DECISION
In the litigation
1. xxx,
2. xxx,
residing at 1 and 2: xxx
– Applicant –
for 1 and 2 Legal representative:
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 Nordhausen Social Court decided through its chairman, Judge at the Social Court xxx, without an oral hearing on December 17, 2021:
1. The respondent is obliged by way of an interim order to provisionally provide the applicants with the requested benefits of standard level 2 according to Sections 3, 3a of the Asylum Seekers Benefits Act, subject to repayment, in full for the period from July 7, 2021 to December 31, 2021 to grant.
2. The respondent must bear the applicant's necessary out-of-court costs.
REASONS
I
The applicants are requesting the provisional grant 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 have international protection status in Greece.
According to their information, the applicants entered the Federal Republic of Germany with their 3 children on February 19, 2020.
On April 22, 2020, the applicants submitted an asylum application.
On May 19, 2020, the applicants applied for approval of benefits to secure their livelihood in accordance with the Asylum Seekers Benefits Act, which were subsequently approved by the respondent.
In a letter dated December 1, 2020, the respondent heard the applicants about reducing their benefits. Their asylum application was rejected as inadmissible because they had received legal international protection status in Greece. It is therefore intended to reduce benefits in accordance with Section 1a Paragraph 4 in conjunction with Section 3 AsylbLG on December 1, 2020. According to § 1 a paragraph 4 AsylbLG, those entitled to benefits according to § 1 paragraph 1 number 1 or 5 whose asylum application was deemed inadmissible by a decision of the Federal Office for Migration and Refugees according to § 29 paragraph 1 number 1 in conjunction with § 31 paragraph 6 of the Asylum Act received benefits was rejected and for whom a deportation was ordered in accordance with Section 34a Paragraph 1 Sentence 1 2nd Alternative of the Asylum Act, only benefits in accordance with Paragraph 1. Sentence 1 does not apply if a court has ordered the suspensive effect of the action against the deportation order. In the event of a possible reduction in benefits according to this standard, the parents' cash benefits would generally be reduced to the minimum and all necessary personal benefits would be withdrawn. If actual costs arise for the necessary personal services, which are indispensable for understandable and explainable reasons, these costs must be submitted with appropriate justification.
After reduced benefits were approved for the period from January 1, 2021 to June 30, 2021 in the decision of December 17, 2020, the files do not indicate a further hearing on a further reduction in benefits.
With a benefit notice dated June 23, 2021, the respondent approved the applicants' community of needs benefits under the Asylum Seekers Benefits Act in the amount of €1,539.00 for the months of July and September to December 2021 and in the amount of €2,248.00 for the month of August 2021. This is the case refers to benefits reduced in accordance with Section 1a Paragraph 4 AsylbLG. This meant that all necessary personal needs were withdrawn because the applicants had not proven which of the departments described were needed. The reduction is limited to 6 months and will then be re-examined.
In a letter from their legal representative dated July 6, 2021, the applicants objected to the respondent's decision of June 23, 2021. The reduction in benefits in accordance with Section 1a Paragraph 4 AsylbLG is unlawful. There are already concerns with regard to the principle of equal treatment. The persons named in Section 1a Paragraph 1-3 AsylbLG are accused of specific misconduct under immigration law for which they are responsible, which is linked to the restrictions on benefits. In addition, the reduction is unconstitutional in view of the Federal Constitutional Court's decision of November 5, 2018. With the exception of leaving the country, the applicants have no option to avoid the sanction.
The applicant requested the granting of interim legal protection in a letter from his legal representative dated July 6, 2021, received at the Nordhausen Social Court on July 7, 2021. There is a right to order. The sanction imposed is not legal. The basis for the authorization is not compatible with the Federal Constitutional Court's decision on sanctions for SGB II benefits. In any case, as part of the assessment of the consequences, the reduction in benefits should be suspended until the outcome of the main case. In addition, reducing the standard requirement by more than 50% is not compatible with Article 1 of the Basic Law. There is a right to an order because the applicant's subsistence level is no longer guaranteed. If subsistence benefits are not available, it can generally be assumed that there is a reason for an order. The applicants are not obliged to justify the fact that the subsistence level denied to them is actually needed. The standard requirement should be paid out as a total lump sum. Even the basic requirements according to SGB II are constitutionally at the limit of what is still suitable for fulfilling the constitutional requirements. Therefore, the standard level 1 requirement under the Asylum Seekers Benefits Act is already constitutionally questionable. This applies especially to the reduction made.
