VERDICT
S 42 AY 249/19
In the legal dispute
xxx,
– Plaintiff –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
City of Göttingen,
represented by the Mayor,
Hiroshimaplatz 1-4, 37083 Göttingen
– Defendant –
The 42nd Chamber of the Social Court of Hildesheim, without oral proceedings pursuant to Section 124 Paragraph 2 of the Social Courts Act (SGG), rendered the following judgment on May 7, 2021, through Judge xxx of the Social Court and the lay judges xxx and xxx:
- The defendant is ordered, by amending the decision of September 19, 2019 as modified by the appeal decision of December 19, 2018, to grant the plaintiff privileged benefits for October 2019 in accordance with Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with the Social Code Book XII (SGB XII) by analogy.
- The defendant must reimburse the plaintiff for his extrajudicial costs.
- The appeal is not admitted.
FACTS
The plaintiff seeks the granting of 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) – Social Assistance – analogously for October 2019.
The plaintiff, who according to his own statement was born on [date redacted], entered Italy from Libya in April 2009 as a Somali national. From there, he traveled to Norway in December 2010 and was deported back to Italy in October 2012. He was granted international protection in Italy under the name [name redacted]. He returned to Norway in August 2013, entered Germany on June 30, 2016, and filed an asylum application on July 5, 2016, under the name [name redacted]. The plaintiff is housed in municipal accommodation and has been granted temporary residence for the duration of the asylum proceedings. During the period in question, he had neither usable income nor realizable assets.
The Federal Office for Migration and Refugees rejected the asylum application as inadmissible in a decision dated November 22, 2017, on the grounds that the plaintiff had already been granted international protection in Italy as part of the asylum procedure. The Göttingen Administrative Court dismissed the action brought against this decision in a judgment dated October 15, 2018 (3 A 745/17).
The defendant granted the plaintiff provisionally privileged benefits for October 2019 by decision of September 19, 2019, based on a preliminary injunction issued by the State Social Court (LSG) of Lower Saxony-Bremen on September 12, 2019 – L 8 AY 12/19 B ER –.
The plaintiff filed an objection on September 30, 2019, arguing that the different names given were not causally related to the duration of his stay in Germany.
The defendant rejected the objection with a notice of objection dated December 19, 2019, stating as grounds that the benefits had been granted subject to the decision in the main proceedings.
The plaintiff filed a lawsuit on December 29, 2019.
He argues:
The plaintiff is entitled to privileged benefits. Alternatively, the defendant is obligated to continue providing the basic benefits, despite the failure to publish the update in the Federal Law Gazette.
The plaintiff requests that
the defendant, by amending the decision of September 19, 2019, as modified by the appeal decision of December 19, 2019, be ordered to grant him the requested benefits in the statutory amount for the period of October, taking into account the legal opinion of the court.
The defendant requests that
the action be dismissed.
She submits, with reference to the issued decisions:
Changes to the benefit rates under Section 3, paragraphs 1 and 2 of the Asylum Seekers' Benefits Act (AsylbLG) are reserved exclusively for the legislature. The defendant must adhere to the principle of legality in administration and observe the reservation of law. Due to the identity fraud, the plaintiff is not entitled to privileged benefits.
The parties unanimously waived their right to an oral hearing.
Regarding the further submissions of the parties, reference is made to the contents of the court file and the administrative files and foreigner file included in parallel proceedings.
REASONS FOR DECISION
The lawsuit is successful.
The chamber was able to decide the legal dispute without an oral hearing because the parties had waived this right in accordance with Section 124 Paragraph 2 of the Social Court Act (SGG).
The defendant's decision of September 19, 2019, as amended by the decision on the objection of December 19, 2019, proves to be unlawful and infringes the plaintiff's own rights.
The plaintiff, who during the period in dispute held a residence permit pursuant to Section 55 of the Asylum Act and was therefore entitled to benefits pursuant to Section 1 Paragraph 1 No. 1 of the Asylum Seekers' Benefits Act, is single and actually residing in the federal territory, and is entitled to privileged benefits pursuant to Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act during the period in dispute (October 2019), because he had completed the 15-month prior residence or waiting period and, in the opinion of the Chamber, did not influence the duration of his stay in the federal territory himself.
