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 July 6, 2021, through its presiding judge, Judge xxx:
The suspensive effect of the objection of 15 March 2021 against the decision of 3 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.
The applicant was born in Bissau on xxx 1989, is a Senegalese national according to his own statements and first entered the federal territory on January 17, 2020, with the request to be granted asylum.
By decision dated March 5, 2020, the Federal Office for Migration and Refugees rejected the applicant's applications for refugee status, asylum, and subsidiary protection as manifestly unfounded and ordered him to leave the country (see pp. 57-67 of the immigration file). The subsequent preliminary injunction proceedings before the Administrative Court of Gießen were unsuccessful.
Since the applicant stated that he no longer had any identity documents, the Gießen Regional Council (foreigners' authority) requested the applicant by letter dated December 18, 2020, to cooperate in obtaining a passport (pp. 62-63 of the court file).
By decision dated February 7, 2020, the respondent granted the applicant benefits pursuant to Section 3 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG). Most recently, the respondent granted benefits under the AsylbLG in the form of the amended decision dated January 27, 2021, as follows: cash benefits in the amount of €123.00, as well as benefits in kind in the form of a combined 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, and the necessary needs for food, accommodation, healthcare, and household goods and consumables as benefits in kind.
By letter dated February 5, 2021, the respondent notified the applicant of the intended restriction of his entitlement pursuant to Section 1a of the Asylum Seekers' Benefits Act (AsylbLG). The applicant stated on February 25, 2021, that he no longer had any relatives in his home country and could no longer receive support from there in obtaining his documents.
By decision dated March 3, 2021, the respondent, revoking the amending decision of January 27, 2021, and applying the restrictions on entitlement pursuant to Section 1a Paragraph 3 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG), granted the applicant, effective immediately, only benefits to cover the need for food and accommodation, including heating, personal hygiene, and healthcare. These benefits would be provided in kind. The reduction amount included the benefits granted in the decision of January 27, 2021, totaling €146.00. This amount comprised the cash allowance of €123.00 and the public transport ticket provided as a benefit in kind, valued at €23.00.
The applicant filed an objection to this decision by letter dated March 15, 2021. Furthermore, on the same day, the applicant submitted an application for preliminary legal protection.
The applicant argues that, according to the decision of the Federal Constitutional Court of November 5, 2019, file number 1 BvL 7/16, the sanction at issue here cannot be constitutional. A balancing of interests must be undertaken in this case, which can only lead to the suspension of the benefit reductions 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 in any event.
The applicant requests verbatim that
the respondent be ordered, by way of an interim injunction, to grant the respondent provisionally and subject to the right of recovery until a final and binding decision is reached on the applicant's objection of March 15, 2021, against the respondent's decision of March 3, 2021, taking into account the legal opinion of the court, the requested benefits in the statutory amount from the date of receipt of this application by the court.
The respondent requests that
the application be rejected.
The respondent argues that the restriction of benefits was lawful. The restriction is based on the fact that deportation measures cannot be carried out for reasons attributable to the applicant himself. The applicant belongs to the group of persons defined in Section 1a, Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG). Due to the lack of any identification documents, deportation measures cannot be carried out against him. Even though the applicant no longer has any relatives in his home country, he is not prevented from applying to the Senegalese embassy for the issuance of such documents. The lack of identification documents is the sole reason for preventing his transfer. Therefore, there are no factual or legal reasons preventing his departure, as the applicant is not at fault. Flights to Senegal are currently possible and are being operated. Regarding the constitutionality of Section 1a of the Asylum Seekers' Benefits Act, the respondent argues that he is bound by law. The Federal Constitutional Court holds the sole power to rule on such matters. Services for transportation and communication are not essential for a basic socio-cultural existence. There is no additional need in this regard. In particular, the applicant has access to free Wi-Fi at the initial reception center in Neustadt. Travel expenses are reimbursed for individual trips to appointments with authorities. Should specific needs arise regarding the use of communication services, these can be requested from the responsible social workers on site.
