DECISION
In the legal dispute
xxx,
– Applicant –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
Göttingen District,
represented by the District Administrator,
Reinhäuser Landstraße 4, 37083 Göttingen
– Respondent –
The 27th Chamber of the Hildesheim Social Court decided on March 25, 2022, through Judge xxx:
1. The respondent is ordered by way of preliminary injunction to grant the applicant, provisionally and subject to the right of recovery, 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 January 15, 2022 until July 14, 2022 at the latest, unless a decision has been reached on the objection to the decision of January 19, 2022, taking into account any basic benefits already provided for this period.
2. The respondent shall bear the applicant's necessary extrajudicial costs.
REASONS
I.
The applicant seeks, by way of an interim injunction, the granting of privileged benefits pursuant to Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with the Social Code Book Twelve (SGB XII) – Social Assistance – from 15 January 2022.
The applicant stated that she was born in xxx in xxx, Democratic Republic of Congo, and entered the Federal Republic of Germany on xx.xx.2020. Under threat of deportation to Italy, the applicant's asylum application was rejected as inadmissible by the Federal Office for Migration and Refugees (BAMF) in a decision dated June 22, 2020. On April 21, 2020, a transfer request was submitted to Italy pursuant to Regulation (EU) No 604/2013 of the European Parliament and of the Council (Dublin III Regulation). In a letter dated June 17, 2020, the Italian authorities declared their responsibility for processing the asylum applications pursuant to Article 12(4) of the Dublin III Regulation. At the same time, they pointed out that a transfer could only take place after the end of the Covid-19 pandemic. By letter dated January 20, 2021, the Federal Office for Migration and Refugees (BAMF) revoked the decision of June 22, 2020, after the transfer deadline had expired on December 17, 2020, due to the Covid-19 pandemic. A decision on the applicant's asylum application under national law has not yet been issued. The applicant holds a temporary residence permit.
The applicant was assigned by the Lower Saxony State Reception Authority to the local jurisdiction of the respondent on August 25, 2020, who granted the applicant basic benefits pursuant to Section 3 of the Asylum Seekers' Benefits Act (AsylbLG). During the period in question, she had neither available income nor realizable assets.
By decision dated September 3, 2021, the respondent granted benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) for the period from September 10, 2021, to March 31, 2022. By letter dated January 11, 2022, the applicant, represented by counsel, filed a request for review pursuant to Section 44 of Book Ten of the German Social Code – Social Administrative Procedure and Social Data Protection (SGB X) against all issued decisions and amendments. The applicant's request was rejected by decision dated January 19, 2022. She filed an objection to this decision by letter dated January 24, 2022, which is still pending.
The applicant filed an application for a preliminary injunction with the court on January 11, 2022 – received by the court on January 15, 2022. She argues that the waiting period under Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) has long been exceeded and that the duration of her stay has not been influenced by an abuse of rights.
The applicant requests that
the respondent be ordered, by way of an interim injunction, to grant the applicant the requested benefits in the statutory amount from the date of receipt of this application, provisionally and subject to the right of recovery, until a final and binding decision is reached on the applicant's application of January 11, 2022 against the respondent's decision of September 3, 2021 (file no.: 32.5.5024377), taking into account the legal opinion of the court.
The respondent requests that
the application be rejected.
The respondent argues that the application for preliminary legal protection is precluded by the finality of the grant decision of September 3, 2021. No claim for an injunction can exist for a request that has already been rejected by a legally binding administrative act. The applicant's continued presence in Germany constitutes an abuse of rights. Entry into Italy would have been possible even considering the pandemic-related restrictions.
For further details of the facts and the legal arguments, reference is made to the contents of the court file and the administrative records of the respondent.
II.
The admissible application for an interim injunction is well-founded and therefore has a prospect of success.
