DECISION
In the legal dispute
1. xxx,
Applicant,
2. xxx,
Applicant,
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
Hersfeld-Rotenburg district,
represented by the district council,
Friedloser Straße 12, 36251 Bad Hersfeld,
Respondent,
The 7th Chamber of the Fulda Social Court decided on July 11, 2022, through Judge xxx of the Social Court:
1. The respondent is ordered by way of preliminary injunction to provide the applicants with provisional benefits pursuant to Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) in the statutory amount from 10 May 2022 to 31 December 2022 and, insofar as it concerns the benefit entitlement of applicant no. 1, taking into account the standard benefit level 1.
2. The respondent shall reimburse the applicants for the necessary extrajudicial costs of the legal proceedings.
REASONS
I.
The parties are arguing about the granting of higher benefits under the Asylum Seekers' Benefits Act (AsylbLG).
The applicant (1), born on [date redacted], and her daughter (2), born on [date redacted], both Nigerian nationals, first entered the Federal Republic of Germany from Italy on [date redacted]. By order of the Darmstadt Regional Council dated August 21, 2018, the applicants were assigned to the Hersfeld-Rotenburg district. By order dated February 6, 2019, the Federal Office for Migration and Refugees rejected the applicants' applications for refugee status, asylum, and subsidiary protection. The applicants have been subject to enforceable deportation orders since February 16, 2019, and currently hold temporary suspension of deportation (Duldung) valid until July 20, 2022.
The respondent initially granted the applicants ongoing benefits under Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) by decision dated August 30, 2018. On February 29, 2020, the respondent discontinued the benefits after learning that the applicants had voluntarily returned to Italy. On October 1, 2020, the applicants returned to the district of Hersfeld-Rotenburg and have been living in communal accommodation in Bad Hersfeld since October 8, 2020. An application by the applicants for further asylum proceedings was rejected by the Federal Office for Migration and Refugees in a decision dated October 13, 2020, whereupon the applicants filed a lawsuit with the Kassel Administrative Court on November 3, 2020.
By decision dated October 16, 2020, the respondent again granted the applicants benefits under the Asylum Seekers' Benefits Act (AsylbLG) effective October 1, 2020. Applicant 1 was granted reduced benefits pursuant to Section 1a Paragraph 4 Sentence 3 in conjunction with Sections 1 Paragraph 1 and 14 of the AsylbLG, and applicant 2 received benefits pursuant to Section 3 of the AsylbLG. The respondent justified the decision by stating that applicant 1 held a residence permit valid until November 14, 2027, in Italy, an EU member state, while applicant 2 held a residence permit valid until October 4, 2022. The respondent further stated that there was no indication that this residence permit was no longer valid. According to Section 1a Paragraph 4 Sentence 3 of the Asylum Seekers' Benefits Act (AsylbLG), the applicant could only be granted benefits under Section 1a Paragraph 1 of the AsylbLG. The respondent further stated that the applicant had also entered the country for the purpose of receiving benefits under the AsylbLG. The restricted/sanctioned benefit provision would initially be for six months, after which a further review would take place.
After the applicants were granted a temporary suspension of deportation valid until January 13, 2021, on October 14, 2020, the respondent stated in an amended decision dated October 27, 2020, that due to the subsequently granted temporary suspension of deportation, a reduction in benefits for applicant no. 1 pursuant to Section 1a Paragraph 4 Sentence 3 in conjunction with Section 1a Paragraph 1 in conjunction with Section 14 of the Asylum Seekers' