DECISION
In the legal dispute
xxx,
Applicant,
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
Hersfeld-Rotenburg district, represented by the district council,
legal and central services department,
Friedloser Straße 12, 36251 Bad Hersfeld,
Respondent,
The 7th Chamber of the Fulda Social Court decided on September 9, 2021, through Judge xxx of the Social Court:
- The suspensive effect of the applicant's objection against the implied restriction of entitlement for the month of July 2021 and against the decision of 26 July 2021 is ordered.
- The respondent is ordered by way of an interim injunction to provide the applicant with provisional benefits in accordance with Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) in the legally prescribed amount from July 14, 2021 to January 31, 2022.
- The respondent must reimburse the applicant for the necessary extrajudicial costs.
- The applicant is granted legal aid without installment payments for the first instance proceedings, with effect from 14 July 2021, with the appointment of Mr. Sven Adam, Attorney at Law in Göttingen.
REASONS
I.
The parties are in dispute over the amount of benefits to which the applicant is entitled under the Asylum Seekers' Benefits Act (AsylbLG).
The applicant, born in Eritrea on [date redacted], entered the Federal Republic of Germany by land on August 29, 2014, according to her own statements, and submitted an asylum application on September 15, 2014. By decision of the Federal Office for Migration and Refugees dated February 8, 2017 (pp. 135 et seq. of the respondent's administrative file), the applicant was not granted refugee status or subsidiary protection status, and it was determined that there were no grounds for prohibiting deportation pursuant to Section 60, paragraphs 5 and 7, sentence 1 of the Residence Act. The applicant was ordered to leave the Federal Republic of Germany within 30 days of notification of the aforementioned decision. By judgment of the Kassel Administrative Court of May 29, 2018 (Case No.: 1 K 1157/17.KS.A (pp. 109 ff.)), the applicant's action against the decision of the Federal Office for Migration and Refugees of February 8, 2017, was dismissed. The grounds for the decision indicate that the Administrative Court assumes the applicant is an Ethiopian citizen. Since December 18, 2018, the applicant has held a temporary suspension of deportation pursuant to Section 60a of the Residence Act.
On September 23, 2014, the applicant, who at that time held a residence permit for the purpose of pursuing her asylum application, first applied for benefits under the Asylum Seekers' Benefits Act (AsylbLG). The respondent, by decision dated September 24, 2014, granted benefits pursuant to Section 3 of the AsylbLG, effective September 23, 2014, and continued to grant these benefits until August 31, 2016. By decision dated August 15, 2016, the respondent granted the applicant analogous benefits pursuant to Section 2 of the Asylum Seekers' Benefits Act, effective September 1, 2016. These benefits continued to be granted until and including January 2019 and were then discontinued on January 31, 2019 – after the applicant had taken up employment on December 15, 2018 – due to an income exceeding the applicant's needs.
On December 10, 2019, the applicant, who, according to the temporary suspension of deportation dated December 3, 2019 (p. 427), was no longer permitted to work, again applied for benefits under the Asylum Seekers' Benefits Act (AsylbLG). According to a statement by the applicant dated January 22, 2020, contained in the respondent's administrative file (p. 90), regarding the reasons for proving her identity, the applicant declared, by checking the corresponding box, that she had not obtained her passport or passport substitute documents, despite her obligation under immigration law to obtain and submit them, because she was unwilling to do so.
