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, through Judge xxx as Chairwoman, decided on August 27, 2021:
The respondent is ordered by way of preliminary 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 28 July 2021 until a legally binding decision is reached on the review application and for a maximum period of 30 November 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 redacted] in Somalia, is a Somali national and, according to his own statements, entered the Federal Republic of Germany in December 2015 and submitted an asylum application here on August 12, 2016. By decision of the Federal Office for Migration and Refugees (BAMF) dated December 28, 2016, the applicant's application for refugee status, the application for asylum, and the application for subsidiary protection were rejected as manifestly unfounded. The BAMF denied any prohibition of deportation pursuant to Section 60, paragraphs 5 and 7, sentence 1 of the Residence Act (AufenthG) and ordered the applicant to leave the Federal Republic of Germany within one week, otherwise he would be deported to Somalia. The BAMF's decision became legally binding. Since then, the applicant has been residing in Germany with successively renewed temporary residence permits and currently lives in communal accommodation in Wolfhagen. The applicant has repeatedly been requested by the responsible immigration authority to obtain a passport or other identification document from the Embassy of the Republic of Somalia in Berlin to facilitate his departure. The applicant has not yet complied with this request. Currently, the applicant holds a temporary suspension of deportation (Duldung) valid until September 1, 2021. By decision dated March 9, 2021, the respondent granted the applicant monthly benefits of €328 for the period from March to June 2021, based on Sections 3 and 3a, paragraphs 1 and 2 of the Asylum Seekers' Benefits Act (AsylbLG).
By decision dated May 28, 2021, the respondent informed the applicant that, from June 1, 2021, to November 30, 2021, he would only be granted reduced benefits pursuant to Section 1a Paragraph 3 in conjunction with Section 1a Paragraph 1 Sentences 2-4 of the Asylum Seekers' Benefits Act (AsylbLG). Monthly payments of €173 would be made (in addition to benefits in kind). The respondent explained that, according to Section 1a Paragraph 3 of the AsylbLG, the entitlement of benefit recipients must be restricted if deportation measures cannot be carried out for reasons attributable to them. The abuse provision of Section 1a Paragraph 3 of the AsylbLG requires that the deportation measures intended by the competent authority cannot be carried out due to the foreigner's conduct. The conduct in question must be culpable and fall within the foreigner's sphere of responsibility, constituting the proximate cause of the deportation order's unenforceability. Despite repeated requests from the competent immigration authority to obtain a passport, the applicant failed to comply with his obligations. Despite the COVID-19 pandemic, the Somali Consulate General remained open, and the applicant could have contacted it to apply for a passport. By letter dated March 9, 2021, the applicant was informed of the intended reduction in benefits. It is his responsibility to obtain the necessary travel documents for his return home. The failure to obtain the required documents is the cause of the deportation order's unenforceability. Pursuant to Section 1a Paragraph 3 in conjunction with Section 1a Paragraph 1 Sentences 2-4 of the Asylum Seekers' Benefits Act (AsylbLG), beneficiaries will only receive benefits to cover their basic needs for food, accommodation (including heating), and personal hygiene until their departure or deportation. The decision of May 28, 2021 became legally binding.
In a letter dated July 26, 2021, addressed to the respondent, the applicant's legal representative requested a review of the respondent's reduction decision pursuant to Section 44 of Book Ten of the German Social Code (SGB X). No decision has yet been made on this matter.
In a letter received by the Kassel Social Court on July 28, 2021, the applicant requests the granting of full benefits by way of an interim injunction. He argues that, in accordance with the decision of the Federal Constitutional Court of November 5, 2019 (1 BvL 7/16), the benefit reduction cannot be constitutional. In cases of doubt regarding constitutionality, a judicial decision must be made in preliminary injunction proceedings, taking into account the balancing of interests. The applicant's constitutionally guaranteed minimum subsistence level is currently not secured. Therefore, grounds for an injunction within the meaning of Section 86 Paragraph 2 Sentence 2 of the Social Courts Act (SGG) must be assumed to exist. The reduction of the standard benefit by more than 50% is, in any case, incompatible with Article 1 of the Basic Law (GG). The benefit reduction must be suspended until the outcome of the main proceedings.
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 May 28, 2021, taking into account the legal opinion of the court.
The respondent requests that
the application be rejected.
