DECISION
In the litigation
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 the chairwoman, Judge xxx:
The suspensive effect of the objection of February 19, 2021 against the decision of February 15, 2021 and the action of March 23, 2020 filed against the decision of February 15, 2021 in the form of the objection decision of March 22, 2021 is ordered.
The respondent must bear the applicant's out-of-court costs.
REASONS
I
The parties involved are in dispute about the granting of full benefits under the Asylum Seekers Benefits Act (AsylbLG).
The applicant was born on xxx 1998 in xxx/Afganistan, is an Afghan citizen and entered the federal territory of the Federal Republic of Germany for the first time on April 19, 2016 with the request to be granted asylum.
The applicant received benefits in accordance with Sections 3 and 3a AsylbLG. Most recently, with an approval notice of August 26, 2020 in the form of the change notice of January 27, 2021, the defendant approved cash benefits in the amount of €123.00 as well as benefits in kind in the form of a combination ticket for the use of public transport valid for the district of accommodation, a one-time hygiene package , clothing in the form of a seasonal clothing package as well as the necessary food, shelter, health care and household durables and consumables in kind.
In a letter dated December 22, 2020, the defendant heard the plaintiff regarding the intended limitation of claims in accordance with Section 1a AsylbLG. The plaintiff stated that he had received and taken note of the negative decision from the BAMF. However, he could sue against the decision. He would stay in Germany for so long and asked that the benefits not be reduced because medication in particular had to be purchased.
By decision of February 15, 2021, the defendant, repealing the amendment decision of January 27, 2021, in application of the limitation of claims in accordance with Section 1a paragraph 7 sentence 1 AsylbLG, with immediate effect only granted benefits to cover the needs for food and accommodation including heating, physical and Healthcare. According to the available documents, the plaintiff is legally obliged to leave the country. The asylum application was rejected as inadmissible by a decision of the Federal Office for Migration and Refugees (BAMF) and deportation was ordered. Because the asylum application has already been submitted in France, the French authorities are responsible for processing the asylum application. The reduction amount includes the benefits granted with the change notice of January 27th in the amount of €146.00 (cash benefits in the amount of €123.00 and the RMV ticket in the amount of €23.00). The applicant himself is responsible for the reasons for not leaving the country so far, as he has not complied with the obligation to leave the country despite it being admissible, reasonable and possible. There were neither factual nor legal reasons why the applicant was unable to leave the country for France.
The applicant filed an objection against the decision on February 19, 2021. The defendant rejected the objection as unfounded in an objection decision dated March 22, 2021. The restrictions on services were carried out legally. The requirements for a reduction in benefits in accordance with Section 1 Paragraph 7 AsylbLG are met. The applicant's asylum application was rejected as inadmissible because the French authorities were responsible due to the asylum application already submitted there. The deportation was also ordered. There are no deportation bans. The applicant is therefore responsible for the failure to leave the country. The constitutional concerns raised by the applicant's legal representative should be countered by the fact that the administration and courts are bound by law and the Federal Constitutional Court has the monopoly on objection.
The applicant also filed an application for interim legal protection before the Marburg Social Court on February 22, 2021. The applicant submits that, according to the Federal Constitutional Court's decision, the present sanction cannot be constitutional. The legal representative refers to the statements of the Lower Saxony-Bremen State Social Court in the case L 8 AY 14/19 B ER (page 3). In this case, the court cannot reject the norm of Section 1a AsylbLG due to doubts about its constitutionality. However, a decision must be made as part of a consideration of the consequences. This would mean that the reduction in benefits would initially have to be suspended until the main proceedings have been concluded. This applies all the more since, in this case, a reduction in standard requirements of more than 50% cannot be reconciled with Article 1 of the Basic Law.
The applicant literally requests that
the respondent be obliged by means of an interim order to provide the applicant with provisional and subject to repayment until a final decision has been made on the applicant's lawsuit of March 23, 2021 against the respondent's decision of February 15, 2021 in the form of the objection decision of March 22, 2021, taking into account the legal opinion of the court, to grant the requested benefits at the statutory amount from receipt of this application.
