless persons (primarily families), and receive basic benefits under the AsylbLG. The applicant initially lived with his parents and siblings in a self-contained apartment of approximately 62 square meters, and since mid-October 2020, he has lived with his brother xxx in a different apartment. Both apartments have furnished rooms, a kitchen or kitchenette, and a bathroom.
Due to the facts relevant to immigration law, reference is made to the detailed explanation in the Senate's decision of 4 February 2021 – L 8 SO 118/20 B ER – concerning the other family members (with the exception of the brother Bernardo).
The city of Hildesheim, acting on behalf of the respondent, granted the applicant benefits pursuant to Sections 3, 3a Paragraph 1 No. 2b, Paragraph 2 No. 2b of the Asylum Seekers' Benefits Act (AsylbLG) for the period from June 1st to October 31st, 2020, by decision dated April 16th, 2020.
On July 29, 2020, the applicant's legal representative, assuming that the monthly payments beginning March 1, 2020, constituted implicit approval of benefits, filed an objection to the (implied) approval of benefits. On the same day, he applied to the Hildesheim Social Court for an interim injunction. He argued that benefits should be granted pursuant to Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) and that standard benefit level 1, not level 2, should apply.
In the course of the expedited proceedings, the applicant's legal representative withdrew the objection of July 29, 2020, and on August 13, 2020, filed an application with the City of Hildesheim pursuant to Section 44 of the German Social Code, Book X (SGB X), for a review of the legality of the decision of April 16, 2020. The respondent replied that a binding decision regarding the granting of benefits had been issued. The special requirements for an exceptional preliminary injunction within the framework of proceedings under Section 44 SGB X were clearly not met.
The Social Court (SG) rejected the application for a preliminary injunction by decision of September 10, 2020. It held that no claim for an injunction could exist for a request that had already been rejected by a legally binding administrative act. The finality of the decision established that the respondent was not obligated to grant the applicant the requested benefits. A different conclusion could only be reached if a review procedure under Section 44 of the German Social Code, Book X (SGB X) was pending with regard to the legally binding decision and the prerequisites for its revocation under Section 44 SGB X were unquestionably met, meaning the decision was manifestly unlawful. Otherwise, the finality of the decision took precedence in the expedited proceedings. It must therefore be credibly demonstrated that there have been massive infringements on the applicant's social and economic existence with significant consequences for their living conditions (Burkiczak in jurisPK-SGG, 1st edition, as of September 7, 2020, § 86b SGG para. 340, 356). Here, the legally binding benefit decision issued by the respondent on April 16, 2020, definitively regulates the legal relationship between the parties. The applicant has neither asserted nor credibly demonstrated that he has suffered a massive infringement on his social and economic existence with significant consequences for his living conditions. The mere fact that the temporal requirements of § 2 para. 1 AsylbLG (Asylum Seekers' Benefits Act) have been met does not establish a credible claim for an injunction. Furthermore, the benefit decision in dispute is not manifestly unlawful. The applicant has access to a self-contained, fully furnished apartment equipped with a kitchen including a refrigerator and washing machine. Towels and bed linens are provided as an initial supply, and the bed linens are changed every two weeks. The applicant has not presented any concrete evidence to suggest that the legally binding benefit decision is unlawful.
The applicant filed an appeal against the decision on September 14, 2020.
In the course of the appeal proceedings, the City of Hildesheim, by decision dated October 27, 2020, again granted the applicant basic benefits pursuant to Sections 3, 3a Paragraph 1 No. 2b, Paragraph 2 No. 2b of the Asylum Seekers' Benefits Act (AsylbLG) for the period from December 1, 2020, to May 31, 2021. The basic benefits for November 2020 were transferred to the applicant's bank account without a formal decision. The applicant's legal representative filed an objection to the benefit award for the period from November 1, 2020, to May 31, 2021, by letter dated October 29, 2020.
The applicant argues, in support of his appeal, that the 18-month period stipulated in Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) has been exceeded. He further argues that there is no evidence of abuse of rights. As can be seen from the decision of the Social Court of Hildesheim dated October 5, 2020 – S 42 AY 4021/20 ER – concerning a comparable apartment in the same accommodation, he lives with his family or his brother in a self-contained apartment. Therefore, it cannot be assumed that he is housed in collective or communal accommodation, and thus benefits according to standard benefit level 1 should be granted.
