DECISION
L 8 AY 11/21 B ER
S 27 AY 4030/20 ER Hildesheim Social Court
In the complaint process
xxx,
– Applicant and Respondent –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
Göttingen District Office for Legal Affairs,
represented by the District Administrator,
Reinhäuser Landstraße 4, 37083 Göttingen
– respondent and complainant –
The 8th Senate of the Lower Saxony-Bremen State Social Court decided on July 27, 2021 in Celle by Judge xxx and Judges xxx and xxx:
The respondent's complaint against the decision of the Hildesheim Social Court of January 25, 2021 is rejected.
The respondent must also reimburse the applicant’s costs for the appeal procedure.
REASONS
I
The dispute is for urgent legal protection due to a limitation of claims according to Section 1a Paragraph 3 AsylbLG for the period from the beginning of December 2020 to the beginning of March 2021.
The applicant, who says she was born in 19xx, entered Germany in May 2015 (together with her mother) after a stay of several months in Russia (Moscow) and claims to be an Armenian of unknown nationality from Ukraine. Because of armed conflict, she and her mother fled the Luhansk region, where they lived with (permanent) residence permits. Her mother only had a Soviet passport, which she gave to smugglers when she entered Germany. The asylum applications submitted immediately after entry - during the asylum procedure, the applicant and her mother were assigned to the municipality of Hattorf am Harz, which has been located in the respondent's district area (since 2017) - were accepted by the Federal Office for Migration and Refugees (BAMF) under threat of deportation to the Russian Federation rejected (decision dated December 16, 2016). The lawsuit brought against this at the Administrative Court (VG) Göttingen was unsuccessful (judgment of May 7, 2019 - 4 A 153/18 -) because the applicant and her mother did not face persecution relevant to the proceedings before leaving Ukraine or the Russian Federation had been subjected to such persecution or concern and would still have a considerable probability of fearing such persecution or concern if they returned to the Russian Federation. The court also had no doubts about the Russian nationality of the applicant and her mother as stated in the asylum procedure. The applicant has had a tolerated stay since the end of the asylum procedure, and since the end of 2019 due to unclear identity in accordance with Section 60b of the Residence Act.
The respondent (foreigners office) asked the applicant and her mother several times to obtain a passport and to submit proof of identity - e.g. birth certificates, a copy of the Soviet domestic passport or the mother's marriage certificate - (including in June, August and November 2019 as well as in October 2020). . After the applicant attended the BBS II in Osterode (vocational school - nursing assistant) during the asylum procedure and was the best in her class, obtaining the extended secondary qualification I and a qualification as a state-certified nursing assistant, she applied to the respondent for a toleration in accordance with Section 60c of the Residence Act in order to receive training To be able to continue as a health and nursing assistant at the University Medical Center Göttingen. The Göttingen Administrative Court rejected an urgent application submitted in this context at the end of 2019 on the grounds, among other things, that the implementation of measures to terminate the stay was hindered by the applicant's previously insufficient cooperation in obtaining a passport or a replacement passport document. In response to requests from the respondent (the immigration office) to cooperate, she cannot simply resort to the fact that her nationality is unclear, but must make serious efforts to clarify it. The unsubstantiated claim that he unsuccessfully visited the Russian, Armenian and Ukrainian embassies in Berlin is not enough. The court has no evidence whatsoever that it is not possible for the applicant, if she makes serious efforts, to obtain replacement passport papers, or at least proof of identity, or to prove that the relevant authorities have definitively rejected her claim. The respondent rejected the application for the issuance of a training toleration in March 2020.
Since September 2020, the applicant has lived in an approximately 54 sqm two-room apartment in Osterode, which she moved into with the respondent's assurances, for which she has to pay monthly rent of €260.00 and advance payments for additional costs and heating costs of €65.00 per month as well as electricity discounts must be paid in the amount of €50.00 per month. To secure her livelihood, she receives benefits in accordance with the AsylbLG, which were last granted for a limited period before the urgent procedure until November 2020 in accordance with Section 2 AsylbLG by the respondent's final decision dated August 21, 2020.
