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 12th Chamber of the Social Court of Kassel decided on September 18, 2021, through its presiding judge, Judge xxx of the Social Court:
- Upon the application for an interim injunction filed with the court on July 14, 2021, by the applicant residing in communal accommodation, the suspensive effect of his objection of July 12, 2021, against the decision of the respondent of June 29, 2021, and insofar as the granting of benefits under the Asylum Seekers' Benefits Act (AsylbLG) for the period from July 1, 2021 to December 31, 2021, is hereby ordered, solely pursuant to Section 1a AsylbLG.
- The respondent is ordered by way of preliminary injunction to grant the applicant, from July 14, 2021, the date of receipt of the application by the court, until a decision is reached on the applicant's objection of July 12, 2021, against the decision of June 29, 2021, and, if the objection is rejected and a subsequent timely action is brought, also beyond that point until the conclusion of the main proceedings in the first instance, but initially at the latest until December 31, 2021, full benefits pursuant to Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) and to calculate these benefits according to the standard benefit level 1.
- Furthermore, the application is rejected.
- The respondent must reimburse the applicant for 2/3 of the costs of the proceedings.
REASONS
The admissible application is well-founded to the extent decided, whereby the claim and grounds for the order are based on the case law of the Hessian State Social Court (HLSG, decisions of February 26, 2020, L 4 AY 14/19 B ER; of April 13, 2021, L 4 AY 3/21 B ER, juris and most recently of July 26, 2021, L 4 AY 19/21 B ER), which was pointed out to the parties by the presiding judge on August 18, 2021, and is otherwise sufficiently known to the parties and also applicable to the applicant in the present proceedings. This case law establishes, on the one hand, the existence of significant constitutional concerns regarding benefit reductions under Section 1a of the Asylum Seekers' Benefits Act (AsylbLG), inter alia, in cases such as the one at hand, i.e., where a passport cannot be obtained and there is an existing obligation to leave the country, and on the other hand, also significant constitutional concerns regarding the granting of benefits to asylum seekers living alone in communal accommodation instead of according to the... Standard benefit level 1 can only be followed by standard benefit level 2 (cf. regarding Section 1a AsylbLG, Saxon State Social Court, decision of February 22, 2021, L 8 AY 9/20 B ER –, juris, and regarding Section 2 Paragraph 1 Sentence 4 No. 1 AsylbLG, the referral decision of the Düsseldorf Social Court, decision of April 13, 2021, S 17 AY 21/20 –, juris). The Chamber, after its own review, concurs with this case law in its entirety. In particular, with regard to Section 2 Paragraph 1 Sentence 4 No. 1 AsylbLG, the Chamber has already issued several decisions in the main proceedings in favor of the plaintiffs based on a constitutionally compliant interpretation, in which either the legal representative of the applicant in the present case was also the legal representative of the plaintiffs in those cases, or the respondent in the present proceedings was also the defendant in those cases. Therefore, in the specific case of the present applicant, after further examination, both the claim for an injunction and the grounds for an injunction exist, without any legally relevant doubts arising for the Chamber that would have prevented the Chamber from making the balancing decision in this respect.
However, insofar as the application claims benefits calculated according to standard benefit level 1 under Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) in addition to benefits calculated according to standard benefit level 1 under Section 2 of the AsylbLG, the application is unfounded. In the present case, where the applicant had previously received only benefits under Section 3 of the AsylbLG, irrespective of Section 1a of the AsylbLG, there is no ground for an order, as the subsistence minimum is already covered by benefits under Section 3 of the AsylbLG, and no further ground for an order has been credibly demonstrated.
