COURT ORDER
S 42 AY 55/21
In the legal dispute
xxx,
– Plaintiff –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
Göttingen District,
represented by the District Administrator,
Reinhäuser Landstraße 4, 37083 Göttingen
– Defendant –
The 42nd Chamber of the Social Court of Hildesheim, on September 20, 2021, pursuant to Section 105 of the Social Courts Act (SGG), rendered the following judgment through Judge xxx of the Social Court:
The defendant is ordered, with the annulment of the decision of November 20, 2020 as amended by the appeal decision of March 2, 2021, to grant the plaintiff 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 December 1, 2020 to May 31, 2021, taking into account the benefits already granted for this period under the Asylum Seekers' Benefits Act (AsylbLG).
The defendant must reimburse the plaintiff for her extrajudicial costs.
FACTS
The plaintiff is challenging the reduction of privileged benefits under Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with the Social Code Book Twelve (SGB XII) – Social Assistance – by analogy for the period from December 1, 2020 to May 31, 2021.
The plaintiff, born in 19xx and single, states that she is stateless and entered Germany on May 28, 2015. During her asylum proceedings, her citizenship was repeatedly noted as belonging to the Russian Federation, despite her Armenian ethnicity. The Federal Office for Migration and Refugees (BAMF) rejected her applications for refugee status, subsidiary protection, and asylum, found no grounds for prohibiting deportation, and ordered her to leave the country. Otherwise, she would be deported to the Russian Federation. Her appeals against this decision were unsuccessful.
The plaintiff was assigned to the municipality of Hattorf am Harz on August 3, 2015, and during the period in question had neither available income nor realizable assets. On July 2, 2019, the defendant, in a meeting, requested that the plaintiff comply with her obligations under immigration law. According to the note by case worker xxx dated July 15, 2019, the plaintiff had requested passport documents from the Ukrainian embassy, a process that could take six months. She was informed that obtaining a passport would only be considered unreasonable if all relevant embassies (Russia, Ukraine, Armenia, Azerbaijan, Iran) definitively refused. A further request followed on August 13, 2019. Subsequently, the defendant granted her a temporary suspension of deportation pursuant to Section 60b, paragraphs 2 and 3 of the German Residence Act (AufenthG).
The defendant granted the plaintiff – as before – privileged benefits pursuant to Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) for the period from June 1 to November 30, 2020, in the amount of €842.67 per month, by decision dated May 4, 2020. By decision dated October 7, 2020, he granted privileged benefits for the period from December 1, 2020, to May 31, 2021, in the same amount.
Following a prior hearing, the defendant granted her reduced benefits pursuant to Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) in the amount of €646.67 per month for the period from December 1, 2020, to May 31, 2021, by decision dated November 20, 2020. The defendant justified this reduction by stating that she was not cooperating in obtaining passport documents, even though this was possible and reasonable. She had been repeatedly and adequately informed of her obligations to cooperate under immigration law since July 2, 2019. The benefits were limited to €186 per month, of which €150.44 was allocated to food, €26.58 to personal hygiene, and €8.98 to healthcare.
The plaintiff filed an objection on December 3, 2020, arguing that she possessed neither a birth certificate nor a passport. She stated that she was waiting for a list of trusted lawyers from Ukraine and had also contacted the Russian Embassy.
The defendant rejected the objection with a notice of objection dated March 2, 2021, stating as grounds that measures to terminate the plaintiff's residence could not be enforced for reasons attributable to the plaintiff, because she was thwarting the procurement of travel documents for her return home.
The plaintiff filed a lawsuit on March 3, 2021.
She presents:
A sanction under Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) is unconstitutional, a view also held by the Lower Saxony-Bremen State Social Court (LSG). Furthermore, she did not refuse to cooperate in clarifying her identity.
The applicant requests:
- The defendant is ordered, by amending the defendant's decision of November 20, 2020, as modified by the appeal decision of March 2, 2021, to grant the plaintiff the requested benefits for the period from December 1, 2020 to May 31, 2021, in the legally or constitutionally permissible amount, taking into account the legal opinion of the court.
The defendant requests
that the action be dismissed.
He presents his case with reference to the issued decisions.
The parties involved were heard by the chamber about the possibility of deciding by court order.
Regarding the further submissions of the parties, reference is made to the contents of the court file of the proceedings S 42 AY 4029/20 ER, the court file and the administrative file attached.
REASONS FOR DECISION
The lawsuit is successful.
The legal dispute will be decided by court order pursuant to Section 105 Paragraph 1 of the Social Court Act (SGG) after hearing the parties involved and without oral proceedings, because the facts are clear and the case does not present any particular difficulties of a legal or factual nature.
The defendant's decision of November 20, 2020, as amended by the appeal decision of March 2, 2021, proves to be unlawful and infringes the plaintiff's own rights.
The defendant wrongly bases the contested decisions on Section 9 Paragraph 4 Sentence 1 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Section 48 of the Tenth Book of the Social Code (SGB X) – Social Administrative Procedure and Social Data Protection. The Chamber concurs with the decision of the Higher Social Court of Lower Saxony-Bremen of June 24, 2021 – L 8 AY 20/21 B ER – according to which no significant change in circumstances has occurred. The decision of October 7, 2020 could therefore only have been revoked under the conditions of Section 45 SGB X. However, a reinterpretation fails due to the fact that the defendant did not exercise any discretion.
The decision on costs follows from Section 193 Paragraph 1 of the Social Court Act (SGG).
Pursuant to Section 144 Paragraph 1 Sentence 1 No. 1, Paragraph 2 of the Social Court Act (SGG), the appeal does not require leave to appeal because the defendant's grievance exceeds the threshold of 750 euros.
The following is information on legal remedies.