The respondent subsequently granted the applicant ongoing benefits pursuant to Section 1a Paragraph 3 in conjunction with Section 14 of the Asylum Seekers' Benefits Act (AsylbLG) by decision dated January 22, 2020 (pp. 443 ff.), effective January 1, 2020. The justification for this decision, referring to the decision of the Federal Office for Migration and Refugees dated February 8, 2017, and the subsequent judgment of the Kassel Administrative Court dated May 29, 2018, stated that the applicant was subject to enforceable deportation and fell within the group of persons entitled to benefits under Section 1 Paragraph 1 No. 4 of the Asylum Seekers' Benefits Act (AsylbLG). It was further noted that the applicant had been informed by the Central Immigration Authority on January 29, 2019, that she was required to obtain a passport or equivalent travel document as part of her obligations to cooperate under immigration law pursuant to Section 48 Paragraph 3 of the Asylum Act, and that corresponding passport application forms had been provided to her on January 29, 2019. The applicant failed to obtain these documents. On May 6, 2019, the Central Immigration Authority again reminded the applicant of her obligation to cooperate, but she still failed to comply. On January 21, 2020, the applicant informed the authorities in writing that she was unwilling to obtain and submit the required passport or equivalent travel document. The respondent stated that the deportation measures could not be carried out because the applicant, despite repeated requests, had failed to comply with her obligation under immigration law to obtain a passport or equivalent travel document, even though such cooperation was entirely possible for her; the requirements of Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) were therefore met. The applicant had been sent a corresponding information sheet on January 10, 2020, which again informed her of her obligations under immigration law and the consequences regarding her benefits. The applicant was informed why benefits could be granted or a sanction imposed under Section 1a of the AsylbLG. During this hearing, the applicant had not provided any reasons that would preclude a change to benefits under Section 1a Paragraph 3 in conjunction with Section 1a Paragraph 1 in conjunction with Section 14 of the AsylbLG. The applicant signed a document confirming that she understood and agreed to the information sheet. Until the applicant's departure or deportation, benefits will only cover her basic needs for food, accommodation (including heating), and personal hygiene. Accommodation, including heating, will be provided through housing supplied by the respondent in accordance with Section 53 Paragraph 1 of the Asylum Act. Therefore, a reduction in benefits pursuant to Section 1a Paragraph 3 in conjunction with Section 1a Paragraph 1 in conjunction with Section 14 of the Asylum Seekers' Benefits Act will take effect on January 1, 2020, initially for a period of six months. After this period, the benefits will be reviewed again.
The aforementioned decision became legally binding. Benefits were subsequently paid to the applicant in the amount of €167 per month until the end of July 2020 (see p. 486). A review of the requirements of Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) at the end of June 2020 did not initially take place.
On October 6, 2020 (p. 72), the applicant, in a further explanation regarding the reasons for proving her identity, stated again by ticking the corresponding answer option that she had not obtained her required passport or passport substitute documents because she was unwilling to do so. The applicant also stated that she was in possession of a birth certificate, which would be sent by her siblings in Sudan and could be submitted within the next four weeks.
According to an internal memorandum from the respondent dated October 7, 2020, concerning the review of the continued benefit restriction pursuant to Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) (p. 70), it was noted that this review should have been conducted as early as July 1, 2020, and was now being carried out retroactively, as a timely review by the benefits case worker had not been possible due to the workload. The respondent referred to the applicant's statement of October 6, 2020, regarding the reasons for the failure to obtain a passport, and stated that the current documents showed that no passport or substitute passport documents were available to initiate deportation proceedings. The applicant herself had stated in the declaration of October 6, 2020, that she was not prepared to obtain the necessary passport or substitute passport documents. She stated that she was required to obtain substitute travel documents from the Eritrean/Ethiopian embassy/consulate. However, she indicated that she possessed appropriate identity documents, which she intended to have sent to her by her siblings. This could take approximately four weeks. The applicant is therefore currently failing to comply with her obligations under immigration law and is not submitting any passport or substitute travel documents, or any other necessary documents, to initiate deportation proceedings. Consequently, the sanction remains in effect and applies from July 1, 2020, to December 31, 2020. A further review will take place thereafter.
The applicant was not explicitly notified of the benefit restriction, nor was any further time limit imposed. Instead, the benefits continued to be paid monthly at the previous rate.
By decision of the defendant dated January 8, 2021 (pp. 517 ff.), the applicant was granted benefits under the Asylum Seekers' Benefits Act (AsylbLG) for the month of January 2021. This decision was subsequently revoked by a further decision dated February 4, 2021 (pp. 520 ff.). The benefits were recalculated, and it was stated that, according to this recalculation, the applicant was entitled to benefits in the amount of €173 starting in January 2021. In addition, the previous decisions for the period from January 1, 2021, onward were revoked, with the exception of the reasoning in the decision of January 22, 2020, regarding the granting of benefits pursuant to Section 1a Paragraph 3 in conjunction with Section 1a Paragraph 1 in conjunction with Section 14 of the Asylum Seekers' Benefits Act (AsylbLG). It was stated that the decision of January 8, 2021, had been erroneous and was being revoked. However, the full reasoning behind the decision of January 22, 2020, remains in effect. The applicant will continue to receive benefits pursuant to Section 1a Paragraph 3 in conjunction with Section 1 Paragraph 1 in conjunction with Section 14 of the Asylum Seekers' Benefits Act (AsylbLG) from January 1, 2021. No explicit time limit was imposed on the benefit restriction, nor was a corresponding justification provided. The decision of February 4, 2021, contains the following on page 2:
General Information:
The approved benefit(s) will initially be granted for a period of one month only and subject to the condition that the circumstances stated by the applicant/recipient, on which the approval is based, do not change. If no change occurs, the previously approved benefit(s) will continue to be paid automatically on a monthly basis without further application, in the amount specified in this notification. However, if changes in circumstances occur and this results in a payment that is not legally justified, the payment must be refunded to the extent that the applicant/recipient is responsible for the change.
