DECISION
L 8 AY 11/21 B ER
S 27 AY 4030/20 ER Social Court Hildesheim
In the appeal proceedings
xxx,
– Applicant and Respondent –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
Göttingen District Office, Legal Department,
represented by the District Administrator,
Reinhäuser Landstraße 4, 37083 Göttingen
– Respondent and Appellant –
The 8th Senate of the Lower Saxony-Bremen State Social Court decided on July 27, 2021 in Celle through Judge xxx and Judges xxx and xxx:
The respondent's appeal against the decision of the Hildesheim Social Court of 25 January 2021 is dismissed.
The respondent must also reimburse the applicant's costs for the appeal proceedings.
REASONS
I.
The dispute concerns preliminary legal protection due to a restriction of entitlement under Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) for the period from the beginning of December 2020 to the beginning of March 2021.
The applicant, who claims to have been born in 19xx, entered Germany in May 2015 (together with her mother) after a stay of several months in Russia (Moscow). She identifies herself as an ethnic Armenian of undetermined nationality from Ukraine. She and her mother had fled the Luhansk region due to armed conflict, where they had lived with (indefinite) residence permits. Her mother possessed only a Soviet passport, which she gave to smugglers upon entering Germany. The asylum applications submitted immediately after their arrival – during the asylum proceedings, the applicant and her mother were assigned to the municipality of Hattorf am Harz (since 2017) within the district of the respondent – were rejected by the Federal Office for Migration and Refugees (BAMF) under threat of deportation to the Russian Federation (decision of December 16, 2016). The action brought against this decision before the Administrative Court (VG) Göttingen was unsuccessful (judgment of May 7, 2019 – 4 A 153/18 –), because the applicant and her mother had neither been subjected to persecution or harm relevant to the proceedings before leaving Ukraine and the Russian Federation, nor would such persecution or harm be of any significant probability upon return to the Russian Federation. The court also had no doubt about the Russian nationality of the applicant and her mother as stated in the asylum proceedings. Since the conclusion of the asylum proceedings, the applicant has been granted temporary leave to remain, and since the end of 2019, due to unresolved identity, pursuant to Section 60b of the German Residence Act (AufenthG).
The respondent (Immigration Office) repeatedly requested the applicant and her mother to obtain passports and submit proof of identity – e.g., birth certificates, a copy of the mother's Soviet internal passport, or her marriage certificate – (including in June, August, and November 2019, as well as in October 2020). After the applicant attended the BBS II vocational school in Osterode (vocational school – nursing assistant) during the asylum proceedings and graduated top of her class, earning both the Extended Secondary School Leaving Certificate and a qualification as a state-certified nursing assistant, she applied to the respondent for a temporary suspension of deportation pursuant to Section 60c of the German Residence Act (AufenthG) in order to continue her training as a registered nurse at the University Medical Center Göttingen. An urgent application filed in this context at the end of 2019 was rejected by the Göttingen Administrative Court, among other reasons, on the grounds that the applicant's insufficient cooperation in obtaining a passport or equivalent travel document thus far prevented the enforcement of deportation measures. The applicant cannot simply dismiss the respondent's (Immigration Office's) requests for cooperation by claiming her nationality is unclear, but must make a serious effort to clarify it. Her unsubstantiated claim that she unsuccessfully visited the Russian, Armenian, and Ukrainian embassies in Berlin is insufficient in this regard. The court has no evidence whatsoever to suggest that the applicant would be unable, with serious effort, to obtain substitute travel documents, or at least proof of identity, or to demonstrate a final rejection by the competent authorities. The respondent rejected her application for a temporary residence permit for vocational training in March 2020.
The applicant has been living in a two-room apartment of approximately 54 square meters in Osterode since September 2020, which she moved into with the respondent's assurance. She pays a monthly rent of €260.00, monthly advance payments for utilities and heating of €65.00 each, and monthly electricity bills of €50.00. To secure her livelihood, she receives benefits under the Asylum Seekers' Benefits Act (AsylbLG), which, prior to the preliminary injunction proceedings, were most recently granted until November 2020 pursuant to Section 2 of the AsylbLG by a legally binding decision of the respondent dated August 21, 2020.
By letter dated October 28, 2020, the respondent notified the applicant of a possible restriction of her benefits pursuant to Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) for the period beginning in December 2020. The applicant responded that she and her mother had unsuccessfully visited the embassies of the Russian Federation and Ukraine (in Berlin and Hamburg) as well as Armenia (in Berlin) to clarify her identity. Furthermore, they had, through acquaintances, instructed a woman in Ukraine to apply to the relevant registry office for a copy of the applicant's birth certificate or confirmation of her place of birth and residence. However, the office replied on August 18, 2020, that a birth certificate could not be issued without presentation of a passport.