The respondent requests that
the application be rejected.
The prerequisites for the reduction in benefits according to §1a AsylbLG are present and a different assessment would not arise for reasons of constitutionality. Contrary to the statements made by the authorized representative, the applicant would also be granted the services that follow from Article 1 Paragraph 1 of the Basic Law in conjunction with Article 20 Paragraph 1 of the Basic Law and which are essential to ensure a humane minimum subsistence level.
On March 23, 2021, the applicant filed a lawsuit against the objection decision issued on March 22, 2021.
For further details of the facts and status of the dispute, reference is made to the content of the court file and the administrative files consulted.
II.
In this case, the application for interim legal protection was to be interpreted as an isolated application in accordance with Section 86b Paragraph 1 Sentence 1 No. 2 of the Social Court Act (SGG). In the present case, the applicant applied for the provisional obligation to provide the requested benefits at the statutory rate from receipt of this application in interim legal protection. However, the lawsuit against the objection decision has no suspensive effect in this case due to Section 11 Paragraph 4 No. 1 AsylbLG (see also Burkiczak in: Schlegel/Voelzke, jurisPK-SGG, 1st ed., Section 86b SGG [as of March 19, 2021], 95). However, with the decision of August 26, 2020, in the form of the change decision of February 15, 2021, the respondent issued an administrative act with permanent effect from the perspective of the objective recipient ("you are entitled to the following basic security benefits until further notice") (see also Oppermann/Filges in: Schlegel/Voelzke, jurisPK-SGB XII, 3rd edition, § 2 AsylbLG [as of January 5, 2021], Rn. 265). The respondent withdrew these benefits with a decision dated February 15, 2021. The permanent administrative act is therefore revived with the order of the suspensive effect. There is therefore no need for a separate provisional obligation to perform in this case. When interpreting the applicant's request, taking into account the most favored nation principle, it can clearly be seen that in this case at least an order of suspensive effect is requested, as this can achieve the objective of the application.
The application, which is admissible as an isolated application for an order of suspensive effect, is admissible and justified.
In the present case, the comprehensive weighing of interests to be carried out as part of the summary examination results in the applicant's interest in ordering outweighing the respondent's interest in enforcement. Due to the considerable concerns about the constitutionality of Section 1a Paragraph 7 SGG and the resulting significant disadvantages for the applicant in terms of securing his or her livelihood, the application had to be approved in this case.
According to Section 86b Paragraph 1 Sentence 1 No. 2 SGG, the court can order the suspensive effect in whole or in part in cases in which an objection or an action for annulment does not have a suspensive effect.
An application for an order of suspensive effect in accordance with Section 86b Paragraph 1 No. 2 SGG is justified if the private interest of the contesting party in suspending the implementation of the contested decision until the decision on the main matter is made (private interest in suspension) is opposed to the public interest in its immediate execution ( public enforcement interest) predominates. The necessary balancing between the private interest in suspension and the public interest in enforcement must be based on the prospects of success in the main case, because there is generally no public interest in enforcing an illegal decision, whereas in the case of a lawful decision the public interest is in view of the legally mandated, Immediate enforceability is usually a priority. A summary examination of the underlying facts of life must be carried out. In addition, all other circumstances of the individual case that speak for and against immediate enforcement must also be weighed against each other, in particular the particular interest in enforcement in the individual case, the extent of the threatened legal impairment and the consequences of the immediate enforcement of an illegal decision on the one hand and the suspension of immediate enforcement of one legal decision on the other hand would entail. The lower the chances of success in the main matter, the more important the other circumstances that speak against immediate enforcement must be.
Based on these criteria, the suspensive effect of the objection decision of March 22, 2021 and the lawsuit against the respondent's decision of February 15, 2021 in the form of the objection decision of March 22, 2021 had to be ordered.
