DECISION
In the litigation
xxx,
applicant,
Legal representative: Attorney Sven Adam
Lange Geismarstraße 55, 37073 Göttingen
against
Kassel district, represented by the district committee,
supervision and order department,
Wilhelmshöher Allee 19-21, 34117 Kassel
respondent,
The 11th Chamber of the Kassel Social Court, chaired by the judge at the Social Court xxx, decided on January 4, 2022:
By way of an interim order, the respondent is obliged to grant the applicant unreduced benefits in accordance with Sections 3, 3a AsylbLG at the statutory rate from December 1, 2021 until the final decision on the application for review and at the latest until March 31, 2022.
The respondent must bear the applicant's necessary out-of-court costs.
REASONS
I
The applicant is seeking interim legal protection to grant full benefits in accordance with the Asylum Seekers Benefits Act (AsylbLG).
The applicant, who was born in Nigeria on xxx, probably entered the Federal Republic of Germany in the fall of 2001. From the beginning she did not have any ID, passport or other identity documents. From December 29, 2001 she was in custody at the youth detention center in Kaufungen. She applied for asylum there on March 6, 2002. This was rejected as obviously unfounded by the BAMF's (final) decision of March 20, 2002. By decision dated May 16, 2002, the applicant was expelled from the territory of the Federal Republic of Germany in accordance with Sections 45 and 46 of the Aliens Act (former version). The expulsion has not been carried out to date. Despite repeated requests from the immigration authorities, the Nigerian authorities have not yet issued a valid national passport. In the meantime, the applicant stated that she was not from Nigeria, but was born in Sudan and grew up in Sierra Leone. The applicant currently holds a toleration permit according to Section 60 b of the Residence Act, which is valid until February 28, 2022.
For the first time since October 25, 2002, the respondent granted the applicant benefits under the AsylbLG. Due to the applicant's lack of cooperation in obtaining a passport, she received reduced benefits in accordance with Section 1a AsylbLG until April 30, 2020. During the Corona pandemic, no reduction in benefits was made in accordance with Section 1a AsylbLG for the period from May 1, 2020. With the decision dated February 23, 2021, the respondent (still) granted unreduced benefits in accordance with Section 3 and Section 3a AsylbLG in the amount of €364.00 per month. To this end, the respondent covered the accommodation costs for the apartment in xxx occupied by the applicant.
After hearing the applicant beforehand, the respondent granted reduced benefits again in a decision dated September 28, 2021 for the period from October 1, 2021 to March 31, 2022 on the basis of Section 1a Paragraph 3 i. V. m. § 1a Para. 1 S. 2-4 AsylbLG. He explained that the applicant had been asked by the Central Immigration Office of the RP Kassel for many years to obtain the necessary travel documents back home. She did not comply with this request. According to Section 1a Paragraph 3 AsylbLG, the entitlement of those entitled to benefits whose stay cannot be implemented for reasons for which they are responsible must have their entitlement restricted. The abuse of Section 1a Paragraph 3 AsylbLG presupposes that the measures intended by the competent authority to terminate the stay cannot be implemented because of the foreigner's behavior. The applicant was repeatedly informed about the obligation to obtain a passport within the framework of Section 60b Paragraphs 2 and 3 of the Residence Act. The applicant did not fulfill the obligation, even though the Nigerian Consulate General was open despite the corona pandemic. The extent of the restriction on entitlement to benefits arises from Section 1a Paragraph 3 AsylbLG in conjunction with. V. m. § 1 Para. 1 S. 2-4 AsylbLG. Thereafter, those entitled to benefits would only be granted benefits to cover their needs for food and accommodation, including heating and personal and health care, until they leave the country or the deportation is carried out. Instead of €364.00, the applicant received benefits in accordance with Section 1a AsylbLG i. H.v. €192.00 per month. The accommodation costs and the increase in benefits for household energy and apartment maintenance continued to be borne by the respondent, as before.
In a letter dated December 1, 2021, the applicant's legal representative submitted a request to the respondent to review the decision dated September 28, 2021. No decision has yet been made on this application.
