DECISION
In the legal dispute
1. xxx,
2. xxx,
residing at: xxx
– Applicant –
Regarding points 1 and 2, the legal representative is:
Law firm
Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
Eichsfeld District,
represented by the District Administrator,
Friedensplatz 8, 37308 Heilbad Heiligenstadt
– Respondent –
The 15th Chamber of the Social Court of Nordhausen, through its presiding judge, Judge xxx, decided without oral proceedings on July 12, 2021:
The respondent is ordered by way of preliminary injunction to grant the applicants, provisionally subject to the right of recovery, the requested benefits of standard benefit level 2 pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act for the period from January 1, 2021 to February 28, 2021, in full.
The respondent shall bear the applicant's necessary extrajudicial costs.
REASONS
I.
Following the partial settlement declaration, the married applicants still request the granting of higher benefits under the Asylum Seekers' Benefits Act for the period from January 1, 2021 to February 28, 2021.
According to the applicants, they entered Italy in June 2015. One month later, they applied for asylum there. In March 2017, they were granted refugee protection. According to the respondent's immigration office, their corresponding Italian residence permits expired on March 22, 2019. The applicants stated that they traveled from Italy to the Netherlands. From there, they were sent back to Italy. However, they went to Germany to submit another asylum application. They entered Germany with their children on February 1, 2018, according to their own statements. Further children were born in Germany after their entry. They received benefits under the Asylum Seekers' Benefits Act from March 2018. At the end of June 2019, the applicants were apprehended by the Federal Police at the Dutch border. They were in possession of a Dutch certificate stating that they were registered as asylum seekers in the Netherlands. The applicants were subsequently deregistered as of June 30, 2019, with their whereabouts unknown. From January 9, 2020, they were again residing at the initial reception center in Suhl.
On April 19, 2020, the applicants submitted another asylum application.
By decision dated June 7, 2018, the Federal Office for Migration and Refugees rejected the applicants' applications as inadmissible. No grounds for prohibition of deportation existed under Section 60, paragraphs 5 and 7, sentence 1 of the Residence Act. The applicants were ordered to leave the Federal Republic of Germany within 30 days of notification of this decision. Should they fail to comply with the departure deadline, they would be deported to Italy. The applicants could not be deported to Nigeria. The applicants had already submitted asylum applications in Italy. As part of the asylum procedure, they had been granted international protection within the meaning of Section 1, paragraph 1, number 2 of the Asylum Act by this Member State of the European Union in March 2017.
In a letter dated December 1, 2020, the respondent notified the applicants of the intended reduction in benefits. The asylum applications had been rejected as inadmissible because they had lawful international protection status in Italy. Therefore, a reduction in benefits pursuant to Section 1a Paragraph 4 in conjunction with Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) was intended to take effect on January 1, 2021. According to Section 1a Paragraph 4 of the AsylbLG, those 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 pursuant to Section 29 Paragraph 1 Number 1 in conjunction with Section 31 Paragraph 6 of the Asylum Act and for whom deportation has been ordered pursuant to Section 34a Paragraph 1 Sentence 1, second alternative, of the Asylum Act, receive only benefits in accordance with Paragraph 1, even if the decision is not yet legally binding. Paragraph 1 does not apply if a court has ordered the suspension of the deportation order. In the event of a possible reduction in benefits, the cash benefits for the parents would generally be reduced to the minimum. All necessary personal services would be withdrawn. If actual costs for necessary personal services are unavoidable, these costs can be submitted with appropriate justification.
By decision of the respondent dated December 17, 2020, the respondent granted the applicants benefits under the Asylum Seekers' Benefits Act in the amount of €1,387.00 per month for the period from January 1, 2021, to June 30, 2021. These were reduced benefits pursuant to Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act, as they possessed international protection status in Italy. The entire allowance for necessary personal expenses was withdrawn because the applicants had not demonstrated which of the described departments were required. The reduction was limited to six months and would be reviewed thereafter. The necessary expenses were calculated in accordance with Section 3a Paragraph 2 of the Asylum Seekers' Benefits Act. The calculation is shown in the attached calculation sheet.
By letter from their legal representative dated December 19, 2020, the applicants filed an objection to the respondent's decision of December 17, 2020. They argued that the reduction of benefits under Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) was unlawful. They asserted that concerns already existed with regard to the principle of equal treatment. The persons named in Section 1a Paragraphs 1-3 of the AsylbLG were being accused of specific, self-inflicted misconduct under immigration law, to which the benefit restrictions were linked. Furthermore, they argued that the reduction was unconstitutional in light of the Federal Constitutional Court's decision of November 5, 2018. With the exception of leaving the country, the applicants had no other means of preventing the sanction.