In a letter dated October 28, 2020, the respondent heard the applicant about a restriction of entitlement in accordance with Section 1a (3) AsylbLG for the period from December 2020. She then replied that she had visited the embassies of the Russian Federation and Ukraine (in Berlin and Hamburg) and Armenia (in Berlin) to clarify her identity - together with her mother - in vain. They also instructed a woman in Ukraine through acquaintances to apply to the relevant registry office to issue a copy of the applicant's birth certificate or to confirm her place of birth and place of residence. However, the office replied on August 18, 2020 that a birth certificate could not be issued without presenting a passport.
With a decision dated November 20, 2020, the respondent granted the applicant only limited benefits in accordance with Section 1a Paragraph 3 AsylbLG in the monthly amount of €619.38 for the period from December 2020 to May 2021, by depriving him of the basic benefits in accordance with Section 3a AsylbLG made a deduction of €185.00 and approved benefits for accommodation, heating and electricity in the amount of €325.00, €58.38 and €50.00 per month. The applicant had already been informed in the assurance dated July 24, 2020 that the heating cost discounts would not be taken into account in the actual amount (€65.00), but only in an appropriate amount.
On December 3, 2020, the applicant lodged an objection to this and asked the Social Court (SG) Hildesheim - like her mother because of the restriction of her rights imposed on her (- S 42 AY 4029/20 ER, L 8 AY 20/21 B ER -) - for interim relief Legal protection sought. After the applicant had submitted documents about 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 (written statement dated January 21, 2021), the SG ordered the respondent by order of January 25, 2021 provisional order obliges the applicant to temporarily grant the applicant unreduced, privileged benefits in accordance with Section 2 AsylbLG in conjunction with SGB As justification, it stated, among other things, that the applicant had not violated her obligation to cooperate under Section 82 (3) of the Residence Act. Because she was born in Ukraine, it makes sense that she has either Ukrainian or Armenian nationality. Because her mother's nationality is unclear, a nationality derived from her mother cannot be determined. The applicant credibly demonstrated concrete measures to obtain identity papers, on the one hand by visiting the embassies of Ukraine, the Russian Federation and Armenia and on the other hand by engaging a friend in Ukraine to apply for a birth certificate to be issued at the relevant registry office. She also made it credible that she was unable to correspond with the former school management because of the destruction of the school. By presenting her library card, she finally provided proof of her identity.
The respondent's complaint of February 22, 2021 is directed against this, alleging a violation of the right to be heard due to the applicant's undelivered written statement of January 21, 2021 (along with attachments) and also asserts that the applicant is preventing the implementation of measures to end her stay by concealing her nationality and a No or insufficient cooperation in obtaining travel documents home. The alleged efforts in the form of embassy visits and obtaining a new birth certificate are without substance and unsubstantiated. The response letter from the responsible Ukrainian registry office from August 2020 is a mere information letter and cannot serve as evidence of serious efforts to obtain documents. The applicant had already been informed in August 2019 that a library card was not sufficient to clarify her identity. The applications for passport replacement papers dated February 14, 2021 were filled out by her and her mother with such vague and inaccurate content that the Embassy of the Russian Federation - also due to the lack of identity documents - is unlikely to be able to process them (successfully). The applicant's entire behavior was characterized by disclosing as little and as vaguely as possible and giving the impression that obtaining travel documents home was impossible. This does not correspond to the administrative court decisions about the applicant's insufficient cooperation in obtaining a passport or passport replacement document.
The applicant considers the SG's decision to be correct and, after the rejection of her objection to the respondent's decision of November 20, 2020, filed a complaint with the SG by means of an objection decision of March 2, 2021.
For further details, reference is made to the content of the court file and the benefit files (one volume and one binder) and foreigner files (one binder).
II.
The lodged in due form and on time (Section 173 SGG) and is otherwise admissible, in particular because of a complaint of over €200.00 per month for a period of (maximum) six months (Section 172 Paragraph 3 No. 1, §§ 143, 144 Paragraph 1 Sentence 1 No. 1 SGG; cf. for the determination of the value of the subject of the complaint within the meaning of § 144 Paragraph 1 No. 1 SGG in proceedings for interim legal protection regarding ongoing benefits to secure a living, Senate resolution of December 12, 2016 - L 8 AY 51/16 B ER – juris Rn. 8) Complaint is unfounded. The SG rightly obliged the respondent by means of an interim order to temporarily grant the applicant benefits in accordance with Section 2 Paragraph 1 AsylbLG.
