DECISION
In the appeal proceedings
xxx,
Applicant and respondent,
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
Kassel District, represented by the District Committee,
– Department of Supervision and Public Order –,
Wilhelmshöher Allee 19 – 21, 34117 Kassel,
Respondent and appellant,
The 4th Senate of the Hessian State Social Court in Darmstadt decided on July 26, 2021, through the presiding judge of the State Social Court xxx, the judge of the State Social Court xxx and the judge of the State Social Court xxx:
Upon the respondent's appeal, the decision of the Kassel Social Court of May 5, 2021, amended to the effect that the interim injunction is limited to the time limits stipulated in the ruling until September 30, 2021, at the latest. The appeal is otherwise dismissed.
The respondent must also reimburse the applicant's extrajudicial costs for the appeal proceedings.
REASONS
The respondent's appeal, received on June 4, 2021, with the corresponding request,
the decision of the Social Court of Kassel of May 5, 2021 and to reject the application for an interim injunction,
is permissible, but only justified to a very limited extent.
The Social Court correctly ordered the suspensive effect of the objection and essentially rightly issued the interim injunction; only the time limit was formulated in such a way that it might extend beyond the subject matter of the dispute with regard to the duration of the benefit; in this respect, the time limit of the approval until 30 September 2021 in the decision of 30 March 2021 had to be taken into account as a cut-off point.
The Social Court correctly interpreted the application as a combination of an application for an order suspending the effect of the objection and an application for a preliminary injunction (for details, see Senate decision of January 10, 2019 – L 4 AY 11/18 B ER – with further references). Pursuant to Section 11 Paragraph 4 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Section 86a Paragraph 2 No. 4 of the Social Courts Act (SGG), the applicant's objection does not have suspensive effect.
Pursuant to Section 86b Paragraph 1 Sentence 1 No. 2 of the Social Court Act (SGG), the court of first instance may, in cases where an objection or appeal does not have suspensive effect, order the suspension of the decision in whole or in part. The balancing of interests required when deciding on the suspension of the decision pursuant to Section 86 Paragraph 1 SGG must encompass all public and private interests that are relevant in the individual case. The prospects of success on the merits, i.e., the legality or illegality of the administrative act, are of considerable importance insofar as they can be assessed within the scope of the summary review required in preliminary injunction proceedings (cf. regarding the detailed, and somewhat controversial, standard for ordering suspensive effect: Hessian State Social Court, decision of March 26, 2007 – L 9 AS 387/07 ER – and Keller, in: Meyer-Ladewig et al., SGG – Commentary, 13th ed. 2020, § 86b para. 12 et seq.). In particular, suspensive effect must be ordered without further ado if the decision is manifestly unlawful (and the objection or action is admissible), whereas it is precluded if it is manifestly lawful (or the objection or action is manifestly inadmissible). The greater the prospects of success, the lower the requirements for the interest in suspension. As part of this assessment, the evaluation derived from the statutory order for immediate enforcement must also be taken into account. In particular, if the prospects of success are uncertain, a comprehensive balancing of consequences must take place, within which the fundamental rights of those affected must be considered, insofar as they are impacted by the decision.
Measured against this standard, there are sufficient doubts as to the legality of the determination of the restriction of claims, which leads to the ordering of the suspensive effect.
The requirements of Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) are not met with sufficient certainty. According to this provision, those entitled to benefits under Section 1 Paragraph 1 Numbers 4 and 5, for whom deportation cannot be carried out for reasons attributable to them, receive only benefits in accordance with Paragraph 1 on the day following the enforceability of a deportation threat or deportation order. The provision requires a causal link between culpable conduct and the non-enforcement (Federal Social Court, Judgment of October 30, 2013 – B 7 AY 7/12 R –, BSGE 114, 302-310, SozR 4-3520 § 1a No. 1, cited according to juris Rn. 25).
