DECISION
In the legal dispute
1. xxx,
2. xxx,
residing at: xxx
– Applicant –
Regarding points 1 and 2, the legal representative is:
Law firm
Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
Eichsfeld District,
represented by the District Administrator,
Friedensplatz 8, 37308 Heilbad Heiligenstadt
– Respondent –
The 15th Chamber of the Social Court of Nordhausen, through its presiding judge, Judge xxx, decided without oral proceedings on December 17, 2021:
1. The respondent is ordered by way of preliminary injunction to grant the applicants, provisionally subject to the right of recovery, the requested benefits of standard benefit level 2 pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act, in full for the period from July 7, 2021 to December 31, 2021.
2. The respondent shall bear the applicant's necessary extrajudicial costs.
REASONS
I.
The applicants request the provisional granting of higher benefits under the Asylum Seekers' Benefits Act (AsylbLG) for the period from July 1, 2021 to December 31, 2021.
According to the available documents, the applicants are Afghan nationals and hold international protection status in Greece.
According to their statements, the applicants entered the Federal Republic of Germany with their 3 children on February 19, 2020.
The applicants submitted an asylum application on April 22, 2020.
On May 19, 2020, the applicants applied for benefits to secure their livelihood under the Asylum Seekers' Benefits Act, which were subsequently granted by the respondent.
By letter dated December 1, 2020, the respondent notified the applicants of the reduction in their benefits. Their asylum application had been rejected as inadmissible because they had been granted lawful international protection status in Greece. Therefore, it was intended to reduce their benefits as of December 1, 2020, pursuant to Section 1a Paragraph 4 in conjunction with Section 3 of the Asylum Seekers' Benefits Act (AsylbLG). According to Section 1a Paragraph 4 of the AsylbLG, those entitled to benefits under Section 1 Paragraph 1 Number 1 or 5, whose asylum application had been rejected as inadmissible by a decision of the Federal Office for Migration and Refugees pursuant to Section 29 Paragraph 1 Number 1 in conjunction with Section 31 Paragraph 6 of the Asylum Act and for whom deportation had been ordered pursuant to Section 34a Paragraph 1 Sentence 1, second alternative, of the Asylum Act, only receive benefits in accordance with Paragraph 1. Sentence 1 does not apply if a court has ordered the suspension of the deportation order. In the event of a potential benefit reduction under this regulation, the parents' cash benefits would generally be reduced to the minimum, and all necessary personal support services would be withdrawn. If actual costs arise for necessary personal support services that are indispensable for comprehensible and demonstrable reasons, these costs must be submitted with a corresponding justification.
Following the approval of reduced benefits for the period from January 1, 2021 to June 30, 2021 by decision of December 17, 2020, no further hearing regarding a further reduction of benefits can be found in the files.
By a benefit notice dated June 23, 2021, the respondent granted the applicants' household benefits under the Asylum Seekers' Benefits Act in the amount of €1,539.00 for the months of July and September through December 2021, and in the amount of €2,248.00 for the month of August 2021. These are benefits reduced in accordance with Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act. This reduction effectively eliminated all necessary personal expenses, as the applicants had failed to demonstrate which of the specified departments were required. The reduction is limited to six months and will be reviewed thereafter.
By letter from their legal representative dated July 6, 2021, the applicants filed an objection to the respondent's decision of June 23, 2021. They argued that the reduction of benefits under Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) was unlawful. They asserted that concerns already existed with regard to the principle of equal treatment. The persons named in Section 1a Paragraphs 1-3 of the AsylbLG were being accused of specific, self-inflicted misconduct under immigration law, to which the benefit restrictions were linked. Furthermore, they argued that the reduction was unconstitutional in light of the Federal Constitutional Court's decision of November 5, 2018. With the exception of leaving the country, the applicants had no other means of preventing the sanction.
The applicant, through his legal representative, filed a request for preliminary legal protection on July 6, 2021, with the Nordhausen Social Court on July 7, 2021. He argued that he had a right to an injunction. The imposed sanction was unlawful, he claimed. The legal basis for the sanction was incompatible with the Federal Constitutional Court's ruling on sanctions for benefits under Book II of the German Social Code (SGB II). Therefore, at least in the context of weighing the consequences, the benefit reduction should be suspended until the outcome of the main proceedings. Furthermore, the reduction of the standard benefit by more than 50% was incompatible with Article 1 of the Basic Law (German Constitution). He argued that he had a right to an injunction because his subsistence minimum was no longer guaranteed. He maintained that if subsistence-level benefits were unavailable, grounds for an injunction generally existed. The applicants were not required to prove that they actually needed the denied subsistence minimum. The standard benefit should be paid as a lump sum. Even the basic needs allowance under the German Social Code, Book II (SGB II), is already at the constitutional limit of what is still suitable to meet constitutional requirements. Therefore, even the standard needs allowance level 1 under the Asylum Seekers' Benefits Act is constitutionally questionable. This applies all the more to the reduction that has been implemented.