Benefits under the Asylum Seekers' Benefits Act (AsylbLG) were paid to the applicant in the following months in the amount of €173 per month.
In a further explanation regarding the reasons for proving her identity, dated February 4, 2021 (p. 68), the applicant stated that she was currently unable to obtain the necessary documents due to the COVID-19 pandemic. She further explained that she did not possess the corresponding Eritrean or Ethiopian identity documents because they were located in Eritrea. The applicant had already been requested by the immigration authorities to submit or obtain passport or equivalent documents and/or Eritrean or Ethiopian identity documents (ID card, birth certificate, etc.). She had not yet complied with this request and would do so by February 9, 2021. Finally, the applicant stated that she would contact the embassy once the COVID-19 pandemic had subsided. The applicant's birth certificate was subsequently received by the respondent's immigration authorities on April 8, 2021 (p. 46).
In an internal memo dated February 22, 2021 (p. 65), the respondent states that the applicant has been receiving reduced benefits pursuant to Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) since January 1, 2020, and that, according to Section 14 of the AsylbLG, a review should be conducted every six months to determine whether a sanction can be maintained. A review was therefore necessary again starting in January 2021. This review is now being carried out retroactively, as a timely review by the caseworker was not possible due to the workload. Reference was made to the current documents, which indicate that no passport or equivalent travel documents are available to initiate deportation proceedings. Furthermore, reference was made to the applicant's statement that she has not yet obtained the necessary documents, but that they are located in Eritrea. The applicant stated that she intends to obtain the documents once the COVID-19 pandemic is over. It is unknown why the applicant did not attempt to obtain the necessary documents by telephone. The applicant is herself responsible for the fact that deportation measures cannot be carried out. She is therefore still failing to comply with her obligations to cooperate under immigration law. Consequently, the sanction remains in effect and applies (retroactively) for the period from January 1, 2021 to June 30, 2021. A further review will then take place.
No explicit notification or further limitation of the benefit restriction was given to the applicant at this point either.
By letter dated May 1, 2021 (p. 542), the applicant applied for benefits pursuant to Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) with effect from May 1, 2021. By further letter dated May 29, 2021 (p. 556), the applicant submitted a review application pursuant to Section 44 of the German Social Code, Book X (SGB X) concerning the benefits from January 2021 onwards, with reference to the amended decision of January 8, 2021. By decision dated May 18, 2021 (p. 554), the respondent rejected the application for benefits pursuant to Section 2 of the AsylbLG and stated, with reference to the decision of January 22, 2020, that the applicant was currently receiving benefits pursuant to Section 1a Paragraph 3 in conjunction with Section 1a Paragraph 1 in conjunction with Section 14 of the AsylbLG. The applicant's tolerated stay continues, and according to the latest information from the Central Immigration Authority, she is herself responsible for preventing deportation measures from being carried out. Therefore, the applicant can only continue to receive benefits under Section 1a Paragraph 3 in conjunction with Section 1a Paragraph 1 in conjunction with Section 14 of the Asylum Seekers' Benefits Act (AsylbLG). These benefits are reviewed regularly every six months in accordance with Section 14 of the AsylbLG. The applicant will be given the opportunity to comment in person on this matter by the respondent. The applicant herself has the option of remedying the situation regarding the limited benefits she receives under Section 1a Paragraph 3 in conjunction with Section 1a Paragraph 1 in conjunction with Section 14 of the AsylbLG by complying with the immigration authority's requests and obtaining the necessary documents under Section 48 of the Residence Act (AufenthG) to prove her identity and prevent her from being accused of herself of obstructing deportation measures. This option remains available to the applicant. Benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) would therefore be rejected.