By decision dated November 20, 2020, the respondent granted the applicant only restricted benefits pursuant to Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) for the period from December 2020 to May 2021, amounting to €619.38 per month. This reduction was achieved by deducting €185.00 from the basic benefits under Section 3a AsylbLG and granting monthly allowances for accommodation, heating, and electricity of €325.00, €58.38, and €50.00, respectively. The applicant had already been informed in the assurance dated July 24, 2020, that the heating cost deductions would not be taken into account in their actual amount (€65.00), but only in a reasonable amount.
On December 3, 2020, the applicant lodged an objection against this and applied to the Social Court (SG) Hildesheim – like her mother due to the restriction of her entitlement imposed (- S 42 AY 4029/20 ER, L 8 AY 20/21 B ER -) – for preliminary legal protection. After the applicant submitted further documents regarding her school attendance and a copy of a library card issued to her in Ukraine – which had already been submitted to the immigration office in 2019 (letter dated January 21, 2021), the Social Court, by way of a preliminary injunction dated January 25, 2021, ordered the respondent to grant the applicant provisionally full, privileged benefits pursuant to Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Book XII of the German Social Code (SGB XII) for the period from December 3, 2020, until a decision is reached on the objection to the decision of November 20, 2020, but no later than June 3, 2021. In its reasoning, the court stated, among other things, that the applicant had not violated her duty to cooperate pursuant to Section 82 Paragraph 3 of the Residence Act (AufenthG). Due to her birth in Ukraine, it was likely that she held either Ukrainian or Armenian citizenship. Because her mother's nationality is unclear, any nationality derived from her cannot be established. The applicant credibly demonstrated concrete steps taken to obtain identity documents, namely visiting the embassies of Ukraine, the Russian Federation, and Armenia, and contacting an acquaintance in Ukraine to apply for a birth certificate at the relevant registry office. She also credibly demonstrated that correspondence with the former school administration was impossible due to the school's destruction. Finally, she provided proof of her identity by submitting her library card.
The respondent filed an appeal on February 22, 2021, alleging a violation of the right to be heard due to the applicant's failure to submit her written pleading of January 21, 2021 (including attachments). He further asserts that the applicant is obstructing the enforcement of deportation measures by concealing her nationality and by failing to cooperate, or providing insufficient cooperation, in obtaining travel documents. The applicant's alleged efforts, such as visiting embassies and attempting to obtain a new birth certificate, are unsubstantiated and undocumented. The response from the competent Ukrainian registry office in August 2020 is merely an informational letter and cannot serve as proof of serious efforts to obtain documents. The applicant was already informed in August 2019 that a library card is insufficient for establishing her identity. The applications for substitute travel documents dated February 14, 2021, were filled out by her and her mother in such a vague and imprecise manner that the Embassy of the Russian Federation – also due to the lack of identity documents – would likely be unable to process them successfully. The applicant's entire conduct was characterized by disclosing as little and as vaguely as possible, creating the impression that obtaining travel documents was impossible. This contradicts the administrative court rulings regarding the applicant's insufficient cooperation in obtaining a passport or substitute travel document.
The applicant considers the decision of the Social Court to be correct and, after the rejection of her objection to the decision of the respondent dated 20 November 2020 by decision on objection dated 2 March 2021, filed a lawsuit with the Social Court.
For further details, reference is made to the contents of the court file and the attached files on benefits (one volume and one folder) and foreigners (one folder).
II.
The appeal, which was filed in due form and time (§ 173 SGG) and is also admissible in all other respects, in particular due to a grievance exceeding €200.00 per month for a period of (at most) six months (§ 172 para. 3 no. 1, §§ 143, 144 para. 1 sentence 1 no. 1 SGG; cf. regarding the determination of the value of the subject matter of the appeal within the meaning of § 144 para. 1 no. 1 SGG in preliminary injunction proceedings concerning ongoing subsistence benefits, Senate decision of December 12, 2016 – L 8 AY 51/16 B ER – juris para. 8), is unfounded. The Social Court correctly ordered the respondent, by way of preliminary injunction, to grant the applicant provisional benefits pursuant to § 2 para. 1 AsylbLG.