The applicant requests that
the respondent be ordered, by way of an interim injunction, to grant the applicants provisionally and subject to the right of recovery until a final and binding decision is reached on the applicants' objection of July 6, 2021, against the respondent's decision of June 23, 2021, taking into account the legal opinion of the court, the requested benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) from the date of receipt of this application by the court.
The respondent requests that
the application for an interim injunction be rejected.
The applicants have a right of residence in Greece. For beneficiaries who have already been granted international protection or a right of residence for other reasons by another EU member state or a third country participating in the distribution mechanism within the meaning of paragraph 1, benefits are reduced if the international protection or the right of residence granted for other reasons remains in effect. This is the case here. The decision complies with the legal requirements. During the hearing, the applicants were given the opportunity to demonstrate a specific, necessary personal need to be taken into account when granting benefits. No such information was provided. The current total reduction for the applicants amounts to €292 (2 x €146). This corresponds to a percentage of 16% of the benefit amount paid.
For further details of the facts and the legal arguments, reference is made to the court files of the present proceedings and the administrative file of the respondent.
II.
The application is admissible and well-founded.
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 to 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)). The requirements for substantiation are lower the more severe the burdens associated with the denial of preliminary legal protection are, particularly with regard to their significance for the applicant's fundamental rights (Federal Constitutional Court, Decision of November 22, 2002, 1 Bv12 1586/02). In principle, due to the provisional nature of an interim injunction, the final decision in the main proceedings should not be anticipated. However, because of the requirement to grant effective legal protection (cf. Art. 19 para. 4 of the Basic Law), a deviation from this principle is necessary if, without the requested injunction, serious and unreasonable disadvantages would arise that cannot be remedied later and that a subsequent decision in the main proceedings would no longer be able to eliminate (cf. BVerfGE 79, 69, 74 with further references). Art. 19 para. 4 of the Basic Law places particular demands on the design of the preliminary injunction proceedings. In cases of imminent serious or unreasonable disadvantages, the courts must protect and promote the fundamental rights of the individual (Federal Constitutional Court, Decision of February 25, 2009 – 1 BvR 120/09 – NZS 2009, 674 with further references). If, however, the court is unable to fully clarify the facts and the legal situation in expedited proceedings, a decision must be made based on a balancing of interests. In this case as well, the applicant's fundamental rights must be fully considered in the balancing process.
In the present case, grounds for an injunction in favor of the applicants exist. Such grounds exist if it would be unreasonable for the applicant to be required to wait for the (legally binding) conclusion of the main proceedings, taking into account the consequences of not granting the requested preliminary injunction. For example, an applicant's state of health or their financial or economic situation may, upon balancing of interests, justify the existence of grounds for an injunction if otherwise serious and unreasonable disadvantages would arise that could not be averted in any other way and which the decision in the main proceedings would not be able to remedy. The applicants can invoke grounds for an injunction here because they are claiming subsistence benefits, the granting of which they cannot wait for until the final and binding conclusion of the main proceedings, as they would face serious and unreasonable disadvantages in this case (see Social Court of Hanover, decision of December 20, 2019 — S 53 AY 107/19 ER).
In the present case, a claim for an injunction must also be affirmed as a result.
According to Section 3 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG), those entitled to benefits under Section 1 receive benefits to cover their needs for food, accommodation, heating, clothing, healthcare, and household goods and consumables (essential needs). In addition, they receive benefits to cover their personal needs of daily life (essential personal needs). For children, adolescents, and young adults, needs for education and participation in social and cultural life within the community are considered separately, in addition to the benefits under Paragraphs 1 to 3, in accordance with Sections 34, 34a, and 34b of the German Social Code, Book XII (SGB XII) (Section 3 Paragraph 4 AsylbLG). The amount of these benefit rates is regulated in Section 3a AsylbLG.
