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 11th Chamber of the Social Court of Kassel, through Judge xxx as Chairwoman, decided on January 4, 2022:
The respondent is ordered by way of an interim injunction to grant the applicant full benefits in accordance with Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) in the legally prescribed amount from 1 December 2021 until a final decision is reached on the review application and for a maximum period until 31 March 2022.
The respondent shall bear the applicant's necessary extrajudicial costs.
REASONS
I.
The applicant seeks, by way of preliminary legal protection, the granting of full benefits under the Asylum Seekers' Benefits Act (AsylbLG).
The applicant, born in Nigeria on [date redacted], presumably entered the territory of the Federal Republic of Germany during the autumn of 2001. From the outset, she was not in possession of any identity documents, such as an identity card, passport, or other identification papers. From December 29, 2001, she was held in pretrial detention at the juvenile detention center in Kaufungen. There, she filed an asylum application on March 6, 2002. This application was rejected as manifestly unfounded by the Federal Office for Migration and Refugees (BAMF) in a (final and binding) decision dated March 20, 2002. By order dated May 16, 2002, the applicant was ordered to leave the territory of the Federal Republic of Germany pursuant to Sections 45 and 46 of the Aliens Act (in its then-current version). The deportation has not been carried out to this day. Despite repeated requests from the immigration authorities, a valid national passport has not yet been issued by the Nigerian authorities. In the meantime, the applicant has stated that she is not from Nigeria, but was born in Sudan and grew up in Sierra Leone. The applicant currently holds a temporary residence permit pursuant to Section 60b 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 Asylum Seekers' Benefits Act (AsylbLG). Due to the applicant's lack of cooperation in obtaining a passport, she most recently received reduced benefits under Section 1a of the AsylbLG until April 30, 2020. During the COVID-19 pandemic, no reduction in benefits under Section 1a of the AsylbLG was applied for the period beginning May 1, 2020. By decision dated February 23, 2021, the respondent granted (still) full benefits under Section 3 or Section 3a of the AsylbLG in the amount of €364.00 per month. In addition, the respondent covered the accommodation costs for the apartment occupied by the applicant in xxx.
Following a prior hearing with the applicant, the respondent, by decision dated September 28, 2021, again granted reduced benefits for the period from October 1, 2021, to March 31, 2022, based on Section 1a Paragraph 3 in conjunction with Section 1a Paragraph 1 Sentences 2-4 of the Asylum Seekers' Benefits Act (AsylbLG). The respondent explained that the applicant had been requested by the Central Immigration Authority of the Kassel Regional Council for many years to obtain the necessary travel documents for her return home. She had failed to comply with this request. According to Section 1a Paragraph 3 of the AsylbLG, the entitlement of benefit recipients must be restricted if deportation measures cannot be carried out for reasons attributable to them. The abuse provision of Section 1a Paragraph 3 of the AsylbLG requires that the deportation measures intended by the competent authority cannot be carried out due to the foreigner's conduct. The applicant was repeatedly informed of her obligation to obtain a passport under Section 60b, paragraphs 2 and 3 of the Residence Act. She failed to comply with this obligation, even though the Nigerian Consulate General remained open despite the COVID-19 pandemic. The extent of the benefit reduction is governed by Section 1a, paragraph 3 of the Asylum Seekers' Benefits Act in conjunction with Section 1, paragraph 1, sentences 2-4 of the Asylum Seekers' Benefits Act. According to this provision, until their departure or deportation, beneficiaries are only granted benefits to cover their basic needs for food, accommodation (including heating), and personal hygiene. Instead of €364.00, the applicant received benefits under Section 1a of the Asylum Seekers' Benefits Act amounting to €192.00 per month. Accommodation costs and the supplementary benefits for household energy and apartment maintenance continued to be covered by the respondent, as before.
By letter dated December 1, 2021, the applicant's legal representative submitted a request to the respondent for a review of the decision dated September 28, 2021. No decision has yet been made on this request.