In a letter received by the Kassel Social Court on December 1, 2021, the applicant requests that full benefits be granted by way of an interim order. It is argued that, according to the decision of the Federal Constitutional Court of November 5, 2019 (1 BvL 7/16), the reduction in benefits cannot be constitutional. If there are doubts about the constitutionality, a court decision must be made in the interim legal protection procedure as part of the weighing of the consequences. The applicant's constitutionally guaranteed minimum subsistence level is currently not guaranteed. It can therefore be assumed that there is a reason for an order within the meaning of Section 86 Paragraph 2 Sentence 2 of the Social Court Act (SGG). Reducing the standard requirement by more than 50% is in any case incompatible with Article 1 of the Basic Law (GG). In this regard, I agree with the statements of the Kassel Social Court in a decision of September 18, 2021 on file number S 12 AY 14/21 ER and the decision of the Saxony State Social Court in the decision of February 22, 2021 (L 8 AY 9/20 B ER). The reduction in benefits over a long period of time cannot be justified constitutionally.
The applicant accordingly requests
that the respondent be obligated by means of an interim order to temporarily grant her unreduced benefits at the statutory rate until a final decision on the application for review of the decision of September 28, 2021, taking into account the legal opinion of the court.
The respondent requests that
the application be rejected.
He states that the application for interim legal protection cannot be successful. The issuance of an interim order to regulate a temporary situation with regard to a disputed legal relationship is permissible in accordance with Section 86b (2) SGG if such a regulation appears to be necessary to prevent significant disadvantages. The prerequisite for this is that both a reason for an order and a claim for an order have been made credible. These requirements are not met in the present case. There is already no apparent reason for the order. The applicant receives limited benefits in accordance with Section 1a AsylbLG because she persistently refuses to obtain a passport, which is reasonable in accordance with Section 60b Paragraph 3 of the Residence Act, and regularly claims a new country of origin. It is therefore the applicant's responsibility to eliminate the legal consequences of the reduction in benefits by carrying out the cooperation that she has been demanding for years. As a purely precautionary measure, it should also be pointed out that, in the opinion of the respondent, the reduction in entitlement ordered by law in accordance with Section 1a AsylbLG does not lead to an unconstitutional restriction of the fundamental right to be granted a humane minimum subsistence, at least in the event of a subjectively justifiable refusal to cooperate.
For further details, including in the submissions of those involved, reference is made to the content of the court file and the administrative files submitted by the respondent, insofar as this is the subject of the decision.
II.
The issuance of an interim order to regulate a temporary situation with regard to a disputed legal relationship is permitted in accordance with Section 86b Paragraph 2 Sentence 2 SGG if such a regulation appears necessary to prevent significant disadvantages. The prerequisite for the issuance of a regulatory order is always that both a reason for the order (i.e. the urgency of the regulation to avert significant disadvantages) and a claim for an order (i.e. the sufficient probability of a material claim to benefits given in the matter) are substantiated (cf. § 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 interim order, the final decision on the main case should not be anticipated. Due to the requirement to provide effective legal protection (cf. Article 19 Paragraph 4 of the Basic Law - GG), a deviation from this principle is only necessary if, without the requested order, serious or unreasonable disadvantages that cannot be remedied later would arise, which would require a remedy subsequent decision in the main matter would no longer be possible (cf. BVerfG 79, 69 74 mw N.). If it is not possible for the court to fully clarify the factual and legal situation in such urgent proceedings, a decision must be made based on a consideration of the consequences (cf. BVerfG, decisions of May 12, 2005 - 1 BvR 569/05, Rd. No. 19 , 26 and from February 25, 2009 - 1 BvR 120/09, Rd. No. 11, each cited according to juris).
Against this background, the applicant's application, as formulated in the tenor of this decision, is admissible and well-founded as of receipt by the court on December 1, 2021.