The respondent considers the contested decision to be correct. The benefit notice of April 16, 2020, is not manifestly unlawful. The fact that the applicant lives in a self-contained apartment used only by him and other family members or his brother does not preclude the application of standard benefit level 2. The services provided by the operator of the communal accommodation, as listed in the schedule of services for the communal accommodation, such as apartment furnishings, repairs, cleaning services including windows, recreational activities, common rooms, laundry services (bed linen), etc., justify the assumption of synergies and savings within the communal accommodation. Even – as in this case – interconnected rooms within a facility belong to the communal accommodation and are not considered "apartments." Furthermore, applying a higher standard benefit rate would result in double coverage of needs due to the in-kind benefits provided by the facility. Therefore, the standard benefit rate should be set lower anyway to avoid double payments. The question of whether the assumption made by the legislator that living in a communal facility actually leads to the assumed savings (and whether this may be taken into account by a lower standard benefit rate) is a question of the constitutionality of the regulation.
For further details of the facts and the submissions of the parties, reference is made to the contents of the court file and the administrative records of the respondent.
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 according to what the Social Court denied the appellant and what the appellant is pursuing with their appeal, in this case, the difference between the benefits granted pursuant to Sections 3, 3a Paragraph 1 No. 2b, Paragraph 2 No. 2b of the Asylum Seekers' Benefits Act (AsylbLG) (standard benefit level 2) and the benefits sought by the applicant, at least from the date of the preliminary injunction application of August 2, 2020, pursuant to Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Book XII of the German Social Code (SGB XII) at standard benefit level 1 for the period until May 31, 2021, which amounts to approximately €1,170.00.
The appeal is only partially justified. The Social Court rightly rejected the application for an interim injunction for the period until October 31, 2020.
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)).
If, as in this case for the period from June 1 to October 31, 2020, a legally binding decision exists and the disputed legal relationship is (merely) established by pending review proceedings pursuant to Section 44 of the German Social Code, Book X (SGB X), particularly stringent requirements apply to the substantiation of a claim for an injunction and grounds for such an injunction. A claim for an injunction exists only if it is credibly demonstrated that the prerequisites for the revocation of the legally binding decision are undoubtedly met, i.e., that the decision is manifestly unlawful (Burkiczak, loc. cit., para. 340 with further references and Saxon State Social Court, decision of February 25, 2020 – L 8 AS 1422/19 B ER –, juris para. 32 with further references). Grounds for an injunction exist only if it is credibly demonstrated that there are massive infringements on the applicant's social and economic existence with significant effects on their living conditions (Burkiczak, loc. cit., para. 356 with further references and Saxon State Social Court, decision of February 25, 2020, loc. cit., para. 32 with further references; see also Senate decision of December 14, 2015 – L 8 AY 55/15 B ER – juris para. 29). As will be evident from the following explanations regarding his benefit claims in the also disputed subsequent period from November 1, 2020, to May 31, 2021, the applicant has credibly demonstrated a claim to so-called analogous benefits pursuant to Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Book XII of the German Social Code (SGB XII), which, however, is not obvious. Furthermore, the applicant has demonstrated, for the period from the filing of the preliminary injunction on August 2, He failed to provide credible evidence of grounds for an injunction by October 31, 2020. As an adult under 25 years of age, he had, at most, a claim to benefits at standard rate level 3 in the amount of €327.00 per month pursuant to Section 2 Paragraph 1 Sentence 1 in conjunction with Sentence 4 No. 2 of the Asylum Seekers' Benefits Act (AsylbLG) for the period up to mid-October 2020, during which he lived with his parents (at least with his biological father) and his siblings in an apartment (details regarding the distinction between accommodation in an apartment and accommodation in communal housing will follow later). This amount was only €11.00 above the approved €316.00. Because of the numerous in-kind benefits provided in the communal accommodation (in addition to the cash benefits granted pursuant to Sections 3, 3a Paragraph 1 No. 2b, Paragraph 2 No. 2b AsylbLG in the amount of €316.00), which partially covered the needs considered in the standard rate of level 3 according to the SGB XII, it is therefore rather unlikely that he was severely affected in his social and economic existence during the short period from August 2nd to October 31st, 2020.