According to Section 86b Paragraph 2 Sentence 2 SGG, interim orders are permissible to regulate a provisional situation with regard to a disputed legal relationship if such a regulation appears necessary to prevent significant disadvantages. The prerequisite for the issuance of an interim injunction is that an asserted right exists against the respondent (right to an injunction) and that the applicant would suffer significant disadvantages without the issuance of the requested injunction (reason for the injunction). Both the sufficient probability of a material claim to benefits given in the matter and the urgency of the regulation to avert significant disadvantages must be made credible (§ 86b para. 2 sentence 4 SGG in conjunction with § 920 para. 2 ZPO).
According to these provisions, the interim order of the SG cannot be objected to.
The disputed legal relationship between those involved, which is subject to an interim order, concerns the lawsuit pending before the SG against the respondent's decision of November 20, 2020 in the form of the objection decision of March 2, 2021 regarding the approval of limited benefits in accordance with Section 1a Paragraph 3 AsylbLG for the period from December 1st .2020 until May 31, 2021. Since (only) the respondent has lodged an appeal, the examination of the SG's interim order in the appeal proceedings only concerns the period from December 5th, 2020 "until the decision of the objection to the decision of November 20th, 2020", i.e. until March 2nd. 2021.
During this period, the applicant was entitled to benefits as a tolerated person in accordance with Section 1 Paragraph 1 No. 4 AsylbLG. Toleration according to Section 60b AsylbLG is not expressly mentioned in Section 1 Paragraph 1 No. 4 AsylbLG; However, it still falls under this norm because this toleration is (also) within the meaning of Section 60a Residence Act “for people with an unclear identity”. This follows directly from Section 60b Paragraph 1 Sentence 1 Residence Act (Senate Resolution of July 9, 2020 - L 8 AY 52/20 B ER - juris Rn. 22; see also Frerichs in jurisPK-SGB XII, 3rd edition 2020, § 1 AsylbLG Rn. 136; aA Hohm in GK-AsylbLG, as of: March 2021, § 1 AsylbLG Rn. 112-113; Leopold in Grube/Wahrendorf/Flint, SGB XII, 7th edition 2020, § 1 AsylbLG Rn. 53).
According to the current status of the facts and the dispute, after a summary examination of the factual and legal situation, the applicant's benefits have been wrongly reduced in accordance with Section 1a (3) AsylbLG.
According to Section 1a Paragraph 3 Sentence 1 AsylbLG (as amended on August 15, 2019, Federal Law Gazette I 1294), those entitled to benefits pursuant to Section 1 Paragraph 1 Nos. 4 and 5 AsylbLG, i.e. persons who are legally obliged to leave the country with or without toleration, receive benefits from which they are entitled Measures to terminate the stay cannot be implemented for the reasons represented, only benefits in accordance with Section 1a Paragraph 1 AsylbLG on the day following the enforceability of a deportation threat or the enforceability of a deportation order. This means that they are only entitled to significantly reduced benefits; They are not entitled to benefits according to Sections 2, 3 and 6 AsylbLG. Misuse of benefits within the meaning of Section 1a Paragraph 3 Sentence 1 AsylbLG is, in particular, the violation of the obligation of a foreigner without a valid passport or passport substitute as set out in Section 48 Paragraph 3 Residence Act to participate in obtaining an identity document and establishing his identity and nationality (BSG, judgment of May 12, 2017 - B 7 AY 1/16 R - juris para. 15 with further references to the previous provision of Section 1a No. 2 AsylbLG aF). A limitation of claims according to Section 1a Paragraph 3 Sentence 1 AsylbLG also requires that the foreigner has behaved in a way that is reprehensible and that this behavior is the cause of the impossibility of implementing measures terminating the stay, although the BSG has so far left it open whether merely negligent behavior also constitutes a limitation of the claim can fulfill (BSG, loc. cit., Rn. 17). In addition, there must be a serious effort by the immigration office to return the person concerned to their home country (BSG, ibid., para. 18 with further references). It is problematic if there is not a single cause in the sense of a sine qua non for the impossibility of implementing the measures ending your stay, but rather there are several reasons for this. Then it must first be checked whose area of responsibility these causes fall. If there are several reasons for the impossibility of taking measures to end your stay, those entitled to benefits may only be credited with the reasons for which they are solely responsible. Causes that are within the area of responsibility of the immigration authorities, the home country or in the political sphere and which also causally influence the impossibility of terminating the stay are not eligible for a restriction of entitlement. As a result, this means that the cause set by the beneficiary must be the only one and the one that justifies the limitation of entitlement. Those entitled to benefits, on the other hand, do not have to accept any risks that lie outside their area of responsibility (Oppermann in jurisPK-SGB Rn. 27; most recently the Senate resolution of July 15, 2021 - L 8 AY 12/21 B ER -).
