DECISION
S 42 AY 4012/21 ER
In the legal dispute
xxx,
– Applicant –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
Hildesheim District Office OE 908/Legal Affairs,
represented by the District Administrator,
Bischof-Janssen-Straße 31, 31134 Hildesheim
– Respondent –
The 42nd Chamber of the Hildesheim Social Court decided on September 21, 2021, through Judge xxx of the Social Court:
The respondent is ordered by way of preliminary injunction to grant the applicant, provisionally subject to the right of recovery, privileged benefits pursuant to Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with the German Social Code, Book XII (SGB XII) by analogy, for the period from June 1st to December 31st, 2021, according to the standard benefit level 1, unless a decision is reached beforehand on the objection to the decision of April 29th, 2021.
The respondent must reimburse the applicant for his extrajudicial costs.
REASONS
The application for an interim injunction with the aim of granting a provisional benefit in accordance with Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with the Social Code Book Twelve (SGB XII) – Social Assistance – analogously according to the standard benefit level 1, is successful.
Pursuant to Section 86b, paragraph 2 of the Social Courts Act (SGG), the court of first instance may, upon application, issue a preliminary injunction concerning the subject matter of the dispute, provided that a case under paragraph 1 does not apply, if there is a risk that a change in the existing situation could frustrate or significantly impede the applicant's exercise of a right. 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 substantial disadvantages. The court of first instance is the court of first instance.
A prerequisite for issuing the requested regulatory order pursuant to Section 86b, paragraph 2, sentence 2 of the Social Court Act (SGG) is, in addition to the particular urgency of the regulation (ground for the order), a claim by the applicant to the requested regulation (claim for the order). The ground for the order and the claim for the order must be substantiated (Section 86b, paragraph 2, sentence 4 SGG in conjunction with Section 920, paragraph 2 of the Code of Civil Procedure (ZPO)). Insofar as the prospects of success are considered in connection with the claim for the order, the factual and legal situation must be examined not merely summarily, but conclusively (cf. decision of the Federal Constitutional Court of May 12, 2005 – 1 BvR 569/05 –). Moreover, the requirement of establishing credibility relates only to the reduced intensity of the review and the need for a preponderance of probability to demonstrate the factual prerequisites of the claim for an order and the grounds for the order (cf. decisions of the Hessian State Social Court (LSG) of June 29, 2005 – L 7 AS 1/05 ER –, and of February 12, 1997 – L 7 AS 225/06 ER –; Berlit, info also 2005, 3, 8).
The applicant has credibly demonstrated both a claim to and grounds for an injunction. The Chamber fully adopts the decision of the Higher Social Court (LSG) of Lower Saxony-Bremen of February 11, 2021 – L 8 AY 76/20 B ER – and fully concurs with the reasoning regarding the quality of the benefit and the standard benefit rate. The court is convinced that no significant change in circumstances with regard to the allegation of abuse of rights has occurred since the expiration of the period of validity of the provisionally granted benefits on May 31, 2021. The applicant has neither demonstrably misrepresented his identity nor refused to cooperate in fulfilling his obligations under immigration law; the burden of proof rests solely with the authority. The respondent's argument essentially boils down to a lack of understanding of the higher court's decision, which is not accepted due to its inconsistency with immigration law principles. This leaves it to the social courts to address the factual and legal situation in further (costly) preliminary injunction proceedings. A preliminary ruling pending the outcome of the main proceedings would avoid these unnecessary proceedings (given the well-known legal opinion of the Higher Social Court) and the additional costs for taxpayers, thus relieving the burden on the social courts.
The decision on costs follows analogously from Section 193 Paragraph 1 of the Social Court Act (SGG).
The following is information on legal remedies.
