DECISION
In the legal dispute
xxx,
Applicant,
Legal representative:
Attorney Sven Adam
Lange, Geismarstraße 55, 37073 Göttingen
against
State of Hesse, represented by the Regional Council of Gießen,
Landgraf-Philipp-Platz 1-7, 35390 Gießen
Respondent,
The 11th Chamber of the Social Court of Kassel, through Judge xxx as Chairwoman, decided on August 25, 2021:
The respondent is ordered by way of an interim injunction to grant the applicant full benefits in accordance with Sections 3 and 3a of the Asylum Seekers' Benefits Act in the legally prescribed amount from 14 July 2021 until 31 October 2021.
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 on [date] in Guinea, entered the Federal Republic of Germany on September 29, 2020, and was admitted to the initial reception center of the State of Hesse in Gießen. He is now housed at the [address] in Kassel. By decision dated October 19, 2020, he was granted benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) in the form of in-kind benefits for the necessary needs for food, accommodation, healthcare, and household goods and consumables, a seasonal clothing package, a combined ticket for public transportation (equivalent to €23 per month), and cash benefits to cover necessary personal expenses in the amount of €116. By amended decision dated January 14, 2021, the cash benefits were increased to €123 per month effective January 1, 2021 (standard benefit rate of €146 minus public transportation ticket of €23).
The applicant's transfer to Spain was scheduled for March 25, 2021. Prior to this, he had been requested in writing to undergo a medical COVID-19 test at the initial reception center in Giessen on March 24, 2021. The applicant did not participate in the test. Consequently, the planned transfer to Spain did not take place. The so-called Dublin Regulation period has since expired, and the applicant's asylum procedure has transitioned into a national procedure. No decision has yet been issued in this matter.
Following a prior hearing on April 13, 2021, the respondent informed the applicant by decision dated April 30, 2021, that, with the revocation of the decision of January 14, 2021, the applicant would henceforth only receive benefits to cover his needs for food and accommodation, including heating, personal hygiene, and healthcare, in accordance with the restriction of entitlement pursuant to Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG). These benefits would be provided in kind. The reduction amount included the benefits granted to the applicant in the decision of January 14, 2021, amounting to €146, comprising the cash allowance of €123 and the public transport ticket provided as a benefit in kind, valued at €23. This would initially apply for a period of six months. The respondent explained that the legal basis for revoking the grant decision of January 14, 2021, was the corresponding application of Section 48 Paragraph 1 Sentence 1 of the Tenth Book of the German Social Code (SGB X) in conjunction with Section 1a Paragraph 3 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG). In this respect, a change in the factual and legal circumstances had occurred. The essential change in the basis for assessment was that the conditions for a restriction of entitlement under Section 1a Paragraph 3 Sentence 1 of the AsylbLG were now met. According to Section 1 Paragraph 1 Numbers 4 and 5 of the Asylum Seekers' Benefits Act (AsylbLG), individuals entitled to benefits under Sections 2, 3, and 6 of the AsylbLG, whose deportation cannot be carried out for reasons attributable to them, are not entitled to benefits under Sections 2, 3, and 6 of the AsylbLG from the day following the enforceability of a deportation threat or deportation order, unless the departure could not be carried out for reasons beyond their control. The applicant was subject to enforceable deportation under Section 90 Paragraph 3 of the Residence Act and prevented the execution of a deportation measure on March 25, 2021, in Gießen by failing to appear for a PCR test on March 24, 2021. He stated that he had taken a COVID-19 test in Kassel on March 19, 2021, and was subsequently transferred to Gießen. He stated that he had not received a letter requesting a test on March 24, 2021. He also stated that he had not yet received a decision regarding his asylum application. Because the applicant did not participate in the required COVID-19 test, the deportation scheduled for March 25, 2021, failed. The applicant demonstrably received the summons for the test, which was served on him and signed by him on March 22, 2021. A successful transfer was only possible with a negative PCR test. The applicant thwarted this transfer. Therefore, the benefit award of January 14, 2021, was revoked with immediate effect. The applicant will now only receive benefits to cover his needs for food and accommodation, including heating, personal hygiene, and clothing, in the form of in-kind benefits. The reduction in benefits is proportionate and, based on Section 14 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG), is initially in effect for six months. The decision became legally binding.
By letter from his legal representative dated July 13, 2021, the applicant requested a review of the decision of April 30, 2021, pursuant to Section 44 of the German Social Code, Book X (SGB X). In a letter received by the Kassel Social Court on July 14, 2021, the applicant sought the granting of full benefits by way of an interim injunction. He argued that, in accordance with the decision of the Federal Constitutional Court of November 5, 2019 (1 BvL 7/16), the benefit reduction could not be constitutional. He asserted that, in cases of doubt regarding constitutionality, a judicial decision must be made in preliminary injunction proceedings, taking into account the consequences. The applicant's constitutionally guaranteed minimum subsistence level is currently not secured. Therefore, he argued, grounds for an injunction exist within the meaning of Section 86, Paragraph 2, Sentence 2 of the German Social Courts Act (SGG). The sanction under Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) serves in this case to penalize failure to appear for a PCR test. This objective can no longer be achieved. The sanction is therefore unlawful.
The applicant essentially requests that
the respondent be ordered, by way of an interim injunction, to grant him full benefits in the statutory amount until a legally binding decision is reached on the application for review of the decision of 30 April 2021, taking into account the legal opinion of the court.
The respondent requests that
the application be rejected.