The court obtained the defendant's administrative file as well as the file of the immigration office (foreigner's file). The contents of these files were considered in the decision-making process.
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 February 7, 2020, as amended by the decision of January 27, 2021, the respondent issued an administrative act with continuing effect from the perspective of an objective recipient (see Oppermann/Filges, in: Schlegel/Voelzke, jurisPK-SGB XII, 3rd ed., § 2 AsylbLG [as of January 5, 2021], para. 265). The decision of February 7 does not provide for the granting of benefits for only a single month, nor does it limit the duration of the decision. The amending decision of January 27, 2021, provides for an adjustment of the benefit amount effective January 1, 2021, and thus, from the perspective of an objective recipient, for an indefinite period. Further support for interpreting the decision as a continuing administrative act is the fact that both the initial grant notice of February 7, 2020, and the amendment notice of January 27, 2021, included benefit calculations for the month of application as well as for subsequent months in their calculation sheets, which are integral parts of the respective notices. The respondent revoked these benefits with a notice dated March 3, 2021. Therefore, the continuing administrative act is effectively revived by the order granting suspensive effect. Consequently, a separate preliminary order for payment is not required in this case. When interpreted in light of the most-favored-nation principle, it is clear from the applicant's request that at least a stay of execution is also being sought, as this is the only way to achieve the applicant's objective.
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 an injunction outweighs the respondent's interest in enforcement. The suspensive effect of the objection to the decision of March 3, 2021, was to be ordered after summary review, since the decision reduces the benefits to be granted to the applicant below the constitutionally required level (see also Higher Social Court of Hesse, decision of February 26, 2020 – L 4 AY 14/19 B ER. Juris, para. 7 et seq.).
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 15, 2021 against the decision of the respondent of March 3, 2021 was therefore to be ordered.
Although the legislator generally assumes that the interest in enforcement prevails in this case, based on the provision of Section 11 Paragraph 4 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG), there are significant reservations regarding the legality of the decision of March 3, 2021. In any event, the disadvantages facing the applicant if immediate enforcement is not ordered are considerably more serious 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 3 of the Asylum Seekers' Benefits Act (AsylbLG).
The respondent's decision of February 7, 2020, as amended by the decision of January 27, 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 March 3, 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 3 of the Asylum Seekers' Benefits Act (AsylbLG), those entitled to benefits under Section 1, Paragraph 1, Numbers 4 and 5 of the AsylbLG, for whom deportation cannot be carried out for reasons attributable to themselves, receive only benefits in accordance with Paragraph 1 from the day following the enforceability of a deportation threat or deportation order. According to Paragraph 1, until their departure or deportation is carried out, they are only granted benefits to cover their needs for food and accommodation, including heating, as well as personal and healthcare. Only if special circumstances exist in an individual case can they also be granted other benefits within the meaning of Section 3, Paragraph 1, Sentence 1. The benefits are to be provided in kind. However, the provision of Section 1a, Paragraph 3 of the AsylbLG raises constitutional concerns.
The applicant falls under the category of persons defined in Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG). He has been granted tolerated stay status.
Enforcement is also not possible for reasons attributable to the applicant himself.
The restriction under Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) applies if measures to terminate residency cannot be enforced for reasons attributable to the applicant. This includes all legal and factual actions necessary to bring about the foreigner's departure (see Wahrendorf, in: Grube/Wahrendorf, SGB XII 5th edition 2014, Section 1a AsylbLG, marginal note 22 et seq. with further references). For the applicant to be held responsible, it is sufficient that the unenforceability of the measures to terminate residency is based on circumstances that fall within the sphere of responsibility of the person acting (see Oppermann in: Schlegel/Voelzke, jurisPK-SGB XII, 3rd edition, Section 1a AsylbLG marginal note 85 [as of February 1, 2020], with further references); conversely, an affected person is not responsible for contributing factors outside their sphere of responsibility. The misconduct must therefore be monocausal (cf. regarding an older version of the law Federal Social Court, judgment of 27 February 2019 – B 7 AY 1/17 R –, juris para. 27).
