DECISION
In the legal dispute
xxx,
Applicant,
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,
The 11th Chamber of the Social Court of Kassel decided on May 5, 2021, through Judge xxx as Chairwoman of the Social Court:
The suspensive effect of the applicant's objection of 6 April 2021 against the respondent's decision of 30 March 2021 is ordered.
The respondent is ordered by way of preliminary injunction to grant the applicant full benefits under the Asylum Seekers' Benefits Act in the statutory amount from 7 April 2021 on a provisional basis until the conclusion of the objection proceedings and, if an action is brought in due time, until the conclusion of the main proceedings in the first instance.
The respondent shall bear the applicant's necessary extrajudicial costs.
REASONS
I.
The applicant seeks, by way of preliminary legal protection, the granting of full benefits under the Asylum Seekers' Benefits Act (AsylbLG).
The applicant, born in Iran on [date redacted], entered the Federal Republic of Germany on February 26, 2001, and submitted an asylum application on March 5, 2001. In March 2001, he was assigned to the city of Kassel. Since then, he has lived in Kassel or the Kassel district. The applicant's asylum application was initially rejected by a legally binding decision of the Higher Administrative Court of Kassel on December 22, 2004. The deportation threatened with the rejected asylum decision was never carried out. Measures to terminate his residence could not be taken because the applicant lacked a passport. The renewed application for asylum, submitted in March 2010, was rejected by a legally binding decision of the Administrative Court of Kassel on March 23, 2016. From the outset, the applicant has only been granted temporary tolerated stay permits (suspension of deportation). Currently, the applicant holds a tolerated stay permit pursuant to Section 60b of the Residence Act, which is valid until June 4, 2021. For years, the applicant has received only reduced benefits from the respondent under Section 1a of the Asylum Seekers' Benefits Act (AsylbLG). The respondent has held hearings regarding this matter annually. Most recently, in a letter dated February 16, 2021, the respondent informed the applicant that he had been notified of his obligation to leave the country by legally binding decisions of the Federal Office for Migration and Refugees (BAMF). In the applicant's case, deportation measures could not be enforced due to reasons attributable to him. He had been repeatedly requested by the Kassel City and Kassel District Citizens' Offices to apply for a passport. The applicant had been informed of his corresponding obligations under Section 60b Paragraph 2 Sentence 1 of the Residence Act (AufenthG) each time. In his case, the offense of abuse under Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) exists, as the intended deportation measures could not be enforced due to the applicant's conduct.
By decision dated March 30, 2021, the respondent informed the applicant that he would be granted benefits pursuant to Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Section 1a Paragraph 1 Sentences 2-4 of the AsylbLG from April 1, 2021, to September 30, 2021. The respondent stated that the applicant's case constituted abuse of the benefits under Section 1a Paragraph 3 of the AsylbLG, as intended deportation measures could not be carried out due to his conduct. He had previously been repeatedly requested by the Kassel City and District Citizens' Office to apply for a passport. To date, no cooperation from him has been evident. Despite the COVID-19 pandemic, the Iranian Consulate General remained open, allowing the applicant to contact it. Obtaining the necessary travel documents for his return home was solely the applicant's responsibility. The extent of the restriction on benefit entitlement is determined according to Section 1a Paragraph 3 in conjunction with Section 1a Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG). Accordingly, if the substantive requirements are met, eligible individuals would not receive benefits under Sections 2, 3, and 6 of the AsylbLG, but only benefits to cover their needs for food and accommodation, including heating, as well as personal hygiene and healthcare, and benefits under Section 4 of the AsylbLG. In addition to accommodation costs of €160, the respondent granted benefits under Section 1a of the AsylbLG in the amount of €192 from April 2021 onwards, plus a supplement for household energy and apartment maintenance of €37.82, totaling €389.82 per month.
The applicant's legal representative filed an objection to this on April 6, 2021.
In a letter received by the Kassel Social Court on April 7, 2021, the applicant's legal representative filed an application for preliminary legal protection seeking the granting of full benefits under the Asylum Seekers' Benefits Act (AsylbLG). The applicant argues that, according to the decision of the Federal Constitutional Court of November 5, 2019 (1 BvL 7/16), the sanction in dispute cannot be constitutional. Numerous decisions have since been issued on this issue. Reference is made to a decision of the Lower Saxony-Bremen State Social Court (PKH) of December 4, 2019, case number L 8 AY 36/19 BER. Furthermore, in a decision of February 22, 2021, the Saxony State Social Court, in case number L 8 AY 9/20 BER, stated that the provision in Section 1a Paragraph 1 Sentence 2 of the AsylbLG contradicts constitutional requirements. While the court cannot itself reject Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) due to doubts about its constitutionality, a judicial decision must be made in light of the questions raised in the preliminary injunction proceedings, weighing the consequences. According to existing court decisions, this can only lead to the suspension of the benefit reduction, initially and until the outcome of the main proceedings. This is all the more true since a reduction of the standard benefit by more than 50% is incompatible with Article 1 of the Basic Law (GG). The applicant's constitutionally guaranteed minimum subsistence level is currently no longer secure. In such a case, grounds for an injunction within the meaning of Section 86 Paragraph 2 Sentence 2 of the Social Court Act (SGG) must regularly be assumed.