In a letter received by the Kassel Social Court on December 1, 2021, the applicant requests the granting of full benefits by way of an interim injunction. She argues that, in accordance with the decision of the Federal Constitutional Court of November 5, 2019 (1 BvL 7/16), the benefit reduction cannot be constitutional. In cases of doubt regarding constitutionality, a judicial decision must be made in preliminary injunction proceedings, taking into account the balancing of interests. The applicant's constitutionally guaranteed minimum subsistence level is currently not secured. Therefore, grounds for an injunction within the meaning of Section 86 Paragraph 2 Sentence 2 of the Social Courts Act (SGG) must be assumed. The reduction of the standard benefit by more than 50% is, in any case, incompatible with Article 1 of the Basic Law (GG). In this regard, the reasoning of the Kassel Social Court in its decision of September 18, 2021, file number S 12 AY 14/21 ER, and the decision of the Saxony State Social Court in its ruling of February 22, 2021 (L 8 AY 9/20 B ER), is endorsed. The reduction of benefits over a long period is not constitutionally justifiable.
The applicant essentially requests that
the respondent be ordered, by way of an interim injunction, to grant her full benefits in the statutory amount until a legally binding decision is reached on the application for review of the decision of 28 September 2021, taking into account the legal opinion of the court.
The respondent requests that
the application be rejected.
He argues that the application for preliminary legal protection cannot succeed. The issuance of a preliminary injunction to regulate a provisional state of affairs with regard to a disputed legal relationship is permissible under Section 86b Paragraph 2 of the Social Court Act (SGG) if such regulation appears necessary to avert substantial disadvantages. A prerequisite for this is that both grounds for the injunction and a claim to the injunction have been substantiated. These prerequisites are not met in the present case. No grounds for the injunction are even apparent. The applicant receives restricted benefits pursuant to Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) because she persistently refuses to obtain a passport as required by Section 60b Paragraph 3 of the Residence Act (AufenthG) and regularly claims a new country of origin. Consequently, it is incumbent upon the applicant herself to eliminate the legal consequence of the benefit reduction by performing the act of cooperation that has been demanded of her for years. As a purely precautionary measure, it should also be noted that, in the respondent's opinion, the reduction of benefits ordered by law pursuant to Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) does not lead to an unconstitutional restriction of the fundamental right to a dignified minimum standard of living, at least in cases of subjectively justifiable refusal to perform reasonable acts of cooperation.
For further details, including the submissions of the parties, reference is made to the contents of the court file and the administrative files submitted by the respondent, insofar as these are the subject of the decision.
II.
The issuance of a preliminary injunction to regulate a provisional state of affairs with regard to a disputed legal relationship is permissible pursuant to Section 86b Paragraph 2 Sentence 2 of the Social Court Act (SGG) if such regulation appears necessary to avert substantial disadvantages. A prerequisite for issuing a regulatory injunction is always that both grounds for the injunction (i.e., the urgency of the regulation to avert substantial disadvantages) and a claim for the injunction (i.e., the sufficient probability of a substantive claim to performance) are substantiated (cf. Section 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 preliminary injunction, the final decision in the main proceedings should not be anticipated. Because of the requirement to grant effective legal protection (cf. Art. 19 para. 4 of the Basic Law – GG), a deviation from this principle is only warranted if, without the requested order, serious or unreasonable disadvantages would arise that cannot be remedied later and which a subsequent decision on the merits would no longer be able to eliminate (cf. BVerfG 79, 69 74 with further references). Insofar as a complete clarification of the factual and legal situation is not possible for the court in such preliminary injunction proceedings, a balancing of interests must be carried out (cf. BVerfG, decisions of 12 May 2005 – 1 BvR 569/05, paras. 19, 26 and of 25 February 2009 – 1 BvR 120/09, para. 11, each cited according to juris).
Against this background, the applicant's application is admissible and well-founded from the date of receipt by the court on December 1, 2021, as formulated in the operative part of this decision.
In this regard, the adjudicating chamber bases its decision on the provisional obligation of the benefit authority to grant full benefits on the chamber's previous rulings of May 5, 2021 (S 11 AY 7/21 ER), August 25, 2021 (S 11 AY 15/21 ER) and August 27, 2021 (S 11 AY 17/21 ER), as well as on the Hessian State Social Court's statements on the necessity of a constitutionally compliant interpretation of Section 1a of the Asylum Seekers' Benefits Act (AsylbLG), particularly in cases such as the present one, where the impossibility of terminating residence measures is seen in the lack of cooperation of the benefit recipient. The decisions of the Hessian State Social Court of 26 February 2020 in case L 4 AY 14/19 B ER and of 26 July 2021 in case L 4 AY 19/21 B ER should be mentioned here.