Insofar as the application is justified, and based on the reasoning of the Higher Social Court of Saxony (HLSG) in the aforementioned decision of February 26, 2020, which this chamber follows, a summary review of the benefit reduction to which the applicant has repeatedly been subjected reveals the same constitutional concerns regarding the disputed benefit reduction, as formulated not only by the HLSG. The Higher Social Court of Saxony has also expressed this view, not only in its aforementioned decision but also in two further decisions (see orders of January 11, 2021, L 8 AY 10/20 B ER and of March 3, 2021, L 8 AY 8/20 BER, juris), that the provision in Section 1 Paragraph 1 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG) contradicts the constitutional requirements stated in the judgment of the Federal Constitutional Court (BVerfG) of November 5, 2019 (1 BvL 7/16, cited according to juris). The Saxon State Social Court points out that the reduction under Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) deprives a foreigner affected by the benefit restriction of approximately 50% of their monthly standard allowance. The Federal Constitutional Court has declared the sanction provisions in the German Social Code, Book II (SGB II), unconstitutional if they exceed the 30% reduction in benefits, even for repeated breaches of obligations. It has deemed reductions of up to 60% unreasonable and unconstitutional.
The same applies, according to the case law of the Chamber (SG Kassel, inter alia judgments of November 19, 2020, S 12 AY 56/20 and S 12 AY 44/20) and that of the HLSG (decision of April 13, 2021), also with regard to Section 2 Paragraph 1 Sentence 4 No. 1 AsylbLG as well as Section 3a Paragraph 1 Sentence 1 No. 2 b) AsylbLG, Section 3a Paragraph 2 Sentence 1 No. 2 b) AsylbLG
In the context of the balancing of interests, the applicant cannot reasonably be expected to accept the further restriction of his entitlement under Section 1a of the Asylum Seekers' Benefits Act (AsylbLG), at least within the framework of granting preliminary legal protection, taking into account his constitutional rights, and the respondent must be obliged to grant provisionally unreduced benefits under the AsylbLG (see also, among others, Social Court Kassel, decision of May 5, 2021, S 11 AY 7/21 ER and Social Court Marburg, decision of April 13, 2021, S 9 AY 1/21 ER); The same applies, on the other hand, and furthermore, to the sole provision of benefits according to standard benefit level 2 instead of standard benefit level 1. This is also independent of the fact that, according to the HLSG (decision of April 13, 2021), the benefit levels of Section 3a Paragraph 1 Sentence 1 No. 2 b) AsylbLG, Section 3a Paragraph 2 Sentence 1 No. 2 b) AsylbLG and Section 2 Paragraph 1 Sentence 4 No. 1 AsylbLG are, after summary review, also contrary to EU law.
In making this decision, the prospects in the main proceedings must ultimately and primarily be considered. If a claim is manifestly well-founded, the order is generally granted; if it is manifestly unfounded, it is generally denied. If neither of these conditions is manifestly met, a balancing of interests must be carried out within the scope of discretion. In preliminary injunction proceedings, the courts must, when interpreting the applicable provisions, take into account the particular importance of the fundamental rights affected and the requirements of effective legal protection, and in particular consider the consequences of denying preliminary legal protection. The more severe the resulting burdens and the lower the probability that they can be reversed if the claimant prevails in the main proceedings, the less the interest in a preliminary ruling may be disregarded. In these cases, it suffices that a preliminary review of the facts and the law reveals grounds for believing that there is a claim to the requested benefit (claim for an injunction).
This is because, according to the decisions of the Federal Constitutional Court (BVerfG), including those of November 22, 2002, 1 BvR 1586/02 and March 19, 2004, 1 BvR 131/04, the interest in a preliminary ruling or safeguarding of the asserted legal position may not be disregarded the more severe the burdens on the affected party that are associated with the denial of preliminary legal protection. Article 19 Paragraph 4 of the Basic Law (GG) requires preliminary legal protection in this respect, at least in cases concerning enforcement actions, if, without it, serious and unreasonable disadvantages would arise that cannot be averted in any other way and that the decision on the merits would no longer be able to remedy (see BVerfGE 79, 69 <74>; 94, 166 <216>). If courts base their decisions not on a balancing of conflicting interests but on the prospects of success in the main proceedings, they are obligated under Article 19, Paragraph 4, Sentence 1 of the Basic Law to justify the denial of preliminary legal protection on a thorough examination of the facts and the law. This also means that the examination of the prospects of success in the main proceedings must include questions of fundamental rights protection if there is cause to do so (see the decision of the Second Chamber of the First Senate of the Federal Constitutional Court of July 25, 1996, NVwZ 1997, p. 479).