By letter dated May 29, 2021, received by the respondent on May 31, 2021, the applicant lodged an objection against the decision of May 18, 2020. By further letter from her legal representative dated July 12, 2021 (p. 594), the applicant lodged an objection against the granting of benefits under the Asylum Seekers' Benefits Act (AsylbLG) for the period from February 1, 2021.
On July 14, 2021, the applicant filed the present application for preliminary legal protection with the Fulda Social Court. In support of her application, the applicant argues that, in her opinion, the provision of Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) is unconstitutional and refers in this regard to a statement by the Lower Saxony-Bremen State Social Court dated November 6, 2019, in the proceedings under file number L 8 AY 14/19 B ER, which in turn referred to the decision of the Federal Constitutional Court dated November 5, 2019, under file number 1 BvL 7/16. While the court cannot reject Section 1a AsylbLG due to doubts about its constitutionality, a judicial decision must be made in preliminary legal protection proceedings based on a balancing of interests. This decision can only result in the benefit reduction being suspended initially and until the outcome of the main proceedings. This applies all the more since, in the present case, a reduction of the standard benefit by more than 50% is incompatible with Article 1 of the Basic Law anyway.
By decision dated July 26, 2021 (page 26 of the court file), the respondent recalculated the benefits to which the applicant was entitled from August 2021 onwards, amounting to €173 per month. The decision stated that the previous decisions were revoked for the period from August 2021 onwards, and that only the reasoning of the decision dated January 22, 2020, regarding the granting of benefits pursuant to Section 1a Paragraph 3 in conjunction with Section 1a Paragraph 1 in conjunction with Section 14 of the Asylum Seekers' Benefits Act (AsylbLG), remained valid and was upheld. The applicant would continue to receive benefits pursuant to Section 1a Paragraph 3 in conjunction with Section 1a Paragraph 1 in conjunction with Section 14 of the AsylbLG. Reference was made to the reasoning, the possibilities for rectification, etc., of the decision dated January 22, 2020. The aforementioned decision did not specify a time limit for the benefit restriction, nor was any such limitation separately explained. The notification contains the same general information as the notification dated 04.02.2021 (see above).
The applicant, through her legal representative, filed an objection against the decision of July 26, 2021 by letter dated July 28, 2021 (page 30 of the court file), which has not yet been decided.
The applicant requests:
The respondent is ordered, by way of preliminary injunction, to grant the applicant the requested benefits in the statutory amount from the date of receipt of this application, provisionally and subject to the right of recovery, until a final and binding decision is reached on the applicant's objection of July 12, 2021, against the de facto granting of benefits from February 1, 2021 (file no.: 4.30-S519-153869) and on the objection of July 28, 2021, against the decision of July 26, 2021, taking into account the legal opinion of the court.
The respondent requests that
the application for an interim injunction be rejected.
The respondent argues that the reduction in benefits granted to the applicant pursuant to Section 1a Paragraph 3 in conjunction with Section 1a Paragraph 1 in conjunction with Section 14 of the Asylum Seekers' Benefits Act (AsylbLG) is lawful, as the applicant is culpably obstructing deportation measures by failing to comply with her obligations to cooperate under immigration law pursuant to Section 48 of the Residence Act (AufenthG) and by not obtaining the necessary identity documents, passports, travel documents, etc. The applicant's benefits are reviewed every six months in accordance with Section 14 of the AsylbLG. The last review was initiated in writing on June 25, 2021, by means of an information sheet, to which the applicant has not yet responded. On July 8, 2021, the applicant was again given the opportunity to speak in person regarding her benefits under the AsylbLG. The applicant also failed to take advantage of this offer of a personal meeting. According to the available documents, the applicant was repeatedly informed by the immigration office and the central immigration office about her obligations to cooperate under immigration law. She was also requested by the relevant department to submit new documents and informed that the submission of new documents could result in a change to her benefits. Furthermore, the applicant failed to attend a language course organized by the respondent without excuse. Benefits under the Asylum Seekers' Benefits Act (AsylbLG) cannot be reassessed without informing the applicant. There are no changes that would justify granting benefits under Sections 3, 3a, or 2 of the AsylbLG.
For further submissions by the parties, reference is made to the court file and to the administrative files of the respondent that were obtained.
II.