Preliminary injunctions are permissible under Section 86b Paragraph 2 Sentence 2 of the Social Court Act (SGG) 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 that a right asserted against the respondent exists (claim for an injunction) and that the applicant would suffer substantial disadvantages without the issuance of the requested injunction (ground for an injunction). Both the sufficient probability of a substantive claim to performance and the urgency of the regulation to avert substantial disadvantages must be substantiated (Section 86b Paragraph 2 Sentence 4 SGG in conjunction with Section 920 Paragraph 2 of the Code of Civil Procedure (ZPO)).
Based on these criteria, the interim order issued by the Social Court is not objectionable.
The disputed legal relationship between the parties, which is subject to a preliminary injunction, concerns the action pending before the Social Court against the respondent's decision of November 20, 2020, as amended by the decision on the objection of March 2, 2021, regarding the granting of benefits restricted under Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) for the period from December 1, 2020, to May 31, 2021. Since (only) the respondent has filed an appeal, the review of the Social Court's preliminary injunction in the appeal proceedings is limited in time to the period from December 5, 2020, "until the decision on the objection to the decision of November 20, 2020," i.e., until March 2, 2021.
During this period, the applicant was entitled to benefits as a person with tolerated stay status under Section 1 Paragraph 1 Number 4 of the Asylum Seekers' Benefits Act (AsylbLG). While tolerated stay under Section 60b of the AsylbLG is not explicitly mentioned in Section 1 Paragraph 1 Number 4 of the AsylbLG, it nevertheless falls under this provision because this tolerated stay is (also) a tolerated stay within the meaning of Section 60a of the Residence Act (AufenthG) "for persons with unclear identity". This follows directly from Section 60b Paragraph 1 Sentence 1 of the Residence Act (Senate Decision of July 9, 2020 – L 8 AY 52/20 B ER – juris para. 22; see also Frerichs in jurisPK-SGB XII, 3rd ed. 2020, Section 1 AsylbLG para. 136; contra Hohm in GK-AsylbLG, as of March 2021, Section 1 AsylbLG paras. 112-113; Leopold in Grube/Wahrendorf/Flint, SGB XII, 7th ed. 2020, Section 1 AsylbLG para. 53).
Based on the current state of facts and legal arguments, and following a summary examination of the facts and the legal situation, the applicant's benefits have been wrongly reduced pursuant to Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG).
According to Section 1a Paragraph 3 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) (as amended on August 15, 2019, Federal Law Gazette I 1294), those entitled to benefits under Section 1 Paragraph 1 Numbers 4 and 5 of the AsylbLG, i.e., persons subject to enforceable deportation with or without tolerated stay, for whom deportation measures cannot be enforced due to reasons attributable to them, only receive benefits in accordance with Section 1a Paragraph 1 of the AsylbLG, starting on the day following the enforceability of a deportation threat or deportation order. This means they are only entitled to significantly reduced benefits; they are not entitled to benefits under Sections 2, 3, and 6 of the AsylbLG. Abuse of benefits within the meaning of Section 1a Paragraph 3 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) includes, in particular, a violation of the obligation stipulated in Section 48 Paragraph 3 of the Residence Act (AufenthG) for a foreigner without a valid passport or passport substitute to cooperate in obtaining an identity document and establishing their identity and nationality (Federal Social Court [BSG], Judgment of May 12, 2017 – B 7 AY 1/16 R – juris para. 15 with further references to the predecessor provision of Section 1a No. 2 AsylbLG aF). A restriction of benefits under Section 1a Paragraph 3 Sentence 1 AsylbLG further requires that the foreigner has engaged in culpable conduct and that this conduct is the cause of the unenforceability of measures terminating their residence. The Federal Social Court has thus far left open the question of whether merely negligent conduct can also fulfill the elements of a restriction of benefits (Federal Social Court [BSG], ibid., para. 17). In addition, the immigration authorities must demonstrate a genuine effort to return the individual to their country of origin (BSG, loc. cit., para. 18 with further references). A problem arises when there is not a single, conditio sine qua non that constitutes the impossibility of terminating the residence, but rather several. In such cases, it must first be determined whose sphere of responsibility these causes fall under. If multiple causes exist for the impossibility of terminating the residence, the benefit recipient may only be held accountable for those reasons for which they are solely responsible. Causes that fall within the sphere of responsibility of the immigration authorities, the country of origin, or the political arena, and which also causally influence the impossibility of terminating the residence, are ineligible for a restriction of benefits. Ultimately, this means that the cause attributable to the benefit recipient must be the sole cause and the one that justifies the restriction of benefits. However, those entitled to benefits are not required to accept any risks that lie outside their sphere of responsibility (Oppermann in jurisPK-SGB XII, 3rd ed. 2020, § 1a para. 86; BSG, judgment of 27.2.2019 – B 7 AY 1/17 R – juris para. 27; regarding the above, most recently Senate decision of 15.7.2021 – L 8 AY 12/21 B ER -).