In the present case, these benefits were reduced by the respondent pursuant to Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG). According to Section 1a Paragraph 4 Sentence 2 of the AsylbLG, persons entitled to benefits under Section 1 Paragraph 1 Number 1 or 1a of the AsylbLG who have already been granted international protection or a right of residence for other reasons by another Member State of the European Union or by a third country participating in the distribution mechanism within the meaning of Sentence 1, receive benefits under Section 1a Paragraph 1 of the AsylbLG, i.e., only benefits to cover their needs for food and accommodation, including heating, as well as personal hygiene and healthcare, provided that the international protection or the right of residence granted for other reasons remains in effect. It must be conceded that the requirements of the legal provision in Section 1a Paragraph 4 Sentence 2 of the AsylbLG are met, since the applicants were granted international protection in Greece and it has not been argued that this protection no longer exists. However, concerns exist insofar as the constitutionality of the provision requires, as an unwritten element of the offense, that the applicants must have committed specific misconduct. Neither the hearing nor the decision specifies which particular misconduct is to be sanctioned. This is necessary, however, because only in this way can the required review of the sanction be conducted after the six-month period has expired. It is to the applicants' detriment that they have not argued that a return to Greece is impossible for legal or factual reasons, nor that corresponding official or judicial decisions have been applied for or are pending.
However, the legality of the benefit reductions pursuant to Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG) cannot be conclusively determined due to significant constitutional concerns regarding both the reduction regulations and the calculation of the standard benefit rates (see Social Court Landshut, Decision of October 24, 2019 – S 11 AY 64/19 ER –; Social Court Hanover, Decision of December 20, 2019 – S 53 AY 107/19 ER –; Social Court Freiburg, Decision of January 20, 2020 – S 7 AY 5235/19 ER). The court assumes that the question of the constitutionality of the benefit restrictions under the Asylum Seekers' Benefits Act, as well as the question of the constitutionality of the standard benefits granted under this Act – particularly in light of recent developments in case law – cannot be definitively resolved within the framework of preliminary legal protection proceedings. It can remain an open question whether, in the sense of a constitutionally compliant interpretation or a teleological reduction of the elements of the offense, an unwritten element of the offense should be provided to achieve the constitutionality of the reduction regulation, such that the return of the person concerned to the country granting protection must be possible and reasonable for factual and legal reasons (cf. Lower Saxony Higher Social Court, decision of November 19, 2019 – L 8 AY 26/19 B ER –; North Rhine-Westphalia Higher Social Court, decision of March 27, 2020 — L 20 AY 20/20 B ER —, juris; Schleswig Higher Social Court, decision of June 15, 2020 — L 9 AY 78/20 B ER –;), as these circumstances must in any case be taken into account within the framework of preliminary legal protection by way of a balancing of consequences and interests.
The necessary balancing of interests and consequences weighs in favor of the applicants in this case. The consequences that would ensue if the preliminary injunction were not granted and the lawsuit were later successful are significantly more serious than the consequences that would arise if the requested preliminary injunction were granted but the lawsuit were unsuccessful. If the preliminary injunction were not granted, there would be a risk of a substantial shortfall in the applicants' subsistence benefits. Conversely, the respondent faces the risk of granting the applicants benefits to which they are not entitled, resulting in an overpayment. However, the respondent can reclaim this overpayment if they prevail in the main proceedings and, if necessary, assert it by way of set-off. Therefore, the court here weighs the potential existential hardship of the applicants more heavily than the risk of overpayments by the respondent. In favor of the respondent, it must be taken into account that the legal requirements for a reduction of standard benefits—as explained above—are met. Furthermore, the limitation of the benefit restriction to six months, as required by Section 14 of the Asylum Seekers' Benefits Act (AsylbLG), has been fulfilled. It must also be taken into account in favor of the respondent that the applicants have not alleged that they have obtained any official or judicial decisions against their obligation to return to Greece.
However, the circumstances in favor of the applicants outweigh the disadvantages. For example, a reasonable possibility of return to Greece for the applicants cannot be affirmed. In this respect as well, a possibility of departure must be established. Contrary to the statements in the appeal decision, the accessibility of the country by plane, bus, or train is not the sole determining factor. Rather, it must be examined in light of constitutional law whether the possibility of return without violating human dignity is reasonable. Regarding the possibility of returning to Greece, it must be assumed that such a return is unreasonable for the applicants, at least with regard to their children (see Lower Saxony Higher Social Court, decision of November 19, 2019 – L 8 AY 26/19 B ER – with further references; North Rhine-Westphalia Higher Social Court, decision of March 27, 2020 — L 20 AY 20/20 B ER —, juris; Schleswig Higher Social Court, decision of June 15, 2020 — L 9 AY 78/20 B ER -; Würzburg Administrative Court, judgment of July 19, 2019 – W 2 K 18.30717 — juris; Gelsenkirchen Administrative Court, judgment of September 16, 2019 – 5a K 2772/19.A – juris; Saarland Administrative Court, judgment of September 20, 2019 – 3 K 1222/18 – and – 3 K 2100/18 – juris; Administrative Court Magdeburg, Judgment of October 10, 2019 – 6 A 390/19 – juris; Administrative Court Oldenburg (Oldenburg), Judgment of November 20, 2019 — 11 A 265/19 juris; Administrative Court Cologne, Judgment of November 28, 2019 – 20 K 2489/18.A -; Higher Administrative Court Bremen, Decision of August 29, 2019 - 1 LA 150/19 — juris; Higher Administrative Court North Rhine-Westphalia, Judgments of January 21, 2021 - 11 A 1564/20, 11 A 2982/20 A -; Higher Administrative Court Schleswig, Decision of February 16, 2021 — 4 LA 259/19 -; Higher Administrative Court Koblenz, Decision of March 25, 2021 — 7 B 10450/21 -; (Higher Administrative Court of Lüneburg, judgment of April 19, 2021 — 10 LB 244/20, 10 LB 245/20 juris; Social Court of Cottbus, decision of January 28, 2020 — S 21 AY 34/19 ER —, juris). Against this background, potential preliminary injunction proceedings before the administrative court do not appear to be hopeless from the outset. Therefore, it is currently unreasonable to expect the applicants to leave the country. Their continued presence in Germany does not constitute a breach of duty that could justify infringements on their subsistence level. This is particularly true because a final decision on their asylum application has not yet been reached.