Based on the provisions of Section 11 Paragraph 4 No. 1 AsylbLG, the legislature generally assumes that the interest in enforcement predominates. However, there are significant reservations regarding the constitutionality of Section 1a Paragraph 7 AsylbLG. The Chamber therefore has considerable doubts about the substantive legality of the underlying administrative act. In any case, the disadvantages faced by the applicant if immediate enforcement is not ordered are considerably greater than the disadvantages suffered by the respondent if the application is granted.
In the present case, the legality of the underlying administrative act on Section 9 Paragraph 3 AsylbLG is based on Section 48 of the Tenth Book of the Social Security Code (SGB X) in corresponding application in conjunction with Section 1a Paragraph 7 AsylbLG.
The respondent's decision of August 26, 2020 in the form of the change decision of February 15, 2021 is a permanent administrative act. In this case, the respondent has approved benefits in accordance with Sections 3 and 3a AsylbLG for an indefinite period of time. The respondent's decision of February 15, 2021 at least partially revokes this for the future.
According to Section 48 Paragraph 1 Sentence 1 SGB
According to § 1 a paragraph 7 sentence 1 AsylbLG, those entitled to benefits according to § 1 paragraph 1 number 1 or 5 whose asylum application is deemed inadmissible by a decision of the Federal Office for Migration and Refugees according to § 29 paragraph 1 number 1 in conjunction with § 31 paragraph 6 of the Asylum Act will receive benefits was rejected and for whom deportation was ordered in accordance with Section 34a Paragraph 1 Sentence 1 Second Alternative of the Asylum Act, only benefits in accordance with Paragraph 1, even if the decision is not yet final.
However, the norm of Section 1a Paragraph 7 AsylbLG raises significant constitutional concerns.
The Hesse State Social Court has already stated in its decision of March 31, 2020 -L4 AY 2/20 B ER, juris Rn. 38 ff.:
“§ 1a AsylbLG has been subject to constitutional criticism for some time, insofar as the 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.>; this in: Schlegel/Voelzke, jurisPK-SGB XII, 3rd edition 2020, § 1a AsylbLG Rn. 207 ff.; Voigt, info also 2016, 99). Even before the ruling of the Federal Constitutional Court of November 5, 2019 - 1 BvL 7/16 - the sanctioning of entry in order to obtain benefits was seen as a constitutionally inadmissible migration control based on BVerfGE 132, 134 (Voigt, info also 2016, 99 <102>; considering SG Münster, decision of March 1, 2013 - S 12 AY 13/13 ER -, juris para. 12 f.) and doubted the constitutional conformity because this fact does not give those affected the opportunity to change their behavior to change so that they again receive benefits that meet their needs (general Janda, ZAR 2013, 175 <180 f.>; considering this Senate resolution of December 9, 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 stipulated underfunding of what is needed to secure one's existence is not excluded from the outset for considerations independent of needs. However, the circle of legitimate purposes for imposing obligations to cooperate or refrain from cooperation and for sanctioning them must be narrow (see below BVerfG, judgment of November 5, 2019 - 1 BvL 7/16 -, juris Rn. 121, 123 ff., 130 f .). The Basic Law does not recognize any general basic duties of citizens. In particular, human dignity is guaranteed without regard to characteristics and social status, as well as without regard to achievements; It does not have to be worked out, but is available to every person on their own initiative. People's ability to independently secure their existence is not a prerequisite for them to have human dignity; Rather, creating the conditions for a self-responsible life is part of the state's protective mandate under Article 1, Paragraph 1, Sentence 2 of the Basic Law (BVerfG ibid. para. 123). The obligation to ensure the subsistence minimum cannot be relativized in order to achieve other goals, in particular migration policy goals (cf. BVerfGE ibid. para. 120; E 132, 134 <173 para. 95>). However, the social constitutional state is dependent on the general public's resources, which are intended to help its needy members, only being used in cases where there is real need (cf. BVerfGE ibid. para. 124). A limitation of claims can only meet the requirements of Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1 GG if it is not aimed at repressively punishing misconduct, but rather at ensuring that obligations to cooperate are fulfilled that serve precisely this purpose , to avoid or overcome existential need (BVerfG ibid. para. 131).