According to Section 86b Paragraph 2 of the Social Court Act (SGG), the court may, upon application, issue a preliminary injunction concerning the subject matter of the dispute if there is a risk that a change in the existing situation could frustrate or significantly impede the applicant's exercise of a right. According to Section 86b Paragraph 2 Sentence 2 SGG, preliminary injunctions are also permissible to regulate a provisional state of affairs with regard to a disputed legal relationship if such regulation appears necessary to avert substantial disadvantages. In this context, the granting of preliminary legal protection requires a claim to the injunction, i.e., a substantive legal claim to the benefit to which the respondent is to be granted by way of preliminary legal protection, as well as grounds for the injunction, namely a set of facts that establishes the urgency of the injunction. According to Section 86b Paragraph 2 Sentence 4 SGG in conjunction with Section 920 Paragraph 2 of the Code of Civil Procedure (ZPO), the grounds for the injunction and the claim to the injunction must be substantiated. Insofar as the prospects of success are considered in connection with the claim for an injunction, the factual and legal situation must be examined not merely summarily, but conclusively (see Federal Constitutional Court (BVerfG), decision of May 12, 2005 – 1 BvR 569/05 –). Moreover, the requirement of establishing prima facie evidence relates only to the reduced scope of review and the need for a degree of certainty, requiring only a preponderance of probability, regarding the factual prerequisites for the claim for an injunction and the grounds for the injunction (see decisions of the Hessian State Social Court (LSG) of June 29, 2005 – L 7 AS 1/05 ER –, and of February 12, 1997 – L 7 AS 225/06 ER –; Berlit, info also 2005, 3, 8).
No claim for an injunction can exist for a request that has already been rejected by a legally binding administrative act. Due to the finality of the decision, it is established (§ 77 SGG) that the respondent is not obligated to grant the applicant the requested benefits (Burkiczak in: Schlegel/Voelzke, jurisPK-SGG, 1st ed., § 86b SGG (as of September 7, 2020), para. 339). A different conclusion can only be reached if a review procedure pursuant to § 44 SGB X is pending with regard to the legally binding decision and the prerequisites for its revocation under § 44 SGB X are undoubtedly met, i.e., the decision is manifestly unlawful. Otherwise, the finality of the decision takes precedence in expedited proceedings (Burkiczak in: Schlegel/Voelzke, jurisPK-SGG, 1st ed., § 86b SGG (as of 07.09.2020), para. 340). It must therefore be credibly demonstrated that there are massive infringements on social and economic existence with significant effects on living conditions (Burkiczak in: Schlegel/Voelzke, jurisPK-SGG, 1st ed., § 86b SGG (as of 07.09.2020), para. 356).
The applicant has credibly demonstrated both a claim to an injunction and grounds for such an injunction. In particular, a review procedure pursuant to Section 44 of the German Social Code, Book X (SGB X) is pending, as the objection of January 24, 2022, has not yet been decided.
Within the scope of the summary examination required in the preliminary injunction proceedings, the applicant has credibly demonstrated to the court a claim to privileged benefits.
According to Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG), and in deviation from Sections 3 to 4 and 6 to 7 of the AsylbLG, the Social Code Book XII (SGB XII) shall apply accordingly to those beneficiaries who have been residing in the federal territory for 18 months without significant interruption and who have not abusively influenced the duration of their stay.
In the court's view, the applicant did not abuse her rights by influencing the duration of her stay in the federal territory.
When assessing the question of abuse of rights, the entire duration of the stay in Germany must be considered (see Grube/Wahrendorf, Commentary on the German Social Code, Book XII and the Asylum Seekers' Benefits Act, 5th edition 2014, § 2 AsylbLG, para. 22; Hohm, in: Schellhorn/Schellhorn/Hohm, Commentary on the German Social Code, Book XII and the Asylum Seekers' Benefits Act, 19th edition 2015, § 2 AsylbLG, para. 20 with further references). According to the case law of the Federal Social Court (BSG) (fundamental ruling: judgment of June 17, 2008 – B 8/9b AY 1/07 R – juris para. 32 et seq.), abusive conduct in this sense requires, objectively speaking, dishonest behavior that is disapproved of by the legal system and, subjectively speaking, is intentional and carried out with the awareness of the objectively possible influence on the stay. Given the punitive nature of Section 2 of the Asylum Seekers' Benefits Act (AsylbLG), not just any conduct that might be considered objectionable is sufficient grounds for exclusion. Therefore, only conduct that is inexcusable (socially unacceptable) when considering the specific circumstances of the individual case, the particular situation of the foreigner in the Federal Republic of Germany, and the specific characteristics of the AsylbLG can lead to the exclusion of analogous benefits. An effect on the length of stay is generally present if, from a general and abstract perspective, the abusive conduct could typically prolong the length of stay. An exception to this rule applies if any obligation of the foreigner in question to leave the country could not have been enforced during the entire period of the abuse of rights, regardless of their conduct (Federal Social Court, loc. cit., para. 44).
Measured against these standards, the court has come to the conclusion that the contested decision of September 6, 2022 is manifestly unlawful, as the conditions for an abusive influence on the residence in the federal territory pursuant to Section 2 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) are not met in the present individual case.