The court interprets the application as seeking higher benefits under the Asylum Seekers' Benefits Act (AsylbLG) without regard to the restrictions on entitlement under Section 1a AsylbLG, effective from July 14, 2021 (date of receipt by the court). Since the applicant has been residing in Germany without significant interruption since the end of August 2014, and thus for considerably more than 15 months (cf. Section 15 AsylbG), the applicant is ultimately seeking analogous benefits under Section 2 AsylbLG. The respondent's legally binding decision of February 4, 2021, is not at issue in this respect, as this decision only granted benefits for the month of January 2021 and does not constitute a continuing administrative act. Whether and to what extent a benefit award constitutes a continuing administrative act must be determined by interpretation based on the objective standard of a reasonable recipient. The objective scope of a decision under the Asylum Seekers' Benefits Act (AsylbLG) can be limited to one month if the approval is limited to that month and includes the following addendum: "If benefits for future periods are granted by bank transfer due to unchanged circumstances, the calculation and determination of the individual entitlements correspond to those of this decision." The approval for subsequent months is then not issued in writing on a monthly basis, but rather implicitly by bank transfer in accordance with Section 33 Paragraph 2 of the German Social Code, Book X (SGB X). Formulations such as "The determined assistance is generally granted for one month. Payments following this approval constitute a new approval" also support a monthly approval (Higher Social Court [HLSG] judgment of April 13, 2021, para. 24 with further references).
Measured against this standard, the respondent's decision of February 4, 2021, is not a future-oriented, long-term administrative act. Despite the wording in the decision stating that the applicant is entitled to benefits in the amount of €173.00 "from" the month of January 2021, it is unequivocally clear from the decision, including the "General Information," that the approved benefits are initially granted only for a period of one month and that, if the circumstances on which the approval is based do not change, the previously approved benefits will continue to be paid automatically on a monthly basis without the need for an application. This clearly indicates that the benefit was intended to be granted only for the month of January 2021. The subject of this dispute is therefore not the respondent's decision of February 4, 2021, but rather the implied grant of benefits, including the continued restriction of entitlement pursuant to Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) for the month of July 2021. This administrative act, issued in a different manner (Section 33 Paragraph 2 Sentence 1 of the German Social Code, Book X (SGB X)), did not include any information on legal remedies, so the applicant's objection filed against it by letter dated July 12, 2021, was not time-barred. The respondent's decision of July 26, 2021, is also subject to dispute. Whether the decision of 26 July 2021 already became the subject of the ongoing objection proceedings as a consequence of the objection of 12 July 2021 pursuant to § 86 SGG analogously (compare in this regard Hessian State Social Court, judgment of 22 July 2020 – L 4 AY 8/17 –, juris, para. 36 with further references), can remain undecided, since the decision was in any case challenged separately by letter of objection from the applicant's legal representative of 28 July 2021 (p. 30 of the court file).
The court interprets the application for preliminary legal protection as a combination of an application under Section 86b Paragraph 1 and Section 86b Paragraph 2 of the Social Court Act (SGG). This is because the new concept for benefit reductions under the Asylum Seekers' Benefits Act (AsylbLG) aimed to align benefit reductions as closely as possible with the sanction concept of Book II of the German Social Code (SGB II). Accordingly, a distinction must be made between the operative provisions establishing the breach of duty and the restriction of the benefit entitlement on the one hand, and the order for its implementation under benefit law on the other (either through an amended decision or a new decision granting benefits at the reduced amount). Since an objection to the determination of the restriction of the benefit entitlement does not have suspensive effect (Section 11 Paragraph 4 No. 2 AsylbLG), the court would be prevented from issuing a preliminary injunction granting benefits exceeding the established restriction without ordering the suspensive effect of the objection. Conversely, ordering the suspension of the decision is insufficient, as in this situation there is no benefit award in the claimed amount that could be reinstated. Therefore, only a combination of both applications is permissible (Hessian State Social Court, decision of February 26, 2020 – L 4 AY 14/19 B ER –, juris, para. 4 with further references).
The application for preliminary legal protection, as understood above, is admissible and well-founded.
The suspensive effect of the objection against the implied restriction of entitlement within the meaning of Section 1a Paragraph 1, 3 AsylbLG for the month of July 2021 and against the decision of 26 July 2021 is to be ordered.