The Senate does not ignore the fact that there is a difference between the sanctions in Sections 31 ff. SGB II, on which the Federal Constitutional Court had to decide, and the sanctions in Sections 1a, 14 AsylbLG, which have been developed by the legislature since 2015 in parallel with SGB II (on the nature of sanctions and the parallels to SGB II: Cantzler, AsylbLG, 2019 § 1a Rn. 1; Oppermann in: jurisPK-SGB XII, § 1a AsylbLG Rn. 137, 222) is that the sanction standards to be examined by the Federal Constitutional Court have a narrow one reference to the subordinate principle of the right to security of existence. The cooperative actions there were aimed more or less at overcoming the need for help. Here, however, the obligations to act or refrain from acting are aimed not only at preventing or ending abuse of rights, but also at complying with asylum or migration law or creating conditions that comply with migration law. The judgment of the Federal Constitutional Court of November 5, 2019 - 1 BvL 7/16 - cannot therefore represent a final standard for the constitutional admissibility of such sanctions. At the constitutional dogmatic level, however, an identical question arises here and there: Under what conditions can obligations to act or refrain from acting for needs-independent considerations be sanctioned by a reduction in benefits or restrictions on entitlement? In contrast to the Federal Constitutional Court's standard benefit decisions, in both cases it is not about the constitutional limits of the needs-covering design of the entitlement, but rather about the permissibility of falling below this level, there through percentage reductions, here, among other things, through the complete exclusion of the necessary personal needs or the so-called socio-cultural subsistence minimum. In any case, the ban on purely repressive punishment for misconduct should be transferable against this background (cf. for the local variant, § 1a AsylbLG based on the PKH procedure LSG Niedersachsen-Bremen, decision of December 4, 2019 - L 8 AY 36/19 B ER , page 4 below).
The Federal Constitutional Court's statement that the social constitutional state is also dependent on the general public's resources, which are intended to help its members in need, only being used in cases where there is real need (BVerfG ibid. para. 124; BVerfGE 142, 353 <371 Rn. 39>), in principle also has the aim of avoiding abuse of law (see also Senate resolution of February 26, 2020 - L 4 AY 14/19 B ER -, juris). However, this legitimate regulatory goal is limited by the fact that the welfare state principle also requires state provision and care for those who are hindered in their personal and social development due to personal weakness or guilt, inability or social disadvantage; The resulting obligation to ensure the subsistence minimum cannot be relativized in order to achieve other goals (BVerfG ibid., para. 120; see also BVerfGE 132, 134 <173 para. 95>). In the area of migration, the legislature must also be aware that the right under Article 1, Paragraph 1 in conjunction with Article 20, Paragraph 1 of the Basic Law applies to every person, regardless of their nationality, who “resides” within the scope of the Basic Law (BVerfGE 132 , 134 <159 para. 63>) or “lives” in Germany (BVerfGE 40,121 <133>). As long as the German state accepts, accommodates or even just tolerates people on its territory, they are also entitled to benefits (Kirchhof, NZS 2015, 1 <4>); The status-independence of the protection of human dignity is therefore also manifested in the independence of the residence status (Schreiber, SR 2018, 181 <182 f.>). Because of this level of protection intended by the fundamental right, the legislature may neither reduce or withhold benefits solely because of the illegality of the stay below the constitutionally recognized need, nor for supposedly general preventive or repressive reasons in order to restrict migration.