The reason for the reduction in benefits under Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) is the applicant's repeated and unfulfilled request, over several years, to obtain a passport for departure to her country of origin, Nigeria. While the applicant had previously stated that she was not from Nigeria, but rather from Sudan and had grown up in Sierra Leone, she has recently retracted this claim. However, the applicant's visit to the Nigerian authority responsible for issuing passports in Germany was unsuccessful. The applicant was unable to provide any proof of identity, and issuing a passport was not possible at the Nigerian authority. Regarding the issue of failing to obtain a passport despite a corresponding request from the responsible immigration authority, the Hessian State Social Court addressed this problem in its decision of July 26, 2021 (loc. cit.), and the present chamber concurs with this reasoning, concluding that the refusal to cooperate in obtaining a passport is not inherently reprehensible. Insofar as the competent passport authority requires a declaration from the applicant regarding the voluntary nature of their departure for the issuance of a passport, the Hessian State Social Court points out in the aforementioned decision that such a declaration cannot be demanded of an applicant against their actual will, and that the will itself cannot be influenced by the state. In the present case, since the legally binding determination of her obligation to leave the country, the applicant has repeatedly refused to cooperate in obtaining a passport, sometimes citing a different country of origin, sometimes citing health problems, thereby also expressing her unwillingness to leave the country. Therefore, with regard to the fulfillment of the elements of the abuse of benefits under Section 1a of the Asylum Seekers' Benefits Act (AsylbLG), doubts exist as to the respondent's justification for reducing benefits for repeated and, overall, very long periods. The court also has doubts as to whether deportation to Nigeria is even a possibility at present. The respondent's files do not contain a clear statement from the responsible immigration authority on this matter. Consequently, the fulfillment of the criteria for abuse under Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG), which is indispensable for a benefit reduction, cannot be affirmed with sufficient certainty in two respects: Firstly, the failure to obtain a passport is not subjectively attributable to the applicant, because, on the one hand, voluntary departure from Germany contrary to the applicant's actual will cannot be demanded, and on the other hand, the applicant's unconditional intention and the current possibility of deportation to Nigeria are doubtful. In addition to the fundamental constitutional issues surrounding a benefit reduction under Section 1a AsylbLG, the court is of the opinion that the prerequisites for such a reduction are not met, at least from the date the applicant's application for preliminary relief was received by the court on December 1, 2021. Therefore, the benefit reduction for the applicant is not justified for the period specified in this decision.
Despite the finality of the decision of September 28, 2021, and the fact that the application for preliminary legal protection was filed with the court only two months after the issuance of the reduction notice, simultaneously with the application for review of the aforementioned final decision, the reduction of benefits from €364.00 per month to €192.00 per month, i.e., by €172.00 per month, constitutes urgency and thus grounds for an injunction. Crucially, the current reductions of approximately 50% of the previous benefits cannot meet the requirements established by the Federal Constitutional Court, due to the absence of the very narrowly defined legal prerequisites for such reductions. The applicant's dignified minimum standard of living is, at least for the time being, not guaranteed.
Since the benefit reduction imposed by the respondent in the decision of 28 September 2021 is limited to 6 months and the benefit period in dispute is limited accordingly, the court's decision to grant preliminary legal protection was to be limited until 31 March 2022.
The decision on costs follows from the corresponding application of Section 193 of the Social Court Act (SGG).
The dispute concerns the reduction of monthly benefits by €172.00 for four months (December 1, 2021 – date of application to the court – until March 31, 2022). Therefore, only approximately €688.00 is in dispute, and the minimum amount in dispute for an appeal on the merits, €750.00 pursuant to Section 144 of the Social Court Act (SGG), is not reached. Consequently, an appeal is inadmissible in this case pursuant to Section 172 Paragraph 3 No. 1 of the Social Court Act (SGG).