The applicant essentially requests that
the respondent be ordered, by way of an interim injunction, to grant the applicant the requested benefits in the statutory amount from the date of receipt of this application by the court, pending a final and binding decision on the applicant's objection of 6 April 2021 against the respondent's decision of 30 March 2021, taking into account the legal opinion of the court.
The respondent requests that
the application be rejected.
The respondent argues that there is no ground for an injunction. The applicant receives restricted benefits pursuant to Section 1a, paragraphs 1 and 3 of the Asylum Seekers' Benefits Act (AsylbLG) because he persistently refuses to obtain a passport as required by Section 60b, paragraph 3 of the Residence Act (AufenthG). In the respondent's view, the reduction in benefits mandated by law pursuant to Section 1a AsylbLG cannot, at least in cases of subjectively justifiable refusal to perform reasonable acts of cooperation, lead to an unconstitutional restriction of the fundamental right to a dignified minimum standard of living. Furthermore, the respondent's responsible department maintains that it is bound by the disputed legal provision unless the supervisory authority (RP) issues a contrary directive. The court is therefore requested to render a decision.
For further details, including the submissions of the parties, reference is made to the contents of the court file and the administrative files submitted by the respondent.
II.
Pursuant to Section 86b Paragraph 1 of the Social Courts Act (SGG), the court of first instance may, upon application, order the suspension of enforcement in whole or in part in cases where the objection (or the action for annulment) does not have suspensive effect. Furthermore, the issuance of a preliminary injunction to regulate a provisional state of affairs with regard to a disputed legal relationship is permissible under Section 86b Paragraph 2 Sentence 2 SGG if such regulation appears necessary to avert substantial disadvantages. A prerequisite for issuing a preliminary injunction is always that both a ground for the injunction (i.e., the urgency of the regulation to avert substantial disadvantages) and a claim for the injunction (i.e., the sufficient probability of a substantive claim to benefits) are substantiated (cf. Section 86b Paragraph 2 Sentence 4 SGG in conjunction with Section 920 Paragraph 2 of the Code of Civil Procedure – ZPO). As a general rule, due to the provisional nature of an interim injunction, the final decision in the main proceedings should not be anticipated. Because of the requirement to grant effective legal protection (cf. Art. 19 para. 4 Basic Law – GG), a deviation from this principle is only warranted if, without the requested injunction, serious or unreasonable disadvantages would arise that cannot be remedied later and which a subsequent decision in the main proceedings would no longer be able to eliminate (cf. BVerfG 79, 69 74 with further references). Insofar as a complete clarification of the factual and legal situation is not possible for the court in such expedited proceedings, a decision must be made based on a balancing of interests (cf. Federal Constitutional Court, decisions of 12 May 2005 – 1 BvR 569/05, para. 19, 26 and of 25 February 2009 – 1 BvR 120/09, para. 11, each cited according to juris).
Against this background, the applicant's motion is admissible and well-founded from the date of its receipt by the court on April 7, 2021, as formulated in the operative part of this decision. With regard to both the determination of the suspensive effect of the applicant's objection of April 6, 2021, against the respondent's decision of March 30, 2021, and with regard to the respondent's obligation to provisionally grant the applicant full benefits under the Asylum Seekers' Benefits Act (AsylbLG), the adjudicating chamber relies on a decision of the Hessian State Social Court of February 26, 2020, in proceedings L 4 AY 14/19 B ER.
In a comparable case involving a benefit recipient whose benefits were reduced in accordance with Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) due to a lack of passport procurement and an existing obligation to leave the country, the Hessian State Social Court justified both the order for the suspensive effect of the objection against the decision on the benefit reduction and the provisional obligation of the benefit authority to grant full benefits with the necessity of a constitutionally compliant interpretation of Section 1a AsylbLG in the aforementioned decision.
The court initially deemed a combination of decisions under Section 86b Paragraph 1 and Section 86b Paragraph 2 of the Social Court Act (SGG) necessary for the judicial decision to be made, because the objection to a restriction of the benefit entitlement under Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) does not have suspensive effect pursuant to Section 11 Paragraph 4 Number 2 of the AsylbLG. However, the applicant's request for legal protection can only be effectively and constitutionally addressed by combining the restoration of the suspensive effect of the objection under Section 86b Paragraph 1 of the SGG with the respondent's obligation to provisionally grant full benefits under the AsylbLG.
It is undisputed that the applicant falls within the group of persons affected by a reduction in benefits pursuant to Section 1a of the Asylum Seekers' Benefits Act (AsylbLG), because, despite an enforceable obligation to leave the country, measures terminating his residence in the sense of deportation cannot be carried out against the applicant, as he has not yet cooperated in obtaining the necessary passport from the Iranian consular representation and cannot be deported to his country of origin, Iran (cf. the provisions of Section 1a, paragraphs 1 and 3 of the Asylum Seekers' Benefits Act (AsylbLG) in the version applicable from September 1, 2019).