When interpreting Section 1a AsylbLG, the Senate also takes into account the case law of the BVerfG on a temporary withdrawal of subsistence benefits in order to enforce obligations to cooperate, which is subject to strict requirements of proportionality and the legislature's otherwise wide scope for assessing the suitability, necessity and reasonableness of regulations for the design of the welfare state (cf. BVerfG, judgment of November 5th, 2019 - 1 BvL 7/16 - juris 132-134; see also Senate resolution of December 4th, 2019 - L 8 AY 36/19 B ER - juris Rn. 6 ff.; most recently Saxon LSG, decision of March 3, 2021 - L 8 AY 8/20 B ER - juris para. 58 ff.). In order to avoid a possible violation of Article 1 Paragraph 1 of the Basic Law in conjunction with Article 20 Paragraph 1 of the Basic Law, Section 1a AsylbLG must be interpreted restrictively in the sense that a limitation of claims is only possible in those cases in which the factual requirements are clearly present. Only in these cases does the question, which has not yet been answered by the Senate, arise as to whether the legal consequence of a restriction of entitlement according to Section 1a Paragraph 1 Sentence 2 AsylbLG (in terms of amount) can actually satisfy constitutional requirements (cf. Sächsisches LSG, ibid.).
According to the current status, the overwhelming evidence suggests that the applicant has reprehensibly failed to comply with her obligations to cooperate in the immigration law procedure.
According to Section 48 Paragraph 3 of the Residence Act, a foreigner who does not have a valid passport or passport replacement is obliged to cooperate in obtaining identity papers as well as all documents, other documents and data carriers that are necessary for establishing his identity and nationality and for establishing and asserting it a possibility of repatriation to another country and which he is in possession of, must be presented, handed over and made available upon request to the authorities entrusted with the implementation of this law. According to the case law of the administrative courts, the foreigner is obliged not only to submit the necessary documents and to speak to the diplomatic mission of his home state, but also to regularly inquire if the identity document is not issued to him in a reasonable time to inquire about the reasons for the processing time and to persistently request that the paper be issued (cf. OVG Berlin-Brandenburg, judgment of October 16, 2018 - OVG 3 B 4.18 - juris Rn. 22; VG Munich, decision of September 5, 2018 - M 25 S 18.2249 - juris Rn. 17; VG Hamburg, judgment of November 2, 2010 - 8 K 1605/10 - juris Rn. 20). However, the immigration authority must have specifically updated legal obligations to cooperate, for example with regard to the procurement of identity papers (Section 48 Para. 3 Residence Act), in relation to the person concerned in order to be able to draw negative consequences under residence law from the lack of cooperation (BVerwG, judgment of October 26, 2010 - 1 C 18/ 09 - juris Rn. 17; SG Munich, decision of January 31, 2017 - S 51 AY 122/16 ER - juris Rn. 40). Furthermore, Section 82, Paragraph 3, Sentence 1 of the Residence Act imposes an obligation to inform the immigration authority, which generally has better contacts and knowledge regarding the existing options for obtaining home travel documents (OVG Berlin-Brandenburg, judgment of February 21, 2017 - OVG 3 B 14.16 – juris para. 24 mwN). These principles are to be transferred to the assessment of behavior relevant to benefits under Section 1a Paragraph 3 AsylbLG, but with the proviso of a restrictive interpretation with regard to clear and sustained violations of obligations to cooperate under residency law (cf. Senate resolution of June 6, 2019 - L 8 AY 17 /19 B ER -; Oppermann in jurisPK-SGB XII, 3rd edition 2020, § 1a Rn. 133). Due to the effects of the reduction in benefits, a restriction of benefits is only possible if the authority orders an applicant to take a concrete, achievable and reasonable act of cooperation, which the applicant does not comply with due to circumstances for which he is responsible. The result of the inability to enforce the measures terminating your stay must be based on circumstances that are within the area of responsibility of the person acting (Oppermann in jurisPK-SGB XII, 3rd edition 2020, § 1a AsylbLG Rn. 85 with further references). A comprehensive, concrete assessment must be carried out based on the individual case (Oppermann, ibid., § 1a AsylbLG Rn. 89). The decisive factor is whether the foreigner's misconduct was monocausal or whether a complete state failure (“powerlessness of the state”) at least partly caused this constellation (Oppermann, ibid., § 1a Rn. 