The applicant requests that the respondent
be obliged, by way of an interim order, to provide the applicants with provisional and subject to repayment pending a final decision on the applicant's objection of July 6, 2021 against the respondent's decision of June 23, 2021 the legal opinion of the court to grant the requested benefits in accordance with Sections 3, 3a AsylbLG from the date of receipt of this application to the court.
The respondent requests that
the application for an interim injunction be rejected.
The applicants would have a right of residence in Greece. For those entitled to benefits who have already been granted a right of residence by another Union state or by a third country participating in the distribution mechanism within the meaning of sentence 1 or for other reasons, benefits will be restricted if the international protection or the right of residence granted for other reasons continues . This is the case in the present case. The decision corresponds to the legislative requirements. Already during the hearing, the applicant was given the opportunity to demonstrate a specific, necessary personal need in order to be taken into account when granting benefits. No corresponding information was provided. The current total reduction for applicants is €292 (2 x €146). With regard to the benefit amount paid out, this corresponds to a percentage of 16%.
For further details of the facts and the dispute, reference is made to the court files of the present proceedings and the administrative files of the respondent.
II.
The application is admissible and justified.
The issuance of an interim order is permissible to regulate a temporary situation with regard to a disputed legal relationship in accordance with Section 86 b (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 credibly demonstrated (cf. § 86 b Paragraph 2 Sentence 4 SGG in conjunction with Section 920 Paragraph 2 ZPO). The greater the burden associated with the denial of provisional legal protection, the lower the requirements for credible evidence are, particularly with regard to their importance for the fundamental rights of the applicant (BVerfG, decision of November 22, 2002, 1 Bv12. 1586/02 ). In principle, due to the provisional nature of the interim order, the final decision on the main case should not be anticipated. Because of the requirement to provide effective legal protection (cf. Article 19 Paragraph 4 of the Basic Law), a deviation from this principle is necessary if, without the requested order, serious and unreasonable disadvantages that cannot be remedied later would arise, which would be remedied by a subsequent order would no longer be able to make a decision on the main issue (cf. BVerfGE 79, 69, 74 with further references). Art 19 Paragraph 4 GG places special requirements on the design of the expedited procedure. In the event of impending serious or unreasonable disadvantages, the courts must protect and promote the basic rights of the individual (BVerfG, Bv February 25, 2009 - 1 BvR 120/09 - NZS 2009, 674 with further references). If, on the other hand, the court is unable to fully clarify the factual and legal situation in an expedited procedure, a decision must be made based on a consideration of the consequences. In this case too, the applicant's fundamental rights concerns must be carefully considered.
In the present case there is a reason for an order in favor of the applicants. The reason for an order exists if it appears unreasonable for the applicant to be referred to the (legal) conclusion of the main proceedings, whereby consideration must be given to the consequences in the event that the requested interim order is not issued. For example, the state of health or the financial or economic situation of an applicant can, by means of a balancing of interests, be suitable to establish the existence of a reason for regulation if otherwise serious and unreasonable disadvantages that cannot be avoided otherwise would arise, the subsequent elimination of which is the decision in the main case wouldn't be able to. The applicants can rely on a reason for an order here because they are claiming subsistence benefits for which they cannot wait until the main proceedings have been legally concluded, as in this case they would be threatened with serious and unreasonable disadvantages (cf. SG Hannover, decision of December 20, 2019 — S 53 AY 107/19 ER).
In the present case, a claim for an order must also be affirmed.
According to Section 3 Paragraph 1 AsylbLG, those entitled to benefits in accordance with Section 1 receive benefits to cover the needs for food, accommodation, heating, clothing, health care and household household goods and consumables (necessary needs). In addition, they are granted benefits to cover the personal needs of everyday life (necessary personal needs). Needs for education and participation in social and cultural life in the community are taken into account separately for children, young people and young adults in addition to the services according to paragraphs 1 to 3 in accordance with Sections 34, 34a and 34b SGB XII (Section 3 Paragraph 4 AsylbLG ). The amount of the requirement rates is regulated in Section 3a AsylbLG.