The claim for an injunction and the grounds for the injunction do not exist in isolation, as the Higher Social Court (HLSG) ruled (decision of March 21, 2007, L 7 AY 14/06 ER, with further references) cited. Rather, there is a reciprocal relationship in that the requirements for the claim for an injunction decrease with increasing urgency or severity of the threatened harm (the grounds for the injunction), and vice versa. This is because the claim for an injunction and the grounds for the injunction form a dynamic system due to their functional connection.
If the main action is manifestly inadmissible or unfounded, the application for a preliminary injunction must generally be rejected, regardless of the grounds for the injunction, because no right worthy of protection exists. If, however, the main action is manifestly well-founded, the requirements for the grounds for the injunction are reduced. As a rule, the application for a preliminary injunction should then be granted, even though a ground for the injunction cannot be entirely dispensed with in this case. If the outcome of the main proceedings is uncertain, for example, if a complete clarification of the facts and the law is not possible in the expedited proceedings, a decision must be made by weighing the consequences. This weighing regularly favors the citizen if their right, derived from the constitutional principle of the protection of human dignity in conjunction with the social welfare principle, to lead a life of human dignity would be jeopardized. In this respect, the applicant's fundamental rights must be comprehensively considered in the balancing of interests. Particularly in cases involving claims aimed, for example, at securing the socio-cultural minimum standard of living as an expression of the constitutionally protected human dignity (Article 1, Paragraph 1 of the Basic Law in conjunction with the social welfare principle), a potentially existing claim for an injunction, especially if it amounts to a level of benefit indispensable for socio-cultural participation and is to be granted for a period that is not merely short-term, is generally to be provisionally satisfied if the factual or legal situation cannot be fully clarified in expedited proceedings. This is because, within the framework of the required balancing of interests, the interest of the benefit provider in avoiding unjustified benefits must regularly yield to the securing of the socio-cultural minimum standard of living that is currently attainable for the applicant (see, among others, the decisions of the Higher Regional Court of Hesse of July 27, 2005, L 7 AS 18/05 ER and of June 19, 2008, L 7 AS 32/08 B ER).
The comprehensive balancing of interests to be carried out within the framework of the summary examination leads, at least insofar as the application has been granted, to the applicant's interest in obtaining an order outweighing the respondent's interest in enforcement; i.e., if the outcome of the main proceedings is uncertain, the applicant's interest in the provisional granting of benefits prevails.
Due to the significant concerns regarding the constitutionality of Section 1a Paragraph 7 of the Social Court Act (SGG) on the one hand, and the benefit levels of Section 3a Paragraph 1 Sentence 1 No. 2 b) of the Asylum Seekers' Benefits Act (AsylbLG), Section 3a Paragraph 2 Sentence 1 No. 2 b) of the Asylum Seekers' Benefits Act (AsylbLG) and Section 2 Paragraph 1 Sentence 4 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG) on the other hand, as well as the resulting significant disadvantages for the applicant's livelihood, the application was to be granted in the present case, at least to the extent decided.
The application, according to the Higher Social Court (HLSG) (decision of February 16, 2020), was itself to be interpreted as a combination of an application under Section 86b Paragraph 1 and Section 86b Paragraph 2 of the Social Court Act (SGG), since the operative provisions regarding the determination of the breach of duty and the restriction of the benefit entitlement on the one hand, and the order for the implementation of the benefit-related measures on the other (either by means of an amended decision or a new decision granting benefits at a reduced amount) must be distinguished, and an objection to the determination of the restriction of the benefit entitlement does not have suspensive effect. Therefore, without ordering the suspensive effect of the objection, the court would be prevented from issuing a preliminary injunction granting benefits in an amount exceeding the determined restriction. Conversely, according to the HLSG (as before), ordering the suspensive effect is insufficient, since in this constellation there is no benefit award in the claimed amount that could be revived. Therefore, under the HLSG (as before), only a combination of both applications is permissible.
In part, the application for the provisional granting of benefits to be calculated according to the standard benefit level 1 pursuant to Section 2 AsylbLG had to be rejected for the aforementioned reasons.
The decision on costs follows § 193 SGG.
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