However, the refusal to cooperate in obtaining a passport through a consulate of the Islamic Republic of Iran is not reprehensible. If the requests to the applicant are understood realistically as meaning that he should do everything necessary on his part to obtain a passport or a document authorizing entry into Iran from the Iranian consulate, then the applicant is being asked to behave in a way that infringes upon his right to privacy as an inviolable core area of the right to personality under Article 2 Paragraph 1 in conjunction with Article 1 Paragraph 1 of the Basic Law (cf. regarding the inviolability of a core area: BVerfGE 34, 238 <245>; 54, 143 <146>; 103, 21 <31>). According to the Senate's understanding, Iranian nationals are required to submit a so-called declaration of voluntariness when applying (see also the Senate judgment of July 22, 2020 – L 4 AY 8/17 – juris, which is known to the parties involved). The German Federal Foreign Office stated the following in its situation reports of February 27, 2011, Ref: 508-516.80/3 IRN, p. 43, and of October 8, 2012, Ref: 508-516.80/3 IRN, pp. 38-39 (cited according to asylis): “German travel documents or EU repatriation documents are not recognized by the border authorities. The Iranian authorities insist that a repatriation document be issued by the competent Iranian diplomatic mission. These missions, in turn, have instructions to issue a passport to any Iranian who appears before them and voluntarily applies for one. This also applies to persons who have applied for asylum abroad. Iranian diplomatic missions in Germany generally only issue repatriation documents if the person concerned has appeared in person and indicated that they are returning to Iran voluntarily. Furthermore, unequivocal proof of Iranian asylum seekers is required.” Nationality is required.” Regarding more recent periods, the Bayreuth Administrative Court, in its judgment of December 11, 2018 – BK 18.696 – (juris), assumed that the situation remained unchanged. The Federal Government still assumed a corresponding “fundamental stance on the part of Iran” in August 2019 (Bundestag printed matter 19/12640, p. 23). This understanding is not fundamentally called into question, at least not under the standard of proof in preliminary injunction proceedings, by the fact that, according to the latest situation report, a “declaration of regret” relating to illegal departure from the Islamic Republic of Iran is now required (Federal Foreign Office, Report on the Asylum and Deportation-Relevant Situation in the Islamic Republic of Iran of February 5, 2021, Ref: 508-516.80/3 IRN, p. 25). Furthermore, the information submitted by the respondent in his letter of July 13, 2021, on the consulate's homepage (pp. 91 to 93 of the file), which does not list such declarations, is not capable of casting doubt on the other findings, since it cannot be expected that such a text reflects the actual practice of the consulate.
According to the case file, the applicant refuses any cooperation in obtaining a passport, which also implies a refusal to leave the country voluntarily. Voluntariness, both according to the general understanding of the term and considering the specific circumstances of the case (cf. BSG, loc. cit., para. 27 et seq.), can only mean that the applicant should declare that he is traveling to Iran of his own free will. However, this declaration cannot be demanded of anyone who does not possess the corresponding will; otherwise, he would be forced to lie. The concept of voluntariness defies further consideration. What is required is a declaration of wanting something he does not actually want. Nor can a contrary will be demanded of him; will as such is not subject to state influence. A different question is whether certain actions can be demanded of the person concerned despite a contrary will. Coercion to also want such actions would correspond to a totalitarian understanding of the state, which is alien to the Basic Law (BSG, loc. cit., para. 28).
Should a “declaration of remorse” now be required, the same would apply.
Since the conditions for a variant of Section 1a AsylbLG are not met with sufficient certainty, it can remain open whether the Social Court correctly interpreted the legal consequence of Section 1a AsylbLG in a manner consistent with the constitution.
Furthermore, the claim and grounds for an interim injunction have been substantiated.