With regard to the provisional obligation of the benefit authority to grant unreduced benefits, the adjudicating chamber relies on the statements made by the adjudicating chamber in the decisions of May 5, 2021 (S 11 AY 7/21 ER), of August 25, 2021 (p 11 AY 15/21 ER) and from August 27th. 2021 (S 11 AY 17/21 ER) as well as the statements of the Hessian State Social Court on the need for a constitutional interpretation of Section 1a AsylbLG, especially in cases like the present one, in which the impossibility of implementing measures to end the stay is seen in the lack of cooperation on the part of the benefit recipient. The decisions of the Hessian State Social Court of February 26, 2020 in proceedings L 4 AY 14/19 B ER and of July 26, 2021 in proceedings L 4 AY 19/21 B ER should be mentioned here.
In the present case, the reason for the reduction in benefits in accordance with Section 1a AsylbLG is the applicant's repeated request for years and failure to obtain a passport in order to leave the country of origin, Nigeria. To the extent that the applicant had previously stated that she did not come from Nigeria but rather grew up in Sudan and Sierra Leone, she has recently no longer claimed this. However, the applicant's visit to the Nigerian authority responsible for issuing passports in Germany did not lead to any success. The applicant was unable to provide any proof of identity and it was not possible for the Nigerian authorities to issue a passport. Regarding the problem of the failure to obtain a passport despite a corresponding request from the responsible immigration authority, the Hessian State Social Court stated in the above-mentioned decision of July 26, 2021 (loc. cit.), and in this respect the adjudicating chamber follows these statements that the refusal to participate in the passport procurement, is not fundamentally reprehensible. To the extent that a declaration is required from the responsible passport authority regarding the voluntary departure of an applicant in order to issue a passport, the Hessian State Social Court points out in the above-mentioned decision that such a declaration requested from an applicant is contrary to the applicant's actual wishes cannot be demanded of him and the will as such cannot be influenced by the state. In the present case, since her obligation to leave the country was finally established, the applicant has repeatedly refused to participate in obtaining a passport, partly with reference to a different country of origin and partly with reference to health problems, and has thus also expressed that she does not want to leave the country at all. For this reason alone, with regard to the implementation of the abuse of § 1a AsylbLG, there are doubts as to the respondent's entitlement to reduce benefits for repeated and overall very long benefit periods. The adjudicating chamber also has doubts as to whether deportation to Nigeria is currently even an option. There is no clear statement from the responsible immigration authority on this in the respondent's files. However, the implementation of the abuse of Section 1a Paragraph 3 AsylbLG, which is essential for a reduction in benefits, cannot be affirmed with sufficient certainty in two respects: On the one hand, the failure to obtain a passport is not subjectively reproachable because, on the other hand, it represents a voluntary departure that contradicts the actual will of the applicant from Germany cannot be demanded and, on the other hand, an unconditional intention and finally the current possibility of deportation to Nigeria are doubtful. In addition to the fundamental constitutional problem of a reduction in benefits within the framework of Section 1a AsylbLG, the prerequisites for this will, in the opinion of the adjudicating chamber, not be met at least as of receipt of the applicant's urgent application to the court on December 1, 2021. The reduction in benefits for the applicant cannot therefore be justified in the period specified in this decision.
Despite the finality of the decision dated September 28, 2021 and the application for the granting of interim legal protection, which was submitted to the court only two months after the reduction decision was issued, at the same time as the application for a review of the said final decision, due to the reduction in benefits from the previous €364.00 per month to €192 .00 € per month, i.e. around € 172.00 per month, to affirm the urgency and thus a reason for an order. What is crucial is that the current cuts of almost 50% of the previous benefits cannot meet the requirements set by the Federal Constitutional Court due to the lack of the very narrow legal requirements for this. In any case, the applicant's humane subsistence level is currently not guaranteed.
Since the benefit reduction made by the respondent in the decision of September 28, 2021 is limited to 6 months and the benefit period in dispute is limited to this extent, the court's decision to grant interim legal protection was limited to March 31, 2022.
The cost decision follows from the corresponding application of Section 193 SGG.
The dispute involves the reduction of monthly benefits amounting to €172.00 for four months (December 1, 2021 - application received by the court - until March 31, 2022). So there is only around €688.00 in dispute and the appeal amount of €750.00, which is relevant for main proceedings in accordance with Section 144 SGG, has not been reached. The complaint is therefore excluded in this case in accordance with Section 172 Paragraph 3 No. 1 SGG.
