DECISION
In the legal dispute
xxx,
Applicant,
Legal representative:
Attorney Sven Adam
Lange, Geismarstraße 55, 37073 Göttingen
against
Gießen Regional Council, Initial Reception Center, Department VII,
Lilienthalstraße 2, 35394 Gießen
Respondent,
The 9th Chamber of the Marburg Social Court decided on April 13, 2021, through its presiding judge, Judge xxx:
The suspensive effect of the objection of 19 February 2021 against the decision of 15 February 2021 and of the action of 23 March 2020 brought against the decision of 15 February 2021 in the form of the objection decision of 22 March 2021 is ordered.
The respondent shall bear the applicant's extrajudicial costs.
REASONS
I.
The parties are in dispute regarding the granting of full benefits under the Asylum Seekers' Benefits Act (AsylbLG).
The applicant was born on xxx 1998 in xxx/Afghanistan, is an Afghan national and first entered the territory of the Federal Republic of Germany on April 19, 2016, with the request to be granted asylum.
The applicant received benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG). Most recently, the defendant, by a decision dated August 26, 2020, as amended by a decision dated January 27, 2021, granted cash benefits in the amount of €123.00, as well as benefits in kind in the form of a combined ticket for public transport valid for the district of accommodation, a one-time hygiene package, clothing in the form of a seasonal clothing package, and the necessary provisions for food, accommodation, healthcare, and household goods and consumables.
By letter dated December 22, 2020, the defendant notified the plaintiff of the intended restriction of his benefits pursuant to Section 1a of the Asylum Seekers' Benefits Act (AsylbLG). The plaintiff stated, in essence, that he had received and acknowledged the negative decision from the Federal Office for Migration and Refugees (BAMF). However, he could appeal the decision. He would remain in Germany and requested that his benefits not be reduced, as he needed to purchase medication in particular.
By decision dated February 15, 2021, the defendant, revoking the amending decision of January 27, 2021, and applying the restriction of entitlement pursuant to Section 1a Paragraph 7 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG), granted benefits effective immediately only to cover the need for food and accommodation, including heating, personal hygiene, and healthcare. According to the available documents, the plaintiff is subject to enforceable deportation. The asylum application was rejected as inadmissible by a decision of the Federal Office for Migration and Refugees (BAMF), and deportation was ordered. Due to the asylum application already filed in France, the French authorities are responsible for processing the asylum application. The reduction amount includes the benefits granted by the amending decision of January 27, totaling €146.00 (cash benefits of €123.00 and the RMV ticket of €23.00). The applicant is responsible for the reasons he has not yet departed, as he has failed to comply with the obligation to leave despite its permissibility, reasonableness, and possibility. There are neither factual nor legal reasons that would have prevented the applicant from departing for France.
The applicant filed an objection to the decision on February 19, 2021. The defendant rejected the objection as unfounded in a decision dated March 22, 2021. The restrictions on benefits were lawful. The prerequisites for a reduction in benefits pursuant to Section 1 Paragraph 7 of the Asylum Seekers' Benefits Act (AsylbLG) were met. The applicant's asylum application had been rejected as inadmissible because the French authorities were responsible due to the asylum application already filed there. Furthermore, deportation had been ordered. No prohibitions on deportation existed. Consequently, the applicant was responsible for his failure to leave the country. Regarding the constitutional concerns raised by the applicant's legal representative, it should be noted that the administration and courts are bound by law and that the sole power to declare constitutional violations unconstitutional rests with the Federal Constitutional Court.
The applicant also filed an application for preliminary legal protection with the Marburg Social Court on February 22, 2021. The applicant argues that, according to the decision of the Federal Constitutional Court, the present sanction cannot be constitutional. The legal representative refers to the reasoning of the Lower Saxony-Bremen State Social Court in proceedings L 8 AY 14/19 B ER (p. 3). While the court cannot reject the provision of Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) in this case due to doubts about its constitutionality, a decision must be made based on a balancing of interests. This would mean that the benefit reduction must be suspended until the conclusion of the main proceedings. This applies all the more so since a reduction of the standard benefit by more than 50% is incompatible with Article 1 of the Basic Law (GG) in any case.
The applicant requests verbatim that
the respondent be ordered, by way of an interim injunction, to grant the applicant, provisionally and subject to repayment, the requested benefits in the statutory amount from the date of receipt of this application, in accordance with the legal opinion of the court, until a final and binding decision is reached on the applicant's action of March 23, 2021, against the respondent's decision of February 15, 2021, as amended by the objection decision of March 22, 2021.
