Kiss
S 27 AY 4032/20 ER
In the legal dispute
1. xxx,
2. xxx,
3. xxx,
4. xxx,
5. xxx,
6. xxx,
7. xxx,
– Applicant –
Legal representative:
for 1-7: Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
Holzminden District Legal Department and Municipal Supervision,
represented by the District Administrator,
Bürgermeister-Schrader-Straße 24, 37603 Holzminden
– Respondent –
The 27th Chamber of the Hildesheim Social Court decided on February 19, 2021, through Judge xxx:
The respondent is ordered by way of preliminary injunction to grant the applicants provisionally privileged benefits pursuant to Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Book XII of the German Social Code (SGB XII) for the period from December 20, 2020 until a decision is made on the objection to the decision of August 18, 2020, but no later than June 20, 2021.
The respondent must reimburse the applicants for their necessary extrajudicial costs.
REASONS
I.
The applicants seek, within the framework of the preliminary injunction, the granting of full, privileged benefits pursuant to Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with the Social Code Book Twelve (SGB XII) by analogy from 20 December 2020
The applicants, who originated from the Russian Federation, stated that they first entered the Federal Republic of Germany on September 5, 2015. The Federal Office for Migration and Refugees (BAMF) rejected their asylum application as inadmissible in a decision dated May 25, 2016, found no grounds for prohibiting deportation, and ordered their deportation to Poland. Appeals against this decision were unsuccessful (see Hanover Administrative Court, decision of July 27, 2016 – 1 B 3328/16 and decision of January 2, 2017 – 1 A 3327/16).
After being deported to Poland on August 29, 2016, the applicants re-entered the Federal Republic of Germany on January 25, 2017. Following their re-entry, the Lower Saxony State Reception Authority assigned the applicants to the jurisdiction of the respondent on March 15, 2017, who granted them benefits under the Asylum Seekers' Benefits Act (AsylbLG). After their personal hearing on March 21, 2017, the Federal Office for Migration and Refugees (BAMF) rejected their renewed asylum application, submitted on January 30, 2017, as inadmissible in a decision dated April 10, 2017, found no grounds for prohibiting deportation, and ordered their deportation to Poland. Their subsequent legal action was dismissed by judgment dated November 21, 2018 (Case No. 1 A 3377/17). Since then, the applicants' stay in Germany has been tolerated.
By the contested decision of 18 August 2020, the respondent granted the applicants basic benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) in the amount of €1231.04 from September 2020.
The respondent has not yet decided on the objection filed against this on August 31, 2020.
On December 19, 2020, the applicants filed an application for a preliminary injunction. They argue, in particular, that the transition to benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) was wrongly omitted. They contend that the waiting period stipulated in Section 2 Paragraph 1 of the AsylbLG had long been exceeded and that the applicants themselves did not abuse their rights by influencing the duration of their stay.
The applicants request that
the respondent be ordered by way of an interim injunction to grant the applicants provisional benefits pursuant to Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Book XII of the German Social Code (SGB XII) until a legally binding decision is reached regarding the objection of August 31, 2020.
The respondent requests that
the application be dismissed.
The respondent argues that the applicants abused their rights by manipulating the duration of their stay in the Federal Republic of Germany, thus retroactively disqualifying them from receiving benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG). Their re-entry after deportation in August 2016, with a temporary stay of six months, constitutes an abuse of rights by manipulating their stay in Germany.
Regarding the further submissions of the parties, reference is made to the contents of the court file, the administrative file, and the foreigner's file.
II.
The application for a preliminary injunction is admissible and well-founded. The applicants are entitled to privileged benefits pursuant to Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) from the date of application to the court.
According to Section 86b Paragraph 2 of the Social Court Act (SGG), the court may, upon application, issue a preliminary injunction concerning the subject matter of the dispute if there is a risk that a change in the existing situation could frustrate or significantly impede the applicant's exercise of a right. According to Section 86b Paragraph 2 Sentence 2 SGG, preliminary injunctions are also permissible to regulate a provisional state of affairs with regard to a disputed legal relationship if such regulation appears necessary to avert substantial disadvantages. In this context, the granting of preliminary legal protection requires a claim to the injunction, i.e., a substantive legal claim to the benefit to which the respondent is to be granted by way of preliminary legal protection, as well as grounds for the injunction, namely a set of facts that establishes the urgency of the injunction. According to Section 86b Paragraph 2 Sentence 4 SGG in conjunction with Section 920 Paragraph 2 of the Code of Civil Procedure (ZPO), the grounds for the injunction and the claim to the injunction must be substantiated. Insofar as the prospects of success are considered in connection with the claim for an injunction, the factual and legal situation must be examined not merely summarily, but conclusively (see Federal Constitutional Court, decision of May 12, 2005 – 1 BvR 569/05 –). Moreover, the requirement of establishing prima facie evidence relates only to the reduced scope of review and the need for a degree of certainty, requiring only a preponderance of probability, regarding the factual prerequisites for the claim for an injunction and the grounds for the injunction (see decisions of the Hessian State Social Court (LSG) of June 29, 2005 – L 7 AS 1/05 ER –, and of February 12, 1997 – L 7 AS 225/06 ER –; Berlit, info also 2005, 3, 8).