Even if a distinction must be made between the constitutional requirements for cooperation obligations and the restriction of benefits as a sanction (cf. BVerfG ibid. para. 123 ff. on the one hand and para. 129 ff. on the other hand), the strict proportionality requirements for the restriction of benefits as developed by the Federal Constitutional Court ( BVerfG ibid., Rn. 129 ff.) indirectly defines the range of obligations to act or refrain from acting. Reductions in benefits are only proportionate if the reduction in benefits is proportionate to the burden on those affected, taking into account its suitability for achieving this purpose and as the mildest, equally suitable means. This presupposes that those affected are actually able to avert the reduction in state benefits through their own reasonable behavior and to regain the benefit that secures their existence. The requirements of Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1 GG are therefore only met if the services necessary to cover all essential needs are available to those in need and it is their own responsibility to do so in a reasonable manner To create the conditions for receiving the benefit again even after a reduction (BVerfG ibid. para. 133). These requirements also contradict purely repressive reductions in benefits, in which the person entitled to benefits is not given any option for action in the sense of appropriate behavior in order to avert the sanction.
In the present case, these concerns also apply to Section 1a Paragraph 7 Sentence 1 AsylbLG, which is applicable here. Furthermore, it must be taken into account that with the decision of February 19, 2021 in the form of the objection decision of March 22, 2021, the cash benefits and the ticket for using local public transport will be completely withdrawn and only benefits in kind will be granted. This can therefore be seen as a significant restriction on the socio-cultural subsistence minimum.
In this case, the applicant is obliged to leave the country and therefore has no prospect of remaining in Germany. The applicant also applied for asylum in France. The applicant was threatened with deportation to France. However, this does not justify any other assessment in this case. The applicant's failure to leave the country alone cannot be classified as avoidable personal misconduct (see also SG Oldenburg, decision of February 20, 2020, S 25 AY 3/20 ER, BeckRS 2020, 3170, Rn. 24). The applicant cannot therefore be blamed for not leaving the country. In particular, the executive branch itself can force a person to leave the country by carrying out the deportation. However, the complete reduction in cash requirements and local transport tickets here amounts to a sanction to force people to leave the country (see also Oppermann in: Schlegel/Voelzke, jurisPK-SGB XII, 3rd ed., § 1a AsylbLG [as of: 23. March 2021], paragraph 209). Section 14 AsylbLG also does not allow for permanent benefit restrictions in accordance with Section 1a AsylbLG, but rather provides for a time limit and renewed examination.
Because of the fundamental rights weighting of the benefits, which are intended to ensure the human dignity of the recipient, the interest in enforcement must take second place to the interest in suspension.
The controversial question of whether the norm is to be interpreted constitutionally, with the result that benefits must be granted contrary to the wording in accordance with Section 3 Paragraph 1 AsylbLG (according to the Hesse State Social Court for Section 1a Paragraph 1 Sentence 3 AsylbLG, decision of February 26, 2020 - L 4 AY 14/19 B ER – juris para. 49 ff.; also LSG Hessen, decision of March 31, 2020 – L 4 AY 4/20 B ER for § 1a paragraph 1 and paragraph 2 AsylbLG, BeckRS 2020, 6698 para. 34 ff.) can be left aside in this case, since the norm of Section 1a Paragraph 7 AsylbLG can remain unapplied in this case.
The chamber is not prevented from leaving the norm of Section 1a Paragraph 7 AsylbLG unapplied. In particular, this does not result from the fact that specialized courts are bound by law (Article 20 Paragraph 3 of the Basic Law) or the Federal Constitutional Court's monopoly on rejecting norms (Article 100 Paragraph 1 Sentence 1 of the Basic Law). The specialized courts cannot expand the legal circle of those seeking legal protection without a legal basis. You are therefore prevented from making a claim based on alleged unconstitutional, deficient action by the legislature. On the other hand, the specialized court can protect the person seeking legal protection from interventions by public authorities (or attacks by private third parties) to the extent that this is required by 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 and is not a fait accompli be created.
The specialized courts can therefore grant interim legal protection if they have serious doubts as to whether a norm of ordinary law, which is used by the authority as a basis for authorizing an intervention in the legal sphere of the person concerned, is compatible with the Basic Law. This is the case here.
The cost decision is based on Sections 183 Sentence 1 and 193 SGG in corresponding application. In the present case, it is fair to impose the costs in full on the respondent.
The information on legal remedies follows from Section 172 Paragraph 1 SGG.
Instructions on legal remedies follow.