Pursuant to Section 86b Paragraph 2 Sentences 1 and 2 of the Social Court Procedure Act (SGG), the court of first instance 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 realization of a right of the applicant. 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. A prerequisite for issuing a preliminary injunction is therefore that the applicant has a substantive legal claim in the main proceedings (claim for an injunction) and that it is unreasonable to expect them to await the decision in the main proceedings (ground for an injunction). Pursuant to Section 86b Paragraph 2 Sentence 4 of the SGG in conjunction with Section 920 Paragraph 2 of the Code of Civil Procedure (ZPO), the claim for an injunction and the ground for the injunction must be substantiated.
These requirements must be specified in light of the guarantee of effective legal protection under Article 19 Paragraph 4 of the Basic Law (GG) (see, for example, Federal Constitutional Court, Decision of August 6, 2014 – 1 BvR 1453/12 –, juris, para. 10 with further references). The more serious the threatened violation of fundamental rights and the higher its probability of occurrence, the more intensive the factual and legal analysis of the matter must be, even in preliminary injunction proceedings. If a clarification of the factual and legal situation corresponding to the threatened violation of fundamental rights is not possible in expedited proceedings – for example, because it would require further factual investigations that cannot be carried out in the short time available – it is constitutionally permissible for the decision on granting preliminary injunction to then be based on a balancing of interests. However, if the preliminary injunction proceedings completely assume the significance of the main proceedings and there is a risk of the parties' fundamental rights being permanently prevented from being exercised, the courts must, when setting the requirements for establishing prima facie evidence to justify benefits for subsistence in preliminary injunction proceedings, take into account the significance of the fundamental right under Article 1 Paragraph 1 of the Basic Law in conjunction with Article 20 Paragraph 1 of the Basic Law. The requirements for establishing prima facie evidence must be oriented towards the legal protection objective pursued by the respective legal claim.
A claim for an injunction exists; since the requirements of Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) are not met with sufficient certainty, the applicant is entitled to full benefits. It should be clarified that these benefits are to be calculated based on the decision pursuant to Sections 3 and 3a of the AsylbLG, which the applicant has not contested, as the Social Court evidently assumed that this level of benefits could also be achieved through a constitutionally compliant interpretation of the legal consequences of Section 1a of the AsylbLG. The Social Court thus apparently assumed that access to benefits under Section 2 of the AsylbLG was blocked or that such benefits had not been applied for. Furthermore, the Social Court did not dismiss the application in all other respects; according to the grounds for its decision, it is of the opinion that it has fully granted the applicant's request. For this reason, a higher benefit based on Section 2 of the AsylbLG cannot be assumed, especially since, based on the current state of affairs, there is no indication that this was claimed out of court or with the application for preliminary relief. The application is based primarily on the unconstitutionality of the reduced benefit level. This request is met by a preliminary injunction granting the full benefit level as defined in Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG).
Regarding the further requirements for issuing an interim injunction, reference is made to the grounds of the contested decision (§ 142 para. 2 sentence 3 SGG).
However, the ruling by the Social Court (“…by way of preliminary injunction, obligated to grant the applicant full benefits under the Asylum Seekers' Benefits Act at the statutory rate from April 7, 2021, provisionally until the conclusion of the objection proceedings and, if an action is filed in due time, until the conclusion of the main proceedings at first instance.”) had to be further limited in time such that the provision of benefits does not extend beyond the stipulated benefit period. The stipulation of a benefit period creates a break in the proceedings, which accordingly limits the subject matter of the dispute (cf. generally Senate decision of April 14, 2021 – L 4 AY 3/21 B ER – juris para. 22; Federal Social Court, decision of July 30, 2008 – B 14 AS 7/08 B – juris). Both the restriction of entitlement and the granting of benefits are limited in the decision of March 30, 2021, to the period from April 1, 2021, to September 30, 2021. It was therefore impossible that, particularly in the event of legal action, the validity of the preliminary injunction would extend beyond September 30, 2021.
The decision on costs is based on a corresponding application of Section 193 of the Social Court Act (SGG). The respondent's success was not so significant as to warrant an apportionment of costs.
This decision is not subject to appeal pursuant to Section 177 of the Social Court Act (SGG).