1.)
The court is convinced that the applicants have credibly demonstrated a claim to an injunction. Based on the summary review required in expedited proceedings, the existence of the prerequisites for granting benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Book XII of the German Social Code (SGB XII) appears sufficiently established. They are therefore entitled to a benefit award 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).
The applicants, as holders of a tolerated stay pursuant to Section 1 Paragraph 1 Number 4 of the Asylum Seekers' Benefits Act (AsylbLG), are entitled to benefits under this Act and have fulfilled the required period of residence with regard to Section 15 of the Asylum Seekers' Benefits Act (AsylbLG).
The Chamber is convinced that there is no abusive manipulation of the duration of the stay in the federal territory within the meaning of Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG), which would preclude the granting of privileged benefits.
According to Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) in the version applicable from March 1, 2015, to August 20, 2019 (Law Amending the Asylum Seekers' Benefits Act and the Social Courts Act of December 10, 2014), the Social Code, Book XII (SGB XII), is to be applied accordingly, notwithstanding Sections 3 and 4 as well as 6 to 7, to those beneficiaries who have resided in Germany for 15 months without significant interruption and who have not abusively influenced the duration of their stay. Apart from the question of whether the applicants abusively influenced the duration of their stay, the other prerequisites for an entitlement to analogous subsistence benefits are met.
After a summary examination of the facts and the law, the applicants cannot be accused of having abused their rights by influencing the duration of their stay within the meaning of Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG).
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 in this sense 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 impact on the applicant's residence permit. Given the punitive nature of Section 2 of the Asylum Seekers' Benefits Act (AsylbLG), not just any conduct that is in any way reprehensible is sufficient. The nature, extent, and consequences of the breach of duty must be so serious for the foreigner that the breach itself 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 specific circumstances of the individual case, the particular situation of a foreigner in the Federal Republic of Germany, and the specific characteristics of the Asylum Seekers' Benefits Act (AsylbLG) can lead to the exclusion of analogous benefits (Lower Saxony-Bremen Higher Social Court, decision of April 9, 2020 – L 8 AY 4/20 B ER –, para. 37, juris). Conduct prior to entry into the federal territory can also be considered an abuse of rights (Federal Social Court, ibid., juris para. 40). An influence on the length of stay is generally present if, from a general and abstract perspective, the abusive conduct can typically prolong the length of stay. An exception to this is made if any obligation of the foreigner concerned to leave the country could not have been enforced during the entire period of the abuse of rights, regardless of their conduct (Federal Social Court, ibid., juris para. 44). The burden of proof for an abuse of rights lies with the benefit provider (Oppermann in jurisPK-SGB XII, 3rd edition 2020, § 2 AsylbLG Rn. 140-143).
The applicants first entered Germany in November 2015. They were deported to Poland in August 2016 and, according to their own statements, re-entered Germany in January 2017. However, this fact alone does not justify the assumption that they re-entered for the purpose of receiving benefits. Based on an overall assessment of the circumstances, the court is convinced that the applicants did not enter Germany to receive benefits. Rather, the circumstances suggest that their re-entry was for the purpose of establishing a livelihood in Germany. Re-entry into Germany, in itself, does not constitute an abuse of rights (cf. Lower Saxony-Bremen Higher Social Court, decision of April 9, 2020 – L 8 AY 4/20 B ER).
In particular, the fact that applicant 1 submitted a job offer with prospects of employment to the respondent's immigration office in 2017 and applied for a work permit (pp. 136 ff. of the immigration file) speaks volumes. Applicant 1, who is employed, supports himself and applicants 2 through 7 with a net monthly income of approximately €1,550.00. Applicant 1 has been working in this capacity since receiving approval in July 2017. Therefore, the court is convinced that he wishes to secure his family's livelihood in Germany to the greatest extent possible through his own efforts.
Based on this, the applicants' conduct does not provide sufficient evidence of an abuse of rights. The applicants' endeavor to secure a livelihood for themselves and their family is likewise not to be considered an abuse of rights (see Lower Saxony-Bremen State Social Court, decision of April 9, 2020 – L 8 AY 4/20 B ER –, para. 38, juris).
The applicants have therefore credibly demonstrated that they meet the further requirements for entitlement to 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).
2.)
The applicants have credibly demonstrated grounds for an injunction, as a particular urgency arises from the subsistence-securing nature of the benefits (see LSG Lower Saxony-Bremen, decision of April 9, 2020 – L 8 AY 4/20 B ER).
The decision on costs follows analogously from Section 193 Paragraph 1 of the Social Court Act (SGG).
An appeal against this decision is admissible pursuant to Sections 172 Paragraph 3 Number 1, 144 Paragraph 1 Sentence 1 Number 1 of the Social Court Act (SGG), with regard to the calculation of the respondent's appeal, which results from the difference between benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) pursuant to Section 1a AsylbLG (applicants 1 and 2) or Sections 3, 3a AsylbLG (applicants 3 to 5) relating to a period of one year (cf. Lower Saxony-Bremen Higher Social Court, decision of 17 August 2017 – L 8 AY 1/17 BU ER).
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