Based on this, it is highly probable that the applicant's failure to travel to Italy for asylum proceedings does not constitute an abuse of rights within the meaning of Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG). First, it must be considered that, according to Article 12 Paragraph 4 of the Dublin III Regulation, Italy was responsible for processing the applicant's asylum application, as she held an Italian visa (No. ITA040581348).
Deportation pursuant to Section 58 of the German Residence Act (AufenthG) failed due to pandemic-related reasons: While the Italian authorities declared their responsibility for processing the applicant's asylum application in a letter dated June 17, 2020, they simultaneously pointed out that a transfer could only take place after the COVID-19 pandemic had ended ("the transfer must be carried out only when the emergency due to COVID-19 is over") (page 68 of the immigration file). The respondent correctly stated that a transfer to Italy was possible again from July 8, 2020, provided the transfer procedures in effect at that time were followed (page 46 of the court file). The Italian authorities required a lead time of at least nine working days and the submission of a current negative COVID-19 test. The forced transfer planned for November 27, 2020, failed due to the lack of a PCR test (pp. 47 et seq. of the court file and p. 236 of the respondent's administrative file), for the procurement and selection of which the respondent's immigration authority was responsible (p. 49 of the court file). The court is convinced that it would have been even less possible for the applicant to obtain a PCR test required for entry into Italy.
The court is not persuaded by the respondent's view that the Federal Social Court's (BSG) decision of June 17, 2008 – B 8/9b AY 1/07 R – applies only to holders of a temporary suspension of deportation within the meaning of Section 60a of the Residence Act. According to the BSG's jurisprudence, the mere use of the legal position obtained by a foreigner through a temporary suspension of deportation, leading to an extension of their stay, is not sufficient to establish an abuse of rights if it would be possible and reasonable for them to leave the country (BSG, Judgment of June 17, 2008 – B 8/9b AY 1/07 R –, BSGE 101, 49-70, SozR 4-3520 § 2 No. 2, para. 35).
If deportation is suspended, the obligation to leave the country remains unaffected under the Residence Act (§ 60a AufenthG). However, this does not constitute an obligation in the true sense, as deportation cannot be enforced. It would be contradictory to temporarily tolerate the foreigner's stay and simultaneously accuse them of abusing their legal rights, even though the state itself is temporarily waiving the obligation to leave. Accordingly, neither the filing of an asylum application itself (Hohm, AsylbLG, § 2 RdNr 83, as of March 2007) nor the foreigner's remaining in the country during the asylum procedure (§§ 55, 67 Asylum Procedure Act: temporary residence permit) until a negative decision becomes legally binding is regularly considered an abuse of rights (BSG, judgment of June 17, 2008 – B 8/9b AY 1/07 R –, BSGE 101, 49-70, SozR 4-3520 § 2 No. 2, Rn. 35).
The Federal Social Court (BSG) makes it clear, however, that the abuse of rights does not lie in the foreigner's failure to leave despite a (formal) obligation to leave (tolerated stay), but rather, if anything, in the reasons that led to this failure. The residence status (tolerated stay) is irrelevant for answering the question of whether the foreigner has abused their own residence rights (BSG, Judgment of June 17, 2008 – B 8/9b AY 1/07 R –, BSGE 101, 49-70, SozR 4-3520 § 2 No. 2, para. 35). In this context, it must be emphasized that, as correctly determined by the respondent, the applicant was not the holder of a tolerated stay during the period in question, but rather of a residence permit within the meaning of Section 55 of the Asylum Act (AsylG). The Federal Social Court (BSG) has expressly ruled that the residence status is not relevant for answering the question of whether the foreigner has abused his or her residence (see BSG, judgment of June 17, 2008 – B 8/9b AY 1/07 R –, BSGE 101, 49-70, SozR 4-3520 § 2 No. 2, para. 35).
The court has therefore concluded that the applicant's mere failure to leave the country does not constitute an abuse of rights within the meaning of Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (see also Lower Saxony-Bremen Higher Social Court, decision of January 16, 2020 – L 8 AY 22/19 B ER –, juris, para. 24).
The applicant has also credibly demonstrated grounds for an order, because the benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) are subsistence-level benefits.
The decision on costs follows analogously from Section 193 Paragraph 1 of the Social Court Act (SGG).
An appeal against this decision is admissible pursuant to Sections 172 Paragraph 3 Number 1, 144 Paragraph 1 Sentence 1 Number 1 of the Social Court Act (SGG), with regard to the calculation of the respondent's appeal, which results from the difference between benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) and benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) relating to a period of one year (cf. Higher Social Court of Lower Saxony-Bremen, decision of 17 August 2017 – L 8 AY 1/17 BU ER).
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