He argues that the application for preliminary legal protection cannot succeed. 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 of the Social Court Act (SGG) if such regulation appears necessary to avert substantial disadvantages. A prerequisite for this is that both grounds for the injunction and a claim to the injunction are substantiated. These prerequisites are not met in the present case. No grounds for the injunction are apparent. The applicant receives restricted benefits pursuant to Section 1a Paragraphs 1 and 3 of the Asylum Seekers' Benefits Act (AsylbLG) because he refuses to obtain a passport as required by Section 60b Paragraph 3 of the Residence Act (AufenthG). The legally mandated consequence of reduced benefits under Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) contradicts the requested constitutionally compliant interpretation (see Osnabrück Social Court, judgment of April 9, 2021 – S 44 AY 77/19). Furthermore, the respondent maintains that, without a direct instruction from the Regional Council as the competent supervisory authority, it is prevented from deviating from the unambiguous wording of the law. Since benefits have already been granted at the requested statutory level, no further entitlement exists, and the application must be rejected.
For further details, including the submissions of the parties, reference is made to the contents of the court file and the administrative files of the respondent, insofar as these are 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 is permissible pursuant to Section 86b Paragraph 2 Sentence 2 of the Social Court Act (SGG) 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 is admissible and well-founded from the date of its receipt by the court on July 28, 2021, as formulated in the operative part of this decision. In this regard, the adjudicating chamber bases its decision on the preliminary obligation of the benefits authority to grant full benefits, as set forth in its own decision of May 5, 2021 (S 11 AY 7/21 ER) and in the reasoning of the Hessian State Social Court concerning 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 impossibility of terminating residency measures is attributed to the recipient's lack of cooperation. 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 in this context.
The reason for the reduction in benefits under Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) is the applicant's repeated and unfulfilled request to obtain a passport for departure to his country of origin, Somalia. The Hessian State Social Court stated in its aforementioned decision of July 26, 2021 (loc. cit.), and the present chamber concurs with this reasoning, that the refusal to cooperate in obtaining a passport is not inherently reprehensible. Regarding the requirement from the competent Somali passport authority for the issuance of a passport, a declaration by the applicant confirming the voluntary nature of his departure to Somalia, the Hessian State Social Court, in the aforementioned comparable decision, points out that such a declaration cannot be demanded of the applicant against his will, and that his will itself is not subject to state influence. In the present case, since the legally binding determination of the obligation to leave for Somalia in 2017, the applicant has refused any cooperation in obtaining a passport, thereby also expressing his unwillingness to leave voluntarily. Even considering the lack of a declaration of voluntariness, doubts exist regarding the respondent's justification for reducing benefits, given the potential misuse of benefits under Section 1a of the Asylum Seekers' Benefits Act (AsylbLG). Furthermore, according to the file contents (Volume 2 of the respondent's administrative file), there are also doubts as to whether deportation to Somalia is even currently being considered. Repeated memos, most recently dated August 22, 2019, state that deportation to Somalia would not actually be carried out. Therefore, the fulfillment of the criteria for abuse under Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG), which is indispensable for a benefit reduction, cannot be affirmed with sufficient certainty in two respects: Firstly, the failure to obtain a passport is not subjectively attributable to the applicant, because a declaration of voluntary departure from Germany, which contradicts the applicant's actual will, cannot be demanded; and secondly, the intention and current possibility of deportation to Somalia are doubtful in the first place. Regardless of the fundamental constitutional issues surrounding benefit reductions under Section 1a AsylbLG, the court is of the opinion that the prerequisites for such a reduction have not been met, at least since the applicant's application for preliminary relief was filed with the court on July 28, 2021. The benefit reduction for the applicant is therefore unjustifiable.
Despite the finality of the decision of May 28, 2021, and the fact that the application for preliminary legal protection was only filed with the court two months after the reduction order was issued, the need for urgent relief and thus grounds for an injunction must be affirmed due to the reduction of benefits from €328 per month to €173 per month, i.e., by €155 per month. The decisive factor is that the current reductions of almost 50% of the previous benefits cannot meet the requirements set by the Federal Constitutional Court, due to the lack of the necessary legal prerequisites. The applicant's dignified minimum standard of living is, at least for the time being, not guaranteed.
Since the benefit reduction imposed by the respondent in the decision of 28 May 2021 is limited to six months and the benefit period in dispute is limited accordingly, the court's decision to grant preliminary legal protection had to be limited until 30 November 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 €155 for four months and four days in July 2021 (July 28, 2021 – date of application to the court – until November 30, 2021). Therefore, only approximately €641 is in dispute, and the minimum amount in dispute for an appeal on the merits, €750, as required by 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)