In the aforementioned decision, the Hessian State Social Court affirmed the factual prerequisites for a reduction in benefits under Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) for a benefit recipient obligated to leave the country who fails to cooperate in obtaining a passport. However, for the legal consequence of Section 1a Paragraph 3 AsylbLG (in its revised version pursuant to Section 1a Paragraph 1 AsylbLG), the court deemed a constitutionally compliant interpretation essential, based on the ruling of the Federal Constitutional Court of November 5, 2019 (1 BvL 7/16). In doing so, it initially declared the constitutional justification for a reduction in benefits independent of need to have failed (HLSG, decision of February 26, 2020, loc. cit.). It is further demanded that the legal consequence of Section 1 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) with regard to benefit reductions must meet the requirements for needs-based differentiation in accordance with the Federal Constitutional Court's ruling of November 5, 2019 (1 BvL 7/16). The Hessian State Social Court (HLSG) stated that if the legislature intends to consider the specific circumstances of certain groups of people when determining the minimum subsistence level, it may not differentiate across the board based on residency status when designing subsistence-level benefits. Differentiation is only permissible if the needs of these groups for essential subsistence benefits differ significantly from those of other people in need, and this can be logically demonstrated in a transparent procedure based on the actual needs of that specific group. The HLSG sees justification for a benefit reduction only for individuals who regularly stay in Germany for only short periods and for whom this short-term nature can be determined at the beginning of their stay based on a prognosis. However, these considerations regarding a (projected) short-term stay do not apply to the applicant, who has lived in Germany for more than 20 years. The Higher Social Court (HLSG) further explains that reductions in benefits cannot be justified, in particular, by arguing that only benefits for social participation are being withdrawn and that a "core area" remains. Referring to the Federal Constitutional Court's judgment of November 5, 2019 (1 BvL 7/16, juris, para. 119), the HLSG considers the applicant's physical and socio-cultural existence to be uniformly protected by Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1 of the Basic Law. In this context, the HLSG criticizes the fact that the recipient of reduced benefits in accordance with Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) cannot benefit from the lump-sum benefit model of Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) and Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) and is referred to the registration of individual needs, particularly in the area of socio-cultural existence. The decision of the Higher Social Court (HLSG) therefore also emphasizes that the complete exclusion of benefits for necessary personal needs under Section 3 Paragraph 1 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG) from the hardship clause, which, according to its wording, results in the failure to cover the needs of the socio-cultural subsistence minimum, was already criticized as unconstitutional before the Federal Constitutional Court's ruling of November 5, 2019, and the necessity of a constitutionally compliant interpretation had been demanded (see also Federal Social Court, judgment of May 12, 2017, B 7 AY 1/16 R, juris, para. 35 regarding the predecessor regulation and decision of the Higher Social Court of May 31, 2019, L 4 AY 7/19 BER, juris, para. 39, each with further references).
Based on the statements made by the HLSG in the aforementioned decision, which the adjudicating chamber follows, a summary review of the benefit reduction to which the applicant has already been subjected for several years reveals the constitutional concerns regarding the disputed benefit reduction that were also formulated by the HLSG. The Saxon State Social Court has also stated in three decisions this year (see decision of January 11, 2021, L 8 AY 10/20 BER, decision of February 22, 2021, L 8 AY 9/20 BER and decision of March 3, 2021, L 8 AY 8/20 BER, all cited according to juris) that the provision in Section 1 Paragraph 1 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG) contradicts the constitutional requirements mentioned in the judgment of the Federal Constitutional Court of November 5, 2019 (1 BvL 7/16, cited according to juris, e.g., para. 120). The Saxon State Social Court points out that the reduction under Section 1a AsylbLG deprives a foreigner affected by the benefit restriction of approximately 50% of their monthly standard allowance. The Federal Constitutional Court has declared the sanction provisions in the German Social Code, Book II (SGB II), unconstitutional if they exceed the 30% reduction in benefits even for repeated breaches of obligations. It deemed reductions of up to 60% unacceptable and unconstitutional.
Particularly in light of the years of benefit reductions and the applicant's current life situation, the court also has significant doubts about the constitutionality of at least the current benefit reduction. Therefore, in weighing the consequences, the applicant cannot reasonably be expected to accept a further restriction of his entitlements, at least within the framework of granting preliminary legal protection, and the respondent must be ordered to grant him full benefits under the Asylum Seekers' Benefits Act (AsylbLG) on a provisional basis.
Grounds for an injunction exist. Urgency is present, even though the applicant has already been receiving reduced benefits for many years. The sole decisive factor is that the current reductions do not meet the aforementioned constitutional requirements and thus fail to guarantee the applicant's dignified minimum standard of living.
The decision on costs follows from the corresponding application of Section 193 of the Social Court Act (SGG).
The following is information on legal remedies.
See also:
Hessian State Social Court – Decision of 26 July 2021 – Case No.: L 4 AY 19/21 B ER