For the period from November 1, 2020, to May 31, 2021, the applicant has demonstrated both a claim to and grounds for an injunction. The necessary legal dispute for issuing a preliminary injunction is established here because the applicant filed an objection on October 29, 2020, against the decision of the City of Hildesheim, acting on behalf of the respondent, dated October 27, 2020, granting him basic benefits for this period pursuant to Sections 3, 3a Paragraph 1 No. 2b, Paragraph 2 No. 2b of the Asylum Seekers' Benefits Act (AsylbLG). This objection is still pending.
The applicant has credibly demonstrated a claim to an order for subsistence benefits pursuant to Section 2 Paragraph 1 AsylbLG in conjunction with Sections 27 et seq. SGB XII according to the standard benefit level 1.
According to Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) in the version applicable since August 21, 2019, 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 and 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 applicant abused his rights by manipulating the duration of his stay in Germany, it can be assumed that the other requirements for entitlement to subsistence-level benefits are met. He is among those entitled to benefits under Section 1 of the Asylum Seekers' Benefits Act (AsylbLG) because he holds a temporary suspension of deportation (Duldung) under Section 60a of the Residence Act (AufenthG) (Section 1, Paragraph 1, No. 4 AsylbLG). He has also resided in Germany for a sufficiently long and uninterrupted period. It is irrelevant whether an uninterrupted stay of 18 months is required or whether, due to the transitional provision of Section 15 AsylbLG, the previously applicable stay period of 15 months still applies. Likewise, it is irrelevant whether the applicant and his family 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, he has been residing continuously in Germany for at least 27 months since July 30, 2018, and thus since the disputed commencement of benefits (November 1, 2020). There is no evidence to suggest that he can provide for his necessary living expenses from his own resources, particularly from income and assets (Section 19 Paragraph 1, Section 27 Paragraphs 1 and 2 Sentence 1, Sections 82 et seq., Section 90 of the German Social Code, Book XII).
Neither the applicant nor his parents can be accused of having abused their rights by influencing the duration of his stay in Germany within the meaning of Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG). The Senate refers in this respect to its statements regarding the applicant's parents, which are known to the parties, in its decision of February 4, 2020 – L 8 SO 118/20 B ER – according to which, after a summary review based on the current state of the facts and the 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 the parents abused their rights by influencing the duration of their stay in Germany within the meaning of Section 2 Paragraph 1 of the AsylbLG (in particular by providing inaccurate information about their identity and the identity of their children). This applies all the more to the applicant because the information about his identity comes from his parents, he, unlike his parents, has not provided any differing information in questionnaires for the clarification of identity and nationality, has not been requested by the immigration authorities to take any specific actions to cooperate, and it is currently not apparent what he should do after Serbia and Kosovo as well as North Macedonia have denied the corresponding nationality of his parents.