In the present case, these benefits were reduced by the respondent in accordance with Section 1a Paragraph 4 AsylbLG. According to Section 1 a Paragraph 4 Sentence 2 AsylbLG, those entitled to benefits pursuant to Section 1 Paragraph 1 No. 1 or 1 a AsylbLG who have already received international protection from another member state of the European Union or from a third country participating in the distribution mechanism within the meaning of sentence 1 or a right of residence has been granted for other reasons, benefits according to Section la Paragraph 1 AsylbLG, i.e. only benefits to cover their needs for food and accommodation including heating as well as personal and health care, if international protection or the right of residence granted for other reasons continues. The respondent must admit that the requirements of the legal offense in Section 1a Paragraph 4 Sentence 2 AsylbLG are met, since the applicants were granted international protection in Greece and it was not stated that this protection would no longer exist. However, there are concerns insofar as, in order to ensure the constitutionality of the norm, it is required as an unwritten element of the offense that there must be specific misconduct on the part of the applicant. It is not clear from the hearing or from the decision which specific misconduct should be sanctioned. However, this is necessary because this is the only way to review the sanction, which is required after the six-month period has expired. The applicants are disadvantaged by the fact that they have not stated that a return to Greece is not possible for legal or factual reasons and that corresponding official or judicial decisions have been requested or exist.
However, the legality of the benefit reductions in accordance with Section 1a Paragraph 4 Sentence 2 AsylbLG cannot be conclusively determined due to significant constitutional concerns regarding both the reduction regulations and the assessment of the standard rates (see SG Landshut, decision of October 24, 2019 - S 11 AY 64/19 ER -; SG Hannover, decision of December 20, 2019 - S 53 AY 107/19 ER -; SG 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 law - in particular due to the development of case law in recent weeks - cannot be addressed in the context of an interim legal protection procedure can be provided for final clarification. It can remain an open question whether, in the sense of a constitutionally compliant interpretation or a teleological reduction of the offense in order to achieve constitutional conformity of the reduction regulation, an unwritten element of the offense must be provided to the effect that it is possible and reasonable for those affected to return to the country granting protection for factual and legal reasons must (see LSG Lower Saxony, decision of November 19, 2019 - L 8 AY 26/19 B ER -; State Social Court of North Rhine-Westphalia, decision of March 27, 2020 - L 20 AY 20/20 B ER -, juris; LSG Schleswig, decision of June 15, 2020 — L 9 AY 78/20 B ER -;), as these circumstances must be taken into account in the context of interim legal protection by weighing up the consequences and interests.
In the present case, the consequences and interests to be weighed up are in favor of the applicants. The weighing up of the consequences that would arise if the urgent decision were not made and the lawsuit were later successful are much more serious than the consequences that would arise if the requested urgent decision were issued but the lawsuit was unsuccessful. If the urgent decision were not made, there would be a risk of a significant underfunding of living benefits for the applicants. On the other hand, on the respondent's side there is a risk that the applicants will be granted benefits to which they are not entitled and thus an overpayment will occur. However, the respondent can demand this back if the main action is successful and, if necessary, also assert it by way of offsetting, so that the court gives greater weight to the possible existential distress of the applicant 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 in standard benefits - as explained above - are met. The limitation of the claim to six months as required by Section 14 AsylbLG has also been implemented. In favor of the respondent, it must also be taken into account that the applicants have not stated that they have brought about official or judicial decisions contrary to their obligation to return to Greece.