The respondent requests that
the application be rejected.
The conditions for reducing benefits under Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) are met, and no other assessment arises on grounds of constitutionality. Contrary to the arguments of the authorized representative, the applicant is also granted the essential benefits that must be guaranteed under Article 1 Paragraph 1 of the Basic Law (GG) in conjunction with Article 20 Paragraph 1 of the Basic Law (GG) and that are indispensable for ensuring a dignified minimum standard of living.
The applicant filed a lawsuit on March 23, 2021, against the objection decision issued on March 22, 2021.
For further details of the facts and the legal arguments, reference is made to the contents of the court file and the administrative files that were consulted.
II.
The application for preliminary legal protection was to be interpreted in this case as an isolated application pursuant to Section 86b Paragraph 1 Sentence 1 No. 2 of the Social Courts Act (SGG). The applicant requested a preliminary order mandating the payment of the requested benefits in the statutory amount from the date of receipt of this application for preliminary legal protection. However, the action against the decision on the objection does not have suspensive effect in this case due to Section 11 Paragraph 4 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG) (see Burkiczak in: Schlegel/Voelzke, jurisPK-SGG, 1st ed., Section 86b SGG [as of March 19, 2021], para. 95). However, with the decision of August 26, 2020, as amended by the decision of February 15, 2021, the respondent, from the perspective of the objective recipient, issued an administrative act with continuing effect ("you are entitled to the following basic income support benefits... until further notice") (see Oppermann/Filges in: Schlegel/Voelzke, jurisPK-SGB XII, 3rd ed., § 2 AsylbLG [as of January 5, 2021], para. 265). The respondent revoked these benefits with the decision of February 15, 2021. Therefore, the continuing administrative act is effectively reinstated by the order suspending its effect. Consequently, a separate preliminary order to provide benefits is not required in this case. The applicant's request, when interpreted in accordance with the most-favored-nation principle, clearly indicates that at least an order for suspensive effect is also being sought, as this would achieve the objective of the application.
The application, which is admissible as an isolated application for an order suspending the effect of the decision, is admissible and well-founded.
The comprehensive balancing of interests to be carried out within the framework of the summary review leads to the conclusion that, in this case, the applicant's interest in obtaining the order outweighs the respondent's interest in its enforcement. Due to the significant concerns regarding the constitutionality of Section 1a Paragraph 7 of the Social Court Act (SGG) and the resulting substantial disadvantages to the applicant's livelihood, the application was to be granted in this case.
According to Section 86b Paragraph 1 Sentence 1 No. 2 of the Social Court Act (SGG), the court may, in cases where an objection or appeal does not have suspensive effect, order the suspensive effect in whole or in part.
An application for an order suspending the enforcement of an administrative act pursuant to Section 86b Paragraph 1 No. 2 of the Social Court Act (SGG) is justified if the appellant's private interest in suspending the enforcement of the contested decision until a decision is reached in the main proceedings (private interest in suspension) outweighs the public interest in its immediate enforcement (public interest in enforcement). The necessary balancing of the private interest in suspension and the public interest in enforcement must be guided by the prospects of success in the main proceedings, because there is generally no public interest in the enforcement of an unlawful decision, whereas in the case of a lawful decision, the public interest generally takes precedence due to the legally mandated immediate enforceability. This requires a summary examination of the underlying facts. In addition, all other circumstances of the individual case that speak for and against immediate enforceability must be weighed against each other, in particular the specific public interest in enforcement in the individual case, the extent of the threatened infringement of rights, and the consequences that the immediate enforcement of an unlawful decision on the one hand and the suspension of the immediate enforcement of a lawful decision on the other would entail. The lower the prospects of success on the merits, the more weight the other circumstances arguing against immediate enforcement must be.
Based on these criteria, the suspensive effect of the objection decision of March 22, 2021 and the action against the respondent's decision of February 15, 2021, as amended by the objection decision of March 22, 2021, was therefore to be ordered.
Although the legislator, based on the provision of Section 11 Paragraph 4 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG), generally assumes that the interest in enforcement prevails, there are significant reservations regarding the constitutionality of Section 1a Paragraph 7 of the AsylbLG. Consequently, the Chamber has considerable doubts about the substantive legality of the underlying administrative act. In any case, the disadvantages facing the applicant if immediate enforcement is not ordered are considerably more severe than the disadvantages facing the respondent if the application is granted.