According to a notification from the law firm Waldmann-Stocker to the applicants' representative dated February 3, 2021, the firm represents the applicants before the Federal Office for Migration and Refugees (BAMF) and the responsible immigration authority. Their asylum proceedings are ongoing. There is currently no deportation threat or order that could be enforced. They last had a detailed interview with the BAMF in October. Since then, the BAMF has not made a decision on the merits of their case, so until such a decision is reached, no return, whether to their country of origin or to Italy, is permissible.
By decision dated March 25, 2021, the respondent recalculated the applicants' entitlement pursuant to Section 48 Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X), effective March 1, 2021. The Thuringian State Administrative Office had informed the respondent that deportation to the EU member state of Italy, where the applicants held international protection status, was no longer possible. The reduction in benefits pursuant to Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) was therefore lifted. The applicants had entered the Federal Republic of Germany on February 1, 2018. The requirements for a change in benefits from Section 3 to Section 2 of the AsylbLG were not met. They had gone into hiding and were thus deregistered from Germany between June 30, 2019, and March 12, 2020. They had therefore interrupted their substantial residence in Germany and abusively prolonged their stay. During this period, no measures to terminate their residence could be taken. They remained recipients of benefits under Section 3 in conjunction with Section 3a of the Asylum Seekers' Benefits Act. The decision revokes all previous decisions regarding the granting of assistance under the Asylum Seekers' Benefits Act, insofar as it relates to the same periods.
The applicants, through their legal representative, filed a request for preliminary legal protection on December 20, 2020, with the Nordhausen Social Court on the same day. They argued that they had a right to an injunction. The imposed sanction was unlawful. The legal basis for the sanction was incompatible with the Federal Constitutional Court's ruling on sanctions for benefits under Book II of the German Social Code (SGB II). Therefore, at least in the context of weighing the consequences, the benefit reduction should be suspended until the outcome of the main proceedings. Furthermore, the reduction of the standard benefit by more than 50% was incompatible with Article 1 of the Basic Law (German Constitution). They argued that they had a right to an injunction because their subsistence minimum was no longer guaranteed. If subsistence-level benefits were unavailable, grounds for an injunction could generally be assumed. The applicants were not required to provide evidence that the denied subsistence minimum was actually necessary. The standard benefit should be paid as a lump sum. Even the basic allowance under the German Social Code, Book II (SGB II), is constitutionally borderline in terms of what is still suitable to meet constitutional requirements. Therefore, even the standard allowance level 1 under the Asylum Seekers' Benefits Act is constitutionally questionable. This applies all the more to the reduction that has been implemented. It should be noted that, contrary to the respondent's view, the applicants cannot be deported.
The applicants request that
the respondent be ordered by way of an interim injunction to grant the applicants, provisionally subject to the right of recovery until a final and binding decision is reached on the applicants' objection of December 19, 2020 against the respondent's decision of December 17, 2020, the requested benefit pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act for the months of January and February 2021, taking into account the legal opinion of the court.
The respondent requests that
the application for an interim injunction be rejected.
The applicants have a right of residence in Italy. For those entitled to benefits under Section 1 Paragraph 1 Number 1 or Section 1a of the Asylum Seekers' Benefits Act (AsylbLG), who have already been granted international protection or a right of residence for other reasons by another EU member state or a third country participating in the distribution mechanism within the meaning of sentence 1, a reduction in benefits applies if the international protection or the right of residence granted for other reasons continues. This is the case here. The decision complies with the legislative requirements. During the hearing, the applicants were given the opportunity to demonstrate a specific personal need to be taken into account when granting benefits. No such information was provided. The current total reduction for the applicants amounts to €292 (2 x €146). This corresponds to a percentage of 18% of the benefit amount paid out, which totaled €1292. Voluntary departure or forced transfer to Italy was possible until December 21, 2020. Deportation dates will resume on January 1, 2021. Both voluntary departure to Italy and forced transfer are possible. Currently, a transfer to Italy is likely being prevented by the refusal of the Italian authorities. It is unknown whether and to what extent the competent authorities are pursuing a conciliation procedure with Italy pursuant to Articles 7 and 15 of the EU Convention on the Civil Aspects of International Displacement.
By letter dated March 30, 2021, the applicants declared the legal dispute partially settled for the period beginning March 1, 2021. The respondent concurred with this declaration of partial settlement by letter dated April 20, 2021.
For further details of the facts and the legal arguments, reference is made to the court file of the present proceedings and the administrative files of the respondent.
II.
Unless the proceedings have been declared settled by mutual agreement, the application is admissible and well-founded.