Pursuant to Section 86b Paragraph 1 Sentence 1 Number 2 of the Social Court Procedure Act (SGG), the court of first instance may, upon application, order the suspension of an administrative act in whole or in part in cases where an objection or appeal does not have suspensive effect. The balancing of interests required when deciding on the order of suspensive effect under Section 86b Paragraph 1 SGG must encompass all public and private interests that are relevant in the individual case. The prospects of success in the main proceedings, i.e., in particular the legality or illegality of the administrative act, are of considerable importance insofar as they can be assessed within the scope of the summary review required in preliminary injunction proceedings. Thus, the order of suspensive effect must be granted without further ado if the decision is manifestly unlawful (and the action admissible), whereas it is precluded if the decision is manifestly lawful (or the action is manifestly inadmissible). Particularly when the prospects of success are uncertain, a comprehensive balancing of interests must take place, within which the fundamental rights of those affected must be considered, insofar as they are impacted by the decision. Finally, the assessment inherent in the statutory provision for regular immediate enforcement must be taken into account. These requirements must be specified for both appeal and enforcement proceedings in light of the guarantee of effective legal protection under Article 19 Paragraph 4 of the Basic Law (GG). The more serious the threatened violation of fundamental rights and the higher the probability of its occurrence, the more intensive the factual and legal analysis of the matter must be, even in preliminary legal protection proceedings. If a clarification of the factual and legal situation corresponding to the threatened violation of fundamental rights is not possible in expedited proceedings—for example, because it would require further factual investigations that cannot be carried out within the short time available—it is constitutionally permissible for the decision on granting preliminary legal protection to be based on a balancing of interests. However, if the preliminary legal protection proceedings completely assume the significance of the main proceedings and there is a risk of the parties permanently preventing the realization of their fundamental rights, the courts must, when setting the requirements for establishing prima facie evidence to justify benefits for subsistence in preliminary legal protection proceedings, take into account the significance of the fundamental right under Article 1 Paragraph 1 of the Basic Law in conjunction with Article 20 Paragraph 1 of the Basic Law. The requirements for establishing prima facie evidence must be oriented toward the legal protection objective pursued by the respective legal claim. In any case, if a "thorough" or "conclusive" examination is possible in preliminary injunction proceedings, and a complete clarification of the facts by the court through the taking of evidence at the standard of the main proceedings is not possible solely because facts within the sphere of the person bearing the burden of proof remain unclear due to a lack of cooperation, then the prospects of success are not so "open" as to require a balancing of interests under constitutional law. Rather, the examination remains subject to the statutory standard of review based on the prospects of success, taking into account the significance of Article 1 in conjunction with Article 20 Paragraph 1 of the Basic Law with regard to the standard of proof (see, in general: Hessian State Social Court, decision of February 26, 2020 – L 4 AY 14/19 B ER –, juris, para. 8 et seq. with further references).
Measured against this standard, the administrative act issued in another manner (§ 33 para. 2 sentence 1 SGB X) concerning the granting of benefits for the month of July 2021 and the decision of 26 July 2021 prove to be materially unlawful because the restrictions on entitlement imposed by these administrative acts pursuant to § 1a AsylbLG were not subject to a time limit, contrary to § 14 AsylbLG.
According to Section 14 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG), restrictions on benefits under the AsylbLG must be limited to six months. This time limit must be specified in the declaratory administrative act concerning the restriction of benefits, since Section 1a of the AsylbLG, at the latest since the amendment of the AsylbLG by the Asylum Procedure Acceleration Act of October 20, 2015 (Federal Law Gazette I 1722) and the Integration Act of July 31, 2016 (Federal Law Gazette I 1939), can no longer be interpreted as self-executing, as is particularly evident from the provisions of Sections 11 Paragraph 4 No. 2 and 14 Paragraph 1 of the AsylbLG, which require a declaratory administrative act. Section 14 of the AsylbLG applies without exception to all restrictions on benefits (Hessian State Social Court, decision of September 21, 2018 – L 4 AY 10/18 B ER –, juris, para. 9). The court cannot discern the necessary time limit for the restriction of the claim. While the respondent's administrative file (p. 65) indicates that, following the issuance of the decision of February 4, 2021, the respondent at least internally considered limiting the restriction of the claim pursuant to Section 1 of the Asylum Seekers' Benefits Act (AsylbLG) and apparently concluded that such a time limit for the period from January 2021 to June 2021 was justified, no corresponding declaratory ruling was issued to the applicant in the form of an administrative act.