In the present case, the legality of the underlying administrative act is governed by Section 9 Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) in accordance with Section 48 of the Social Code, Book Ten (SGB X) in conjunction with Section 1a Paragraph 7 of the Asylum Seekers' Benefits Act (AsylbLG).
The respondent's decision of August 26, 2020, as amended by the decision of February 15, 2021, constitutes a continuing administrative act. In this case, the respondent granted benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) for an indefinite period. The respondent's decision of February 15, 2021, revokes this grant, at least in part, for the future.
According to Section 48 Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X), an administrative act with effect for the future must be revoked if there is a significant change in the factual or legal circumstances that existed when the administrative act was issued.
According to Section 1a Paragraph 7 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG), persons entitled to benefits under Section 1 Paragraph 1 Number 1 or 5, whose asylum application has been rejected as inadmissible by a decision of the Federal Office for Migration and Refugees under Section 29 Paragraph 1 Number 1 in conjunction with Section 31 Paragraph 6 of the Asylum Act and for whom deportation has been ordered under Section 34a Paragraph 1 Sentence 1 second alternative of the Asylum Act, shall only receive benefits in accordance with Paragraph 1, even if the decision is not yet final.
However, the provision of Section 1a Paragraph 7 of the Asylum Seekers' Benefits Act (AsylbLG) raises significant constitutional concerns.
The Hessian State Social Court already stated in its decision of March 31, 2020 – L4 AY 2/20 B ER, juris Rn. 38 ff.:
"Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) has been subject to constitutional criticism for some time, insofar as its legal consequence provides for the complete elimination of the necessary personal needs to cover the socio-cultural subsistence minimum (in particular Brings/Oehl, ZAR 2016, 22; Janda SGb 2018, 344; Kanalan, ZfSH/SGB 2018, 241; Oppermann, ZESAR 2017, 55 <60 f.>; ibid. in: Schlegel/Voelzke, jurisPK-SGB XII, 3rd ed. 2020, § 1a AsylbLG para. 207 ff.; Voigt, info also 2016, 99). Even before the judgment of the Federal Constitutional Court of November 5, 2019 – 1 BvL 7/16 – the sanctioning of entry to obtain benefits was already being challenged." a migration control measure that is unconstitutional according to the standard of BVerfGE 132, 134 (Voigt, info also 2016, 99 <102>; considering SG Münster, decision of 1 March 2013 – S 12 AY 13/13 ER -, juris Rn. 12 f.) and doubts its constitutionality because this provision does not give those affected the opportunity to change their behavior in such a way that they again receive benefits that cover their needs (generally Janda, ZAR 2013, 175 <180 f.>; considering this Senate decision of 9 December 2013 – L 4 AY 17/13 B ER –, juris Rn. 28).
Based on the ruling of the Federal Constitutional Court of November 5, 2019 – 1 BvL 7/16 – legally mandated shortfalls in the amount of basic necessities for subsistence are not precluded from the outset for reasons unrelated to actual need. However, the scope of legitimate purposes for imposing obligations to cooperate or refrain from certain actions and for sanctioning them must be narrowly defined (see Federal Constitutional Court, ruling of November 5, 2019 – 1 BvL 7/16 –, juris para. 121, 123 ff., 130 f.). The Basic Law does not recognize any general fundamental duties of citizens. In particular, human dignity is guaranteed regardless of characteristics, social status, or achievements; it does not have to be earned but is inherent in every human being. A person's independent means of subsistence are not a prerequisite for possessing human dignity. Creating the conditions for an independent life is, in fact, part of the state's duty to protect its citizens under Article 1, Paragraph 1, Sentence 2 of the Basic Law (Federal Constitutional Court, loc. cit., para. 123). The obligation to guarantee a minimum standard of living cannot be relativized, even for the purpose of achieving other objectives, particularly those related to migration policy (cf. Federal Constitutional Court, loc. cit., para. 120; E 132, 134 <173 para. 95>). However, the social welfare state depends on the fact that public funds intended to assist its needy members are only used in cases where genuine need exists (cf. Federal Constitutional Court, loc. cit., para. 124). A restriction of entitlements can only comply with the requirements of Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1 of the Basic Law if it is not aimed at repressively punishing misconduct, but rather at ensuring that obligations to cooperate are fulfilled which serve precisely to avoid or overcome existential need (Federal Constitutional Court, loc. cit., para. 131).