In interpreting Section 1a of the Asylum Seekers' Benefits Act (AsylbLG), the Senate also takes into account the jurisprudence of the Federal Constitutional Court (BVerfG) regarding the temporary withdrawal of subsistence benefits to enforce cooperation obligations, which is subject to strict proportionality requirements and limits the otherwise broad discretion of the legislature regarding the suitability, necessity, and reasonableness of regulations governing the structure of the welfare state (see Federal Constitutional Court, Judgment of November 5, 2019 – 1 BvL 7/16 – juris 132-134; see also Senate Decision of December 4, 2019 – L 8 AY 36/19 B ER – juris para. 6 et seq.; most recently, Saxon State Social Court, Decision of March 3, 2021 – L 8 AY 8/20 B ER – juris para. 58 et seq.). To avoid a potential violation of Article 1 Paragraph 1 of the Basic Law in conjunction with Article 20 Paragraph 1 of the Basic Law, Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) must be interpreted restrictively in such a way that a restriction of benefits is only permissible in cases where the factual prerequisites are clearly met. Only in these cases does the question arise—which the Senate has not yet answered—as to whether the legal consequence of a restriction of benefits under Section 1a Paragraph 1 Sentence 2 of the AsylbLG (in terms of amount) can even meet constitutional requirements (cf. Saxon State Social Court, loc. cit.).
As things stand, there is overwhelming evidence to suggest that the applicant has culpably failed to comply with her obligations to cooperate in the immigration proceedings.
According to Section 48 Paragraph 3 of the Residence Act, a foreigner who does not possess a valid passport or passport substitute is obliged to cooperate in obtaining identity documents and to present, hand over and surrender to the authorities entrusted with the execution of this law, upon request, all documents, other records and data carriers that may be relevant for establishing his identity and nationality and for determining and asserting a possibility of return to another state and in whose possession he is According to administrative court rulings, foreigners are therefore obligated not only to submit the required documents and appear in person at the foreign mission of their home country, but also, if the identity document is not issued within a reasonable time, to regularly inquire about its status, ask about the reasons for the processing time, and persistently request the issuance of the document (see Higher Administrative Court of Berlin-Brandenburg, judgment of October 16, 2018 – OVG 3 B 4.18 – juris para. 22; Administrative Court of Munich, decision of September 5, 2018 – M 25 S 18.2249 – juris para. 17; Administrative Court of Hamburg, judgment of November 2, 2010 – 8 K 1605/10 – juris para. 20). However, the immigration authority must have specifically updated its legal obligations to cooperate with the individual concerned, e.g., regarding the procurement of identity documents (§ 48 para. 3 of the Residence Act), in order to be able to draw negative consequences under residence law from a lack of cooperation (Federal Administrative Court, judgment of October 26, 2010 – 1 C 18/09 – juris para. 17; Social Court Munich, decision of January 31, 2017 – S 51 AY 122/16 ER – juris para. 40). Furthermore, § 82 para. 3 sentence 1 of the Residence Act imposes an obligation on the immigration authority to provide information, as it generally has better contacts and knowledge regarding the existing possibilities for obtaining travel documents (Higher Administrative Court Berlin-Brandenburg, judgment of February 21, 2017 – OVG 3 B 14.16 – juris para. 24 with further references). These principles are to be applied to the assessment of conduct relevant to benefit entitlements under Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG), however, with the proviso of a restrictive interpretation relating to clear and persistent violations of obligations to cooperate under immigration law (see, for example, Senate decision of June 6, 2019 – L 8 AY 17/19 B ER –; Oppermann in jurisPK-SGB XII, 3rd edition 2020, Section 1a, marginal note 133). A restriction of benefits due to the effects of the benefit reduction is only conceivable if the authority assigns an applicant a specific, achievable, and reasonable act of cooperation, which the applicant fails to perform due to circumstances for which they are responsible. The unenforceability of deportation measures must be based on circumstances attributable to the responsible person (Oppermann in jurisPK-SGB XII, 3rd ed. 2020, § 1a AsylbLG para. 85 with further references). This requires a comprehensive, specific assessment of the individual case (Oppermann, ibid., § 1a AsylbLG para. 89). The decisive factor is whether the foreigner's misconduct was solely caused by one factor or whether a complete failure of the state ("powerlessness of the state") at least contributed to this situation (Oppermann, ibid., § 1a para. 189).
In accordance with the decision of the Göttingen Administrative Court of February 6, 2020 (- 1 B 349/19 -; p. 4 of the decision), the applicant likely failed to cooperate adequately in obtaining a passport or equivalent travel document during the period in question, even though the respondent's immigration office repeatedly and unambiguously reminded her of her obligations to cooperate in this matter (including on June 27, July 2, August 13 and 30, November 28, 2019, and subsequently when issuing a temporary suspension of deportation for persons with unclear identity pursuant to Section 60b of the Residence Act). Serious efforts to clarify her identity and obtain meaningful documents have (still) not been demonstrated. This applies to the alleged attempt to obtain a birth certificate from the competent registry office in Ukraine through an authorized – unnamed – woman. The respondent correctly pointed out that the letter from the Central Office for Civil Registry Affairs (…) dated August 18, 2020, submitted by the applicant and her mother, is merely an information sheet and does not document a corresponding application. The (alleged) visits to the embassy also do not sufficiently demonstrate that the applicant undertook all possible steps to clarify her identity and obtain the necessary documents. The applicant's and her mother's assertion in the already decided parallel proceedings (decision of June 24, 2021 – L 8 AY 20/21 B ER –) that they themselves did not know their nationality and therefore had not provided any information on this matter in the previous immigration proceedings appears to be a pretext, given their circumstances in Ukraine – allegedly with legal residence due to a residence permit (held by the mother), securing their livelihood through employment, and the applicant's (regular) school attendance. The claim that the applicant (and her mother) would be unable to provide any (conclusive) evidence of her identity under these circumstances is not credible. Her lack of cooperation in the immigration proceedings was, with sufficient certainty, also the (sole) reason why measures to terminate her residency could not be taken against her.
Unlike in her mother's case, there are serious doubts as to whether the restriction of the claim under Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) due to a lack of cooperation in obtaining passport and/or substitute passport documents is (specifically) intended to terminate the applicant's residence, i.e., whether the immigration office demonstrated a sufficiently serious and consistent effort to return the applicant to her home country (regarding this requirement, see Federal Social Court (BSG), judgment of May 12, 2017 – B 7 AY 1/16 R – juris para. 18 with further references). The legal proceedings concerning the issuance of a work permit or a training permit under Section 60c of the Residence Act (AufenthG) (see decision of the Göttingen Administrative Court of February 6, 2020 – 1 B 349/19 –, p. 5) and the immigration office's file shown demonstrate that terminating the applicant's residence is not, or was not, the primary objective. On the contrary, if the passport requirement is met and the other legal requirements are fulfilled, a residence permit could be granted under Section 25a of the Residence Act or Section 18a of the Residence Act, because the applicant had already completed vocational training in Germany during the asylum proceedings. Furthermore, the granting of a temporary suspension of deportation for the purpose of vocational training would be conceivable (see the notes from the immigration office dated December 13, 2019, and January 6, 2020). Under these circumstances, a restriction of benefits under Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act is, with a high degree of probability, not justified in this specific case. Reductions in benefits are only proportionate if the burdens placed on the affected individuals are also commensurate with the actual achievement of the legitimate aim (see Federal Constitutional Court, Judgment of November 5, 2019 – 1 BvL 7/16 – juris para. 133).
The applicant was (still) entitled to analogous benefits pursuant to Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Book XII of the German Social Code (SGB XII) for the period from December 3, 2020, to March 2, 2021, because she had already resided in Germany for more than 15 months without significant interruption and there was (still) no indication of an abuse of rights influencing the length of her stay in Germany. According to the circumstances of the individual case, the nature, extent, and consequences of the breach of duty (within the meaning of Section 48 Paragraph 3 of the Residence Act (AufenthG)) are not so serious as to carry considerable weight, even within the framework of the principle of proportionality. Only conduct that is inexcusable (socially unacceptable) when considering the individual case, the specific situation of a foreigner in the Federal Republic of Germany, and the particular characteristics of the Asylum Seekers' Benefits Act (AsylbLG) can lead to the exclusion of analogous benefits (see Federal Social Court, judgment of June 17, 2008 – B 8/9b AY 1/07 R – juris para. 33). In this context, it must also be considered that the applicant is likely in a particularly difficult situation: cooperation in the immigration proceedings could, on the one hand, serve her continued stay in Germany, but on the other hand, facilitate the deportation of her mother. Furthermore, it is quite possible that the applicant depends on information and assistance from her mother, but is not receiving it.
The decision on costs is based on § 193 SGG.
This decision is final and cannot be appealed, § 177 SGG.