Pursuant to Section 86b Paragraph 2 Sentence 1 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 state of affairs could frustrate or significantly impede the applicant's exercise of a right (so-called protective injunction). Such an injunction is intended to prevent a change in the existing state of affairs. It serves to preserve the status quo by imposing an injunction on the party to be obligated. 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 (Section 86b Paragraph 2 Sentence 2 SGG; so-called regulatory injunction). The granting of preliminary legal protection requires a claim to an injunction, i.e., a substantive legal claim to the performance to which the respondent is to be obligated, as well as grounds for the injunction, namely the urgency of the legal protection. The claim for an injunction relates to the asserted substantive claim for which preliminary legal protection is sought. The required urgency concerns the grounds for the injunction. The facts that are intended to establish the grounds for the injunction and the claim for the injunction must be presented and substantiated (Section 86b Paragraph 2 Sentence 4 in conjunction with Section 920 Paragraph 2 of the German Code of Civil Procedure). The purpose of preliminary legal protection is to safeguard the capacity to decide and the procedural situation in order to enable the final realization of the law in the main proceedings. It aims solely to protect a future or present procedural legal position from developments that override its time, solely due to the time dimension of legal recognition and enforcement in the main proceedings, and to prevent irreparable consequences and the creation of irreversible facts that cannot be reversed even if the contested administrative decision subsequently proves to be unlawful. In contrast, preliminary legal protection proceedings are not intended to circumvent the court responsible for the main proceedings and to expedite the realization of asserted substantive legal positions. When interpreting and applying the provisions governing preliminary legal protection, the courts are obligated to consider the particular importance of the fundamental rights affected and the requirements of effective legal protection. The guarantee of effective legal protection under Article 19 Paragraph 4 of the Basic Law generally requires the possibility of expedited proceedings if, without them, the affected party faces a significant infringement of their rights that extends beyond marginal issues and cannot be remedied by a decision on the merits (see Federal Constitutional Court decision of October 25, 1999 – 2 BvR 745/88 – BVerfGE 79, 69, 74; decision of May 16, 1995 – 1 BvR 1087/91 – BVerfGE 93, 1, 14). In principle, court decisions may be based on both a balancing of consequences and a summary examination of the prospects of success in the main proceedings.
In the present case, these requirements are met.
The necessary grounds for an injunction exist in the present case, as the benefits sought by the applicants are for securing their livelihood. Although the periods of benefit in dispute are now in the past, the application for preliminary legal protection was filed before these periods, so the duration of the extensive investigations and legal review cannot be to the detriment of the applicants.
The applicants are also entitled to an order.
In the present case, it is irrelevant whether the provisions of Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) are constitutional and whether a return or deportation to Italy is reasonable. The reduction in benefits imposed by the respondent is, in fact, contrary to fundamental rights for another reason, so that full benefits can be claimed.
It is undisputed between the parties that the applicants are, in principle, eligible for benefits under Sections 3 and 3a in conjunction with Section 1 of the Asylum Seekers' Benefits Act (AsylbLG). Analogous benefits under Section 2 of the AsylbLG were not claimed in the application. Furthermore, the court is not convinced that the applicants' eligibility for benefits is sufficient, at least within the framework of these preliminary legal proceedings, due to their unknown whereabouts for several months.
However, the conditions for the reduction of these benefits under Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG), which is the only claim made in this case and probably also the only one that could be considered, are not met. According to this sentence, persons entitled to benefits under Section 1 Paragraph 1 Number 1, 1a or 5, for whom, in deviation from the standard jurisdiction under Regulation (EU) No. 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in a Member State by a third-country national or stateless person (OJ L 180, 29.6.2013, p. 31), another Member State or a third country participating in the distribution mechanism and applying Regulation (EU) No. 604/2013 is responsible following a distribution by the European Union, only receive benefits in accordance with Section 1a Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG). According to sentence 2, this applies accordingly to beneficiaries under Section 1 paragraph 1 number 1 or 1 a AsylbLG who have already been granted international protection or a right of residence for other reasons by another Member State of the European Union or by a third country participating in the distribution mechanism, if the international protection or the right of residence granted for other reasons continues to exist.
Contrary to the respondent's assertion, this second sentence is not applicable to the applicants. In the applicants' case, the international protection granted to them in Italy no longer applies for the benefit period claimed here, namely January 2021 and February 2021. According to the respondent's file, this protection was limited to March 2019 and therefore had already expired during the benefit period in dispute. The applicants have neither alleged nor proven that Italy extended their international protection. The respondent has not presented any other grounds for reducing the benefits.
An inadmissible prejudgment of the main issue due to the provisional nature of the interim injunction is not present in light of Article 19 Paragraph 4 of the Basic Law. The principle of effective legal protection requires, in the present case—also due to the clear legal situation—that the requested benefits be granted (cf. Federal Constitutional Court, decisions of November 22, 2002 – 1 BvR 1586/02 –, juris and of May 12, 2005 – 1 BvR 569/05 juris).
The decision on costs follows from § 193 SGG.
The following is information on legal remedies.