The existence of grounds for an injunction – namely, the urgency of the requested preliminary ruling – has not been credibly demonstrated. No evidence has been presented to support the necessity of granting benefits for the period following the filing of the application with the court. The applicant merely claims a general shortfall in the subsistence level without providing any specific details. The fact that the application for an injunction was filed with the court approximately 10 weeks after the issuance or receipt of the benefit decision argues against any particular urgency. Furthermore, the existence of the prerequisites for the claim to an injunction – the legal position whose enforcement in the main proceedings is intended – has not been credibly demonstrated. The decision of April 30, 2021, is lawful and does not infringe upon the applicant's rights. He is not entitled to higher benefits under the Asylum Seekers' Benefits Act (AsylbLG). Reference is made to the decision of April 30, 2021. Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) is applicable law. As a general principle, the socio-cultural minimum subsistence level for asylum seekers is not unconditional, but may be defined by the legislature. The legislature may make its granting dependent on the fulfillment of objectively proportionate requirements and conditions (LPK-SGB XII/Ulrich-Arthur Birk, 12th ed. 2020, AsylbLG § 1a para. 25). Therefore, a reduction to the essential minimum subsistence level is lawful if reasonable obligations to cooperate under immigration law are refused. The applicant's planned Dublin transfer to Spain on March 25, 2021, failed because the applicant did not appear for the PCR test. For a Dublin transfer, the Federal Office for Migration and Refugees (BAMF) issues a so-called laissez-passer. When issuing this substitute travel document, the identity of the person being transferred does not need to be definitively established. The so-called Dublin deadline has now expired, and the asylum procedure has transitioned into a national procedure. Deportation to the country of origin has not taken place, as the applicant currently possesses no travel documents.
For further details, including the submissions of the parties, reference is made to the contents of the court file and the administrative file of the respondent, insofar as this is the subject of the decision.
II.
The issuance of a preliminary injunction to regulate a provisional state of affairs with regard to a disputed legal relationship pursuant to Section 86b Paragraph 2 Sentence 2 of the Social Court Act (SGG) is permissible if such regulation appears necessary to avert substantial disadvantages. A prerequisite for issuing a regulatory injunction is always that both grounds 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 performance) are substantiated (cf. Section 86b Paragraph 2 Sentence 4 SGG in conjunction with Section 920 Paragraph 2 of the Code of Civil Procedure – ZPO). In principle, due to the provisional nature of the preliminary 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 of the Basic Law – GG), a deviation from this principle is only warranted if, without the requested order, serious or unreasonable disadvantages would arise that cannot be remedied later and which a subsequent decision on the merits 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 preliminary injunction proceedings, a balancing of interests must be carried out (cf. BVerfG, decisions of 12 May 2005 – 1 BvR 569/05, paras. 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, as stated in the operative part of this decision, is admissible and well-founded from the date of its receipt by the court on July 14, 2021. In this regard, the court, concerning the provisional obligation of the benefits authority to grant full benefits, relies on the reasoning of the Hessian State Social Court regarding the necessity of a constitutionally compliant interpretation of Section 1a of the Asylum Seekers' Benefits Act (AsylbLG), particularly in cases such as the present one, where the failure of a deportation measure is attributed to the recipient's lack of cooperation. In particular, the decisions of the Hessian State Social Court of February 26, 2020, in case L 4 AY 14/19 B ER and of July 26, 2021, in case L 4 AY 19/21 B ER, are relevant here.
The sole reason for the reduction of benefits under Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) is the applicant's failure to participate in the required COVID-19 test prior to the respondent's planned Dublin transfer to Spain on March 25, 2021. Regardless of the extent of the applicant's sole responsibility for the failed transfer, the decisive factor is that, due to the expiration of the deadline, a Dublin transfer to Spain, the country of first entry, is no longer possible, and the applicant's asylum procedure must be processed entirely in Germany. Until a decision is reached in the applicant's asylum proceedings, there will be no enforceable obligation to leave the country. Therefore, the applicant has a right to full benefits under the AsylbLG, as the requirements of Section 1a AsylbLG are not met with sufficient certainty. Regardless of the constitutional issues surrounding benefit reductions under Section 1a of the Asylum Seekers' Benefits Act (AsylbLG), the prerequisites for such a reduction are no longer met, at least from the date the applicant's urgent application was filed with the court on July 14, 2021. Neither a Dublin transfer nor deportation to the country of origin, Guinea, is currently possible under any legal framework. Therefore, a benefit reduction for the applicant is no longer justifiable, at least from the date the urgent application was filed with the court.
Despite the finality of the decision of April 30, 2021, and the fact that the application for preliminary legal protection was only filed with the court two and a half months after the issuance of the reduction order, the urgent need for action and thus grounds for an injunction must be affirmed due to the reduction of benefits to mere in-kind benefits and the elimination of all cash payments to cover necessary personal needs. The decisive factor is that the current reductions cannot meet constitutional requirements due to the lack of the necessary legal prerequisites. The applicant's dignified minimum standard of living is, in any case, not guaranteed.
Since the benefit reduction imposed by the respondent in the decision of 30 April 2021 is limited to six months, and the benefit period in dispute is limited accordingly, the court's decision to grant preliminary legal protection was to be limited until 31 October 2021.
The decision on costs follows from the corresponding application of Section 193 of the Social Court Act (SGG).
The dispute concerns the reduction of monthly benefits by €146 (standard rate of €146 including a public transport ticket of €23) for approximately three and a half months (July 14, 2021 – date of application to the court – until October 31, 2021). Therefore, only €511 is in dispute, and the minimum amount in dispute for an appeal on the merits, €750, as stipulated in Section 144 of the Social Court Act (SGG), is not reached. Consequently, an appeal is inadmissible in this case pursuant to Section 172 Paragraph 3 No. 1 of the Social Court Act (SGG).