However, the circumstances in favor of the applicants outweigh this. This means that the possibility of returning to Greece that is reasonable for the applicants cannot be affirmed. In this respect, a possibility of leaving the country must also be determined. Contrary to what is stated in the objection decision, it is not just the accessibility of the country by plane, bus or train that is decisive. Rather, it must be examined in the light of constitutional law whether the possibility of return without violating human dignity is reasonable. With regard to the possibility of returning to Greece, it can be assumed that this is unreasonable for the applicants, at least with regard to their children (see LSG Lower Saxony, decision of November 19, 2019 - L 8 AY 26/19 B ER - mwN; LSG NRW, Decision of March 27, 2020 — L 20 AY 20/20 B ER —, juris; LSG Schleswig, decision of June 15, 2020 — L 9 AY 78/20 B ER -; VG Würzburg, judgment of July 19, 2019 – W 2 K 18.30717 — juris; VG Gelsenkirchen, judgment of September 16, 2019 – 5a K 2772/19.A – juris; VG Saarland, judgment of September 20, 2019 – 3 K 1222/18 – and – 3 K 2100/18 – juris; VG Magdeburg, judgment of October 10, 2019 - 6 A 390/19 - juris; VG Oldenburg (Oldenburg), judgment of November 20, 2019 - 11 A 265/19 juris; VG Cologne, judgment of November 28, 2019 - 20 K 2489/18.A -; OVG Bremen, decision of August 29, 2019 -1 LA 150/19 — juris; OVG NRW, judgments of January 21, 2021- 11 A 1564/20, 11 A 2982/20 A - ; OVG Schleswig, decision of February 16, 2021 — 4 LA 259/19 -; OVG Koblenz, decision of March 25, 2021 — 7 B 10450/21 -; OVG Lüneburg, judgment of April 19, 2021 — 10 LB 244/20, 10 LB 245/20 juris; SG Cottbus, decision of January 28, 2020 — S 21 AY 34/19 ER —, juris). Against this background, a possible urgent administrative court procedure does not appear to be hopeless from the outset. The applicants cannot currently be expected to leave the country. The fact that the applicant is staying in the federal territory does not constitute conduct contrary to duty that could justify interference with the subsistence level. Particularly because a final decision has not yet been made on her asylum application.
In addition, there are considerable concerns about the constitutionality of the regulations of the AsylbLG that are relevant here (see, among others: LSG NRW, decision of March 27, 2020 - L 20 AY 20/20 B ER -, juris; LSG Niedersachsen, decision of November 19, 2019 – L 8 AY 26/19 B ER — mwN each with further evidence). This initially applies to the reduction regulation in Section 1a Paragraph 4 AsylbLG. Insofar as it is sometimes held in the case law that a constitutionally compliant interpretation should be possible, according to which concrete, self-responsible misconduct under immigration law is required as an unwritten element of the offense, this can - regardless of the fact that the respondent has not named the misconduct - according to the above statements not be accepted.
With its order for reference of January 26, 2021, the LSG Lower Saxony-Bremen also submitted the question of the constitutionality of the standard benefits for asylum seekers 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). Even though this order for reference concerns the monetary amounts set for 2018, the order for reference raises a number of, among other things, methodological concerns, which are also of central interpretation for the currently applicable version.
Also due to the SG Düsseldorf's order for reference (SG Düsseldorf, order for reference of April 13, 2021 - S 17 AY 21/20 -, juris), the Federal Constitutional Court will have to deal with the AsylbLG's benefit system in the previous 1 BvL 3/21.
In contrast, the decision of the Federal Constitutional Court of May 12, 2021, in which a constitutional complaint against an earlier version of Section 1a AsylbLG was not accepted for decision (see BVerfG, decision of May 12, 2021 - 1 BvR 2682/17 - ,), does therefore not of decisive importance because no position was taken on the substantive legal questions.
Finally, the requested order does not conflict with the prohibition of anticipation of the main matter. It is true that an interim order, taking advantage of the easier examination of the factual and legal situation, cannot generally be used to anticipate the outcome of any main proceedings, otherwise the applicants could use the procedure for issuing an interim order to circumvent main proceedings a later reversal of the services is often not very promising. On the other hand, an exception to this prohibition is required if there is a high degree of probability that the request will be successful in main proceedings and the passage of time would otherwise threaten the applicant with serious and unreasonable disadvantages that cannot be remedied later or only with difficulty could. Based on this, such an exceptional situation exists in the present case. It is highly likely that the main proceedings will be successful. The concerns about the constitutionality of the amount of standard benefits and the possibility of further reductions that were already expressed in the context of the amendment to the Asylum Seekers Benefits Act have now been taken up not only by a large number of voices in the literature, but also in case law. Due to the decisions to refer the matter to the Federal Constitutional Court, a binding clarification of the relevant questions can only be expected after a considerable period of time has elapsed, which is unreasonable for the applicants to wait. In contrast, the economic risk of not being able to realize a possible reclaim is negligible.
The court also points out that the relevant benefit decision does not contain any explanation as to why an extension of the sanction could lead to the aim of the measure, since this success did not occur for 6 months after the first reduction. In addition, it is likely that a new hearing will be necessary, especially with regard to this consideration, which is not apparent from the present file.
The cost decision follows from Section 193 SGG.
Instructions on legal remedies follow.