When assessing whether there has been an abuse of rights, the entire duration of the stay in Germany must be considered (see Grube/Wahrendorf, Commentary on the German Social Code, Book XII and the Asylum Seekers' Benefits Act, 5th edition 2014, § 2 AsylbLG, para. 22; Hohm, in: Schellhorn/Schellhorn/Hohm, Commentary on the German Social Code, Book XII and the Asylum Seekers' Benefits Act, 19th edition 2015, § 2 AsylbLG, para. 20 with further references). The examination of abusive conduct is a legally preclusive (preventive) element of the offense (see Federal Social Court judgment of February 8, 2007 – B 9b AY 1/06 R –).
According to the rulings of the Federal Social Court (BSG) of June 17, 2008 (B 8/9b AS 1/07 R and B 8 AY 9/07 R) and February 2, 2010 (B 8 AY 1/08 R), an abuse of rights is committed by anyone who, beyond simply failing to leave the country, behaves in a socially unacceptable manner, taking into account the individual circumstances. Both objective and subjective elements must be considered. Intent is required with regard to an action that influences the length of stay, with the aim of influencing that length of stay. The mere failure to leave voluntarily, despite reasonableness, is insufficient, departing from previous case law (cf. the BSG ruling of February 8, 2007 – B 9b AY 1/06 R). The Lower Saxony-Bremen State Social Court had already ruled in its judgment of December 20, 2005 – L 7 AY 40/05 – that exploiting a temporary suspension of deportation was not an abuse of rights and that further conduct was required.
Furthermore, the Federal Social Court (BSG) does not require, as an element of the offense, that the disapproved conduct be causally related to the duration of the stay, but rather adopts an abstract and general approach. Accordingly, the abuse need not be currently ongoing or have a continuing effect. An exception is formulated for cases where measures to terminate the stay cannot be carried out for the entire duration of the stay for reasons beyond the recipient's control. Thus, in the case of a permanent obstacle to enforcement that is independent of the foreigner's conduct, there is an exception to this standardized approach.
According to the cited case law of the Federal Social Court (BSG), the foreigner's conduct must be objectively dishonest and disapproved of by the legal system. The benefit recipient may not invoke a circumstance that they themselves brought about in bad faith. In this context, the breach of duty must carry considerable weight within the framework of the principle of proportionality, taking into account the individual case. Only conduct that is inexcusable and thus socially unacceptable, considering the specific circumstances of the case, the foreigner's particular situation in the Federal Republic of Germany, and the specific characteristics of the Asylum Seekers' Benefits Act (AsylbLG), should lead to the exclusion of privileged benefits (see also Cantzler, Handkommentar zum AsylbLG, 1st edition 2019, § 2, para. 38). According to the case law of the BSG, even a single instance of conduct can have this legal consequence. Abusive conduct cannot be remedied by subsequent integration.
The explanatory memorandum to the law cites, among other things, the provision of a false identity or the destruction of a passport as an example (Bundestag printed matter 15/420, page 121). The Federal Social Court (BSG) recognizes as an exception that such conduct constitutes a reaction to or preventive measure against objectively foreseeable misconduct by the state in which asylum is sought. Furthermore, in its judgment of June 17, 2008 (B 8/9b AY 1/07), the BSG also cites the refusal to cooperate in obtaining a replacement passport as grounds for an abuse of rights, provided that a legal provision exists for such cooperation.
On the subjective side, according to the cited highest court rulings, the accusation of abusive self-influence regarding the duration of stay in the federal territory requires intent.
Based on the foregoing, the court is convinced that there was no abuse of rights that could have influenced the duration of the plaintiff's stay in Germany. The plaintiff completed asylum proceedings in other countries under a different identity. It cannot be proven that there was also identity fraud with respect to the German authorities. The defendant – who bears the burden of proof and presentation regarding the alleged abuse of rights – cannot, in the court's view, prove beyond a reasonable doubt that the identity used by the plaintiff upon entry into Germany is incorrect. A past instance of deception, which occurred outside Germany without any discernible impact on the duration of the stay and was not capable of doing so, is not relevant to the current statements. The court concurs with the decision of the Lower Saxony-Bremen State Social Court of September 12, 2019 – L 8 AY 12/19 B ER.
The decision on costs follows from Section 193 Paragraph 1 of the Social Court Act (SGG).
Pursuant to Section 144, Paragraph 1, Sentence 1, No. 1, and Paragraph 2 of the Social Court Act (SGG), the appeal requires leave to appeal because the defendant's claim is below the threshold of €750. Leave to appeal is denied because the case is not of fundamental importance and does not deviate from, nor is it based on, a decision of the Higher Social Court, the Federal Social Court, the Joint Senate of the Highest Courts, or the Federal Constitutional Court.
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