The applicant, who is therefore highly likely to be entitled to benefits in principle 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), is entitled to coverage of his standard needs according to standard needs level 1 pursuant to Section 8 Paragraph 1 Sentence 1 No. 1 of the Standard Needs Assessment Act (RBEG) of December 22, 2016 (Federal Law Gazette I p. 3159) in its version applicable from January 1 to December 31, 2020, or pursuant to Section 8 Sentence 1 No. 1 of the Standard Needs Assessment Act of December 9, 2020 (Federal Law Gazette I p. 2855), which entered into force on January 1, 2021. According to Section 8 Paragraph 1 Sentence 1 No. 1 of the Standard Needs Assessment Act (RBEG) in its version applicable in 2020, every adult person who lives in an apartment and for whom number 2 does not apply is to be assigned to standard needs level 1. For the purposes of this provision, an apartment is defined, according to Section 8 Paragraph 1 Sentence 3 of the RBEG (Standard Benefits Act) in its 2020 version, as a group of several rooms that are structurally separate from other apartments or living spaces and that, as a whole, comprise all the facilities, equipment, and premises necessary for running a household. According to Section 8 Sentence 1 Number 1 of the RBEG, which has been in effect since January 1, 2021, standard benefit level 1 applies to every adult who lives in an apartment as defined in Section 42a Paragraph 2 Sentence 2 of the German Social Code, Book XII (SGB XII), and for whom Number 2 does not apply. The definition of an apartment in Section 42a Paragraph 2 Sentence 2 of the SGB XII is the same as in Section 8 Paragraph 1 Sentence 3 of the RBEG in its 2020 version. The adult person excluded from the above-mentioned standard benefit level 2 (number 2) is someone who either lives in an apartment with a spouse or registered partner, or in a cohabiting relationship similar to marriage or registered partnership, or who does not live in an apartment because they are provided with personal living space, either alone or with one other person, and with other people, additional rooms for shared use (pursuant to Section 42a Paragraph 2 Sentence 3 of the German Social Code, Book XII). The adult applicant, born in 1999, has lived with his brother Bernardo in an apartment as defined by the aforementioned regulations since mid-October 2020 and does not belong to the aforementioned group of people for whom standard benefit level 2 applies. The accommodation he occupies is a self-contained unit, structurally separated from the other rooms of the residence, which, in addition to a living and sleeping area, includes a kitchenette (equipped with a stove, sink, and refrigerator) and a separate bathroom/toilet. Managing one's own household and providing oneself with hot meals is easily possible.
The requirements for the (exceptional) recognition of only a standard allowance at the level of standard allowance level 2 pursuant to Section 2 Paragraph 1 Sentence 4 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG) are not met. The applicant is not housed – as required by this provision – in communal accommodation within the meaning of Section 53 Paragraph 1 of the Asylum Act (AsylG) or in a reception facility pursuant to Section 44 Paragraph 1 of the Asylum Act (AsylG). The accommodation at Senkingstraße 10a in Hildesheim is not a (first) reception facility of the state, where asylum seekers are centrally registered and accommodated, and where they are regularly required to reside in the first stage of the asylum procedure immediately after submitting their asylum application (cf. on the concept of a reception facility: Hohm in GK-AsylbLG, as of June 2016, III. § 3 Rn. 49). The applicant is also not housed in communal accommodation. The term "communal accommodation" is not defined in either Section 53 of the Asylum Act (AsylG) or the Asylum Seekers' Benefits Act (AsylbLG). Communal accommodations are defined as those accommodations in which individual rooms (in particular living and sleeping areas, kitchen, and sanitary facilities) are shared by the foreign nationals housed there (Hohm, loc. cit., para. 56). According to the explanatory memorandum to the law (BT-Drs. 19/10052, pp. 20, 21, 25), the decisive factor is that the accommodation serves as communal housing and, due to the division into personal living space and shared rooms, allows for independent household management only to a very limited extent. Conversely, a distinction must be made between this and an apartment in the aforementioned sense (cf. already the Senate's decision of July 9, 2020 – L AY 52/20 B ER – juris para. 27). As already stated, the applicant resides in an apartment within the meaning of the aforementioned regulations, the premises and furnishings of which enable him to maintain an independent household to a high degree. In the building at Senkingstraße 10a, the living and sleeping areas, as well as the kitchen and bathroom/toilet, are all located in separate apartments. There is no communal kitchen(s) or shared sanitary facilities. The minor shared use of certain spaces (especially a laundry room) does not significantly restrict the residents' ability to live independently and does not preclude the classification of the accommodation as being in an apartment, especially since this practice is also common in some apartment buildings.
When benefits are granted at the full standard rate for needs level 1, double payments may occur due to partial coverage of needs by the existing furnishings in the accommodation. However, the respondent can address this by setting a different standard rate in accordance with Section 2 Paragraph 2 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Section 27a Paragraph 4 Sentence 1 Number 1 of the German Social Code, Book XII (SGB XII). This primarily involves a reduction by the portion of the standard rate allocated for housing, energy, and home maintenance (Section 4). However, restraint is advised regarding the portion for interior furnishings, household appliances, household items, and ongoing household management (Section 5) due to the savings it contains for future purchases.
Because of the essential nature of the analogous benefits, grounds for an order exist.
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.