These conditions are met here. The applicant, who is subject to deportation, has failed to cooperate in obtaining replacement passport documents, despite this obligation arising from Section 48 Paragraph 3 of the Residence Act (AufenthG) and despite being requested to do so by the respondent, who pointed out the legal consequences. The applicant is thus preventing his deportation. Without passport documents, the respondent cannot terminate the applicant's stay. The mere assertion that he no longer has any relatives in his home country is insufficient to fulfill his duty to cooperate (see Social Court Landshut, Decision of August 10, 2016 – S 11 AY 69/16 ER, BeckRS 2016, 71688, beck-online). It is not apparent that the applicant contacted his still-living relatives in Senegal, the Koranic school he attended, or the Senegalese embassy or consulate to obtain a passport.
However, the legal consequence in this case requires a constitutional interpretation in the specific individual case.
The Hessian State Social Court has already ruled that, with regard to Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG), the legal consequences of this provision require a constitutionally compliant interpretation due to constitutional concerns. The Hessian State Social Court stated the following in this regard (decision of February 26, 2020 – L 4 AY 14/19 B ER):
"However, the legal consequence of Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG), which now results uniformly from Section 1a Paragraph 1 of the AsylbLG following the amendment, requires a constitutionally compliant interpretation. Insofar as Section 1a Paragraph 1 Sentences 2 and 3 of the AsylbLG generally limit the entitlement to covering the needs for food and accommodation, including heating, as well as personal hygiene and healthcare, and only provide for further benefits in exceptional cases under special circumstances, an interpretation that, as a rule, results in a shortfall in the subsistence minimum, particularly in the area of social participation, would be unconstitutional, as it does not meet the strict proportionality requirements for such a shortfall (a). However, the hardship provision of Section 1a Paragraph 1 Sentence 3 of the AsylbLG, due to its needs-based legal consequence according to its wording, is amenable to a constitutionally compliant interpretation such that the additional benefits provided for in Sections 3, 3a, and 6 of the AsylbLG are to be granted, albeit not as a lump sum, but only on a case-by-case basis." then, if this is required according to the applicant's needs (b)
Based on this case law, which the Chamber endorses, the defendant's decision of March 3, 2021, is at least partially unlawful. In this case, the respondent has completely reduced the applicant's benefits. While the applicant has not yet demonstrated a specific need, meaning that a final assessment of whether the administrative act should be adjusted is not currently possible, a need in the areas of communication and mobility is evident, particularly given the need to assist in obtaining a passport and potentially organizing departure (see also the Hessian State Social Court, decision of February 26, 2020 – L 4 AY 14/19 B ER, p. 18: "[In the case of a departure even in the medium term,] needs for transportation and communication must be assumed for organizing the departure."). The Chamber finds the respondent's argument that communication via free Wi-Fi in the accommodation and internet telephony is sufficient unconvincing. This is particularly true since communication with authorities or legal counsel cannot necessarily take place via internet telephony. The presiding judge also considers the respondent's assertion that travel expenses for individual trips, such as those to government offices, could be claimed separately to be insufficient and unreasonable. Due to the particular fundamental rights implications of the reductions in subsistence benefits, the applicant's interest in a stay of execution outweighs the respondent's interest in enforcement. The respondent's interest in realizing a potential claim for reimbursement must take a back seat.
No other consequence arises from the constitutional doubts surrounding the norm. While the Federal Constitutional Court holds the monopoly on declaring norms unconstitutional (Article 100, Paragraph 1, Sentence 1 of the Basic Law), and therefore the lower courts cannot expand the legal sphere of those seeking legal protection without a statutory basis, they 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, and provided that no irreversible facts are created. The lower 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 affected party's legal sphere, 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.
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