The respondent was also to be ordered, by way of an interim injunction, to grant benefits in accordance with Section 2 of the Asylum Seekers' Benefits Act (AsylbLG).
According to Section 86b Paragraph 2 Sentence 1 of the Social Courts Act (SGG), the court may, upon application, issue a preliminary injunction concerning the subject matter of the dispute if there is a risk that a change in the existing situation could frustrate or significantly impede the realization of a right of the applicant (protective injunction). According to Sentence 2 of this provision, preliminary injunctions are also permissible to regulate a provisional state of affairs with regard to a disputed legal relationship if such regulation appears necessary to avert significant disadvantages (regulatory injunction). If a claim for benefits by the applicant forms the basis for the requested preliminary legal protection, this protection is generally to be granted by way of a regulatory injunction pursuant to Section 86b Paragraph 2 Sentence 2 SGG. Accordingly, the preliminary injunction must be necessary to avert a significant disadvantage for the applicant. Such a disadvantage can only be assumed if, on the one hand, the applicant has a substantive legal claim against the respondent in the main proceedings (claim for an injunction) and, on the other hand, it is unreasonable to expect the applicant to await a decision on the merits of the case (ground for an injunction). Waiting for a decision in the main proceedings must not entail significant disadvantages. Therefore, there must be an urgent emergency situation that requires an immediate decision (Higher Social Court, decision of June 18, 2008 – L 6 AS 41/08 B ER with further references). Such an emergency situation is to be affirmed, in particular, if the applicant's livelihood is threatened or significant economic disadvantages arise (Keller in: Meyer-Ladewig/Keller/Leitherer/Schmidt, Social Courts Act, 13th edition 2020, § 86b, para. 28). The claim for an injunction and the grounds for it are interrelated, such that the requirements for the claim are reduced with increasing urgency or severity of the threatened harm, and vice versa. Due to their functional connection, the claim for an injunction and the grounds for it form a flexible system (HLSG, loc. cit.; Keller, loc. cit., paras. 27 and 29 with further references). If a claim on the merits would be manifestly inadmissible or unfounded, the application for a preliminary injunction must generally be rejected, regardless of the grounds for it, because no right worthy of protection exists. Conversely, if a claim on the merits would be manifestly well-founded, the requirements for the grounds for it are reduced, even though a ground for it cannot be dispensed with entirely in this case (HLSG, loc. cit.). If the outcome of the main proceedings is uncertain, for example, if a complete clarification of the factual and legal situation is not possible in the preliminary injunction proceedings, a decision must be made by weighing the consequences. In cases where subsistence benefits are at issue and serious and unreasonable impairments may arise that cannot be averted otherwise and cannot be remedied by the main proceedings, the factual and legal situation must be examined not merely summarily, but conclusively. If, in such cases, the court is unable to fully clarify the factual and legal situation in preliminary proceedings, a decision must also be made based on a balancing of interests, whereby, however, the applicant's fundamental rights must be fully taken into account in the balancing (Federal Constitutional Court, decision of May 12, 2005, NVwZ 2005, 927-929).
Measured against these requirements, the applicant has credibly demonstrated both the existence of a claim to an injunction and the existence of grounds for such an injunction. The applicant is entitled to benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG).