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 probably did not participate adequately in obtaining a passport or a replacement passport document during the period in question, even though the immigration office The respondent has repeatedly and clearly pointed out their obligations to cooperate in this regard (including on June 27th, July 2nd, August 13th and 30th, November 28th, 2019 and subsequently when issuing a toleration permit for people with unclear identities in accordance with Section 60b of the Residence Act). Serious efforts to clarify their identity and obtain meaningful documents have not (still) been proven. This applies to the alleged attempt to obtain a birth certificate from the relevant registry office in Ukraine by a commissioned - unnamed - woman; The respondent correctly pointed out that the letter from the Central Office of the Civil Registry (…) 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) embassy interviews also do not provide sufficient evidence that the applicant did everything possible to clarify her identity and obtain the relevant documents. The claim of the applicant and her mother in the already decided parallel proceedings (decision of June 24, 2021 - L 8 AY 20/21 B ER -) that they themselves did not know what nationality they were and therefore had no information in the previous immigration law proceedings made for this purpose, appears to be pretextual in view of her living conditions in Ukraine - allegedly with legal residence due to a residence permit (for her mother), securing her livelihood through employment and the applicant's (regular) school attendance. It is not credible that the applicant (and her mother) should not be able to provide any (meaningful) evidence of their identity under these circumstances. With sufficient certainty, her lack of cooperation in the immigration process was also the (sole) reason why measures to end her stay could not be carried out against her.
Unlike in the case of her mother, however, there are pervasive doubts as to whether the restriction of the claim according to Section 1a Paragraph 3 AsylbLG due to a lack of cooperation in the procurement of passport and/or passport replacement papers has the (specific) purpose of terminating the applicant's stay, i.e. in a sufficient manner There was a consistently serious effort by the immigration office to return the applicant to her home country (on this requirement, BSG, judgment of May 12, 2017 - B 7 AY 1/16 R - juris para. 18 with further references). From the legal dispute over the issuance of an employment permit or a training toleration in accordance with Section 60c of the Residence Act (see decision of the VG Göttingen of February 6, 2020 - 1 B 349/19 -, p. 5) and the case of the immigration office involved, it follows that the focus is not or has not been on ending the applicant's stay; On the contrary, if the passport requirement is met and the other legal requirements are met, there would be the possibility of issuing a residence permit in accordance with Section 25a AufenthG or Section 18a AufenthG because the applicant had already completed training in Germany during the asylum procedure. In addition, the granting of training toleration could be considered (see the notes from the immigration office dated December 13, 2019 and January 6, 2020). Under these circumstances, a restriction of entitlement in accordance with Section 1a Paragraph 3 AsylbLG is most likely not justified in this individual case. Reductions in benefits are only proportionate if the burdens on those affected are in proportion to the actual achievement of the legitimate goal (cf. BVerfG, judgment of November 5, 2019 - 1 BvL 7/16 - juris Rn. 133).
For the period from December 3, 2020 to March 2, 2021, the applicant was (continued to) be entitled to analogous benefits in accordance with Section 2 Paragraph 1 AsylbLG in conjunction with SGB It was not (yet) possible to assume that there was any illegal influence on the length of stay in Germany. Based on the circumstances of the individual case, the type, extent and consequences of the breach of duty (within the meaning of Section 48 Para. 3 Residence Act) are not so serious that they also have significant weight within the framework of the principle of proportionality. Only behavior that is inexcusable (social injustice), taking into account the individual case, the special situation of a foreigner in the Federal Republic of Germany and the special characteristics of the AsylbLG, can lead to exclusion from analogous benefits (see BSG, judgment of June 17, 2008 - B 8/9b AY 1/07 R – juris para. 33). In this context, it should also be taken into account that the applicant is likely to be in a special conflict situation: participating in the immigration process could, on the one hand, benefit her continued stay in Germany, but on the other hand, it could promote the deportation of her mother. In addition, it is quite possible that the applicant is dependent on information and assistance from her mother, but does not receive this from her.
The cost decision is based on Section 193 SGG.
This decision is incontestable, Section 177 SGG.