Furthermore, there are significant concerns regarding the constitutionality of the relevant provisions of the Asylum Seekers' Benefits Act (AsylbLG) (see, among others: Higher Social Court of North Rhine-Westphalia, decision of March 27, 2020 – L 20 AY 20/20 B ER –, juris; Higher Social Court of Lower Saxony, decision of November 19, 2019 – L 8 AY 26/19 B ER – with further references, each with additional evidence). This applies first and foremost to the reduction provision in Section 1a Paragraph 4 of the AsylbLG. While some legal opinions suggest that a constitutionally compliant interpretation is possible, requiring specific, self-inflicted misconduct under immigration law as an unwritten element of the offense, this cannot be accepted based on the foregoing, regardless of the fact that the respondent has not specified the misconduct.
Furthermore, in its referral decision of January 26, 2021, the Lower Saxony-Bremen State Social Court also referred the question of the constitutionality of the standard benefits for asylum seekers themselves to the Federal Constitutional Court for review (see Lower Saxony-Bremen State Social Court, decision of January 26, 2021 — L 8 AY 21/19 —, juris). Although this referral decision concerns the monetary amounts set for the year 2018, it raises numerous, including methodological, concerns that are also of central importance for the currently applicable version.
Also due to the referral decision of the Social Court of Düsseldorf (SG Düsseldorf, referral decision of April 13, 2021 — S 17 AY 21/20 —, juris), the Federal Constitutional Court will have to deal with the benefit system of the Asylum Seekers' Benefits Act in the preceding case 1 BvL 3/21.
In contrast, the decision of the Federal Constitutional Court of 12 May 2021, in which a constitutional complaint against an earlier version of Section 1a of the Asylum Seekers' Benefits Act was not accepted for decision (see Federal Constitutional Court, decision of 12 May 2021 – 1 BvR 2682/17 – ), is not of decisive importance, because the substantive legal questions were not addressed.
Finally, the prohibition against prejudging the merits of the case does not preclude the requested order. While it is true that, as a rule, a preliminary injunction, taking advantage of the simplified review of the facts and the law, may not prejudge the outcome of potential main proceedings, since otherwise applicants could use the preliminary injunction proceedings to circumvent main proceedings, and subsequent reversal of the payments would often prove unlikely to succeed, an exception to this prohibition is warranted in exceptional circumstances. This exception applies when there is a high probability of success in main proceedings and the applicant would otherwise face severe and unreasonable disadvantages due to the passage of time, disadvantages that could not be remedied later, or only with great difficulty. Based on this, such an exceptional situation exists in the present case. Success in the main proceedings is highly probable. The concerns raised during the amendment of the Asylum Seekers' Benefits Act regarding the constitutionality of the level of standard benefits and the further possibilities for reductions have since been taken up not only by numerous legal scholars but also by the courts. Due to the referrals to the Federal Constitutional Court, a binding clarification of the relevant issues is not expected for a considerable period of time, a period that applicants cannot reasonably be expected to wait. In contrast, the economic risk of potentially being unable to recover any overpayments is negligible.
The court further notes that the relevant benefit notice contains no explanation as to why an extension of the sanction could achieve the objective of the measure, given that this objective was not achieved after the initial reduction of six months. Moreover, a further hearing would likely be necessary, particularly in light of this consideration, and such a hearing is not evident from the available file.
The decision on costs follows from § 193 SGG.
The following is information on legal remedies.