According to Section 2 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG), and notwithstanding Sections 3 and 4 as well as 6 to 7, Book Twelve of the Social Code and Part 2 of Book Nine of the Social Code apply accordingly to those beneficiaries who have resided in Germany for 18 months without significant interruption and have not abused their rights to influence the duration of their stay. The requirements of Section 2 Paragraph 1 of the AsylbLG are met in this case. The applicant has a temporary suspension of deportation (Duldung) pursuant to Section 60a of the Residence Act and is therefore entitled to benefits within the meaning of Section 1 Paragraph 1 Number 4 of the AsylbLG. Furthermore, the applicant has resided in Germany for at least 15 months (cf. Section 15 of the AsylbLG) without significant interruption. Moreover, the court finds no indication that the applicant abused her rights to influence the duration of her stay in Germany. The concept of abuse of rights comprises an objective component – the element of abuse – and a subjective component – culpability. This element of the offense under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) is based on the principle that no one may invoke a legal position that they themselves have brought about in bad faith. Objectively speaking, abuse of rights requires dishonest conduct disapproved of by the legal system. However, given the punitive nature of Section 2 AsylbLG, not just any conduct that is in any way reprehensible is sufficient. Only conduct that is inexcusable (socially unacceptable), taking into account the specific circumstances of the individual case, the particular situation of a foreigner in the Federal Republic of Germany, and the specific characteristics of the AsylbLG, leads to the exclusion of analogous benefits. The explanatory memorandum to the law cites the destruction of a passport (Bundestag printed matter 15/420, p. 121) as a typical example of abuse of rights, unless it is itself a reaction to or a preventive measure against objectively foreseeable misconduct by the state. The mere exploitation of a procedural position by failing to leave the country is insufficient. Thus, the fact that a foreigner does not leave the country despite a (formal) obligation to leave (tolerated stay) does not constitute an abuse of rights, but rather, under certain circumstances, the reasons that led to this. The residence status (tolerated stay) is irrelevant to the question of whether the foreigner has himself abused his stay. If the foreigner is responsible for these reasons, i.e., if he himself influenced the situation, then an abuse of rights can only be affirmed for this reason, and not because of an existing obligation to leave (see, in general: Hessian State Social Court, decision of February 26, 2020 – L 4 AY 14/19 B ER –, juris, para. 16, 17 with further references).
Measured against this standard, the court cannot discern any objectively socially unacceptable behavior on the part of the applicant in the aforementioned sense. While it is true that the applicant was repeatedly and unsuccessfully requested by the Central Immigration Authority at the Kassel Regional Council and also by the Immigration Authority at the defendant's office to fulfill her duty to cooperate with regard to the issuance of a travel document (pp. 66; 74 et seq. of the respondent's administrative file), and that the applicant stated to the respondent in January and October 2020 that she had not obtained and submitted the corresponding passport or passport substitute documents because she was unwilling to do so (pp. 90, 72 of the respondent's administrative file), this does not constitute such behavior. It may also be that this behavior on the part of the applicant in the past fulfilled the substantive requirements for a restriction of benefits under Section 1a, Paragraphs 1 and 3 of the Asylum Seekers' Benefits Act (AsylbLG), especially since the applicant does not dispute the existence of these requirements. The fact that measures to terminate residency cannot be carried out for reasons attributable to the benefit recipient is not equivalent to an abuse of rights influencing the duration of residency within the meaning of Section 2 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG), since the latter provision, as already explained, requires conduct that, considering the individual case, the specific situation of a foreigner in the Federal Republic of Germany, and the particular characteristics of the AsylbLG, is inexcusable and therefore socially unacceptable. In a letter dated February 4, 2021, the applicant stated – in contrast to her previous statements (see above) – that she was currently unable to obtain the necessary passport or passport substitute documents due to the coronavirus pandemic and would contact the embassy after the pandemic ended. Whether this statement is merely a pretext or perhaps stems from a genuine fear of coronavirus infection cannot be determined from the administrative file and therefore remains open. However, it is not apparent from the available administrative file that the applicant was subsequently specifically requested to contact the responsible embassy, at least by telephone or otherwise. Furthermore, in accordance with her declaration of February 4, 2021, the applicant submitted the birth certificate requested by the respondent. While the applicant is thus fulfilling her duty to cooperate only slowly and in no way comprehensively, she is also not persistently refusing to do so in a manner that would constitute inexcusable and socially unacceptable behavior in the aforementioned sense, which would justify the denial of analogous benefits.
Since, for the aforementioned reasons, the conditions for the application of Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) are met, the Social Code, Book XII (SGB XII) shall apply accordingly, notwithstanding Sections 3 and 4 as well as 6 to 7 of the AsylbLG, and the respondent shall be obligated as requested.
The grounds for issuing the requested interim injunction were also sufficiently substantiated and are obvious due to the shortfall in coverage of needs for several months.
The court considers it appropriate in the present case to order the respondent to provide the applicant with benefits pursuant to Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) until January 31, 2022, as it can be assumed that the pending objection proceedings will be concluded by then.
The decision on costs is based on a corresponding application of Section 193 of the Social Court Act (SGG).
The applicant was to be granted legal aid, as she is unable to pay the costs of litigation, even in installments, due to her personal and financial circumstances. Furthermore, the application has a reasonable prospect of success and does not appear frivolous (§ 73a SGG, § 114 ZPO). Legal representation is required (§ 73a SGG, § 121 para. 2 ZPO).
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