The Senate is aware that a difference between the sanctions under Sections 31 et seq. of the German Social Code, Book II (SGB II), which the Federal Constitutional Court had to decide upon, and the sanctions under Sections 1a and 14 of the Asylum Seekers' Benefits Act (AsylbLG), which the legislature has otherwise designed in parallel to the SGB II since 2015 (regarding the sanctioning nature and the parallels to the SGB II: Cantzler, AsylbLG, 2019, Section 1a, marginal note 1; Oppermann in: jurisPK-SGB XII, Section 1a AsylbLG, marginal notes 137, 222), lies in the fact that the sanction provisions to be reviewed by the Federal Constitutional Court had a close connection to the principle of subsidiarity in the law on securing subsistence. The required actions there aimed more or less at overcoming the need for assistance. Here, however, the obligations to act or refrain from acting aim not only at preventing or ending abuse of rights but also at complying with asylum or migration law or creating conditions compliant with migration law. The Federal Constitutional Court's ruling of November 5, 2019 – 1 BvL 7/16 – therefore cannot provide a definitive standard for the constitutionality of such sanctions. However, at the level of constitutional doctrine, an identical question arises in both cases: Under what conditions can obligations to act or refrain from acting be sanctioned by a reduction in benefits or a restriction of entitlements based on considerations unrelated to need? Unlike the Federal Constitutional Court's decisions regarding standard benefits, both cases do not concern the constitutional limits of the needs-based design of the entitlement, but rather the permissibility of falling below this level – in the former case through percentage reductions, and in the latter, among other things, through the complete exclusion of necessary personal needs or the so-called socio-cultural subsistence minimum. In any case, the prohibition of purely repressive punishment of misconduct should be transferable in this context (cf. regarding the present variant § 1a AsylbLG on the standard of the legal aid procedure LSG Lower Saxony-Bremen, decision of 4 December 2019 – L 8 AY 36/19 B ER, page 4 bottom).
The Federal Constitutional Court's statement that even a social welfare state relies on public funds intended to assist its needy members being used only in cases of genuine need (BVerfG loc. cit. para. 124; BVerfGE 142, 353 <371 para. 39>) also fundamentally supports the goal of preventing abuse of rights (see also Senate decision of February 26, 2020 – L 4 AY 14/19 B ER –, juris). However, this legitimate regulatory objective is limited by the fact that the social welfare principle requires state support and assistance even for those whose personal and social development is hindered due to personal weakness or guilt, incapacity, or social disadvantage. The resulting obligation to guarantee a minimum standard of living cannot be relativized, even for the purpose of achieving other objectives (Federal Constitutional Court, loc. cit., para. 120; see also Federal Constitutional Court Decisions 132, 134 <173 para. 95>). In the area of migration, the legislature must also be aware that the right under Article 1 para. 1 in conjunction with Article 20 para. 1 of the Basic Law applies to every person, regardless of their nationality, who is "present" (Federal Constitutional Court Decisions 132, 134 <159 para. 63>) or "lives" (Federal Constitutional Court Decisions 40, 121 <133>) within the territory of application of the Basic Law. As long as the German state receives, accommodates, or even merely tolerates persons on its territory, they are also entitled to benefits (Kirchhof, NZS 2015, 1 <4>). The status-independent nature of the protection of human dignity is therefore also manifested in its independence from residence status (Schreiber, SR 2018, 181 <182 f.>). Because of this protective purpose, which is precisely intended by the fundamental right, the legislature may neither reduce or withhold benefits below the constitutionally recognized level of need solely on the grounds of the illegality of residence, nor for supposedly general preventive or repressive reasons in order to restrict migration.
Even though a distinction must be made between the constitutional requirements for obligations to cooperate and for benefit reductions as a sanction (see Federal Constitutional Court, loc. cit., paras. 123 et seq. on the one hand and paras. 129 et seq. on the other), the strict proportionality requirements for benefit reductions developed by the Federal Constitutional Court (Federal Constitutional Court, loc. cit., paras. 129 et seq.) indirectly limit the scope of sanctionable obligations to act or refrain from acting. Benefit reductions are only proportionate if, considering their suitability for achieving this purpose and as the least restrictive, equally suitable means, the reduction is commensurate with the burden placed on the affected individuals. This presupposes that it is actually possible for the affected individuals to avert the reduction of state benefits through their own reasonable conduct and to regain the subsistence-level benefits. The requirements of Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1 of the Basic Law are therefore only met if the benefits necessary to cover all essential needs are available to those in need and it is their own responsibility to create, in a reasonable manner, the conditions for receiving the benefit again even after a reduction (Federal Constitutional Court, loc. cit., para. 133). These requirements also preclude purely repressive benefit reductions where the person entitled to benefits is not given any option for appropriate action to avert the sanction
These concerns also arise in the present case with regard to Section 1a Paragraph 7 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG), which is applicable here. Furthermore, it must be taken into account that, by decision of February 19, 2021, as amended by the appeal decision of March 22, 2021, cash benefits and the ticket for the use of public transport were completely withdrawn, and only benefits in kind were granted. This therefore constitutes a significant restriction of the socio-cultural minimum standard of living.
Although the applicant is obligated to leave the country and therefore has no prospect of remaining in Germany, and has also filed an asylum application in France, where he has been threatened with deportation, this does not justify a different assessment. The applicant's failure to leave cannot, in itself, be considered avoidable personal misconduct (see Social Court Oldenburg, decision of February 20, 2020, S 25 AY 3/20 ER, BeckRS 2020, 3170, para. 24). Therefore, the applicant cannot be faulted for simply not leaving. In particular, the authorities themselves can enforce departure by carrying out the deportation order. The complete reduction of the cash allowance and the local public transport ticket implemented here is tantamount to a sanction intended to force departure (see also Oppermann in: Schlegel/Voelzke, jurisPK-SGB XII, 3rd ed., § 1a AsylbLG [as of March 23, 2021], para. 209). Section 14 of the AsylbLG also does not permit permanent benefit restrictions under Section 1a AsylbLG, but rather provides for a time limit and a renewed review.
Because of the fundamental rights weight given to the benefits, which are intended to safeguard the human dignity of the benefit recipient, the interest in enforcement must therefore take a back seat to the interest in suspension in this case.
The controversial question of whether the provision is to be interpreted in a manner consistent with the constitution, with the consequence that benefits are to be granted contrary to the wording of Section 3 Paragraph 1 of the Asylum Seekers' Benefits Act (as held by the Higher Social Court of Hesse for Section 1a Paragraph 1 Sentence 3 of the Asylum Seekers' Benefits Act, decision of February 26, 2020 – L 4 AY 14/19 B ER – juris Rn. 49 ff.; see also Higher Social Court of Hesse, decision of March 31, 2020 – L 4 AY 4/20 B ER for Section 1a Paragraph 1 and Paragraph 2 of the Asylum Seekers' Benefits Act, BeckRS 2020, 6698 Rn. 34 ff.) can remain open in the present case, since the provision of Section 1a Paragraph 7 of the Asylum Seekers' Benefits Act can remain inapplicable here.
The Chamber is not prevented from disapplying the provision of Section 1a Paragraph 7 of the Asylum Seekers' Benefits Act (AsylbLG). This does not arise, in particular, from the statutory obligation of the specialized courts (Article 20 Paragraph 3 of the Basic Law) or the Federal Constitutional Court's monopoly on declaring constitutional provisions unconstitutional (Article 100 Paragraph 1 Sentence 1 of the Basic Law). While the specialized courts cannot expand the scope of legal protection for those seeking it without a statutory basis, they are therefore prohibited from granting a claim based on alleged unconstitutional deficiencies on the part of the legislature. On the other hand, the specialized court can protect those seeking legal protection from interference by public authorities (or infringements by private third parties) insofar as this is required under Article 19 Paragraph 4 Sentence 1 of the Basic Law or Article 2 Paragraph 1 in conjunction with Article 20 Paragraph 3 of the Basic Law, provided that no irreversible facts are created.
The specialized courts can therefore grant preliminary legal protection if they have serious doubts as to whether a provision of ordinary law, which the authority uses as a legal basis for interfering with the legal sphere of the person concerned, is compatible with the Basic Law. This is the case here.
The decision on costs is based on Sections 183 Sentence 1 and 193 of the Social Court Act (SGG) by analogy. In the present case, it is equitable to impose the full costs on the respondent.
The instructions on legal remedies follow from Section 172 Paragraph 1 of the Social Court Act (SGG).
The following is information on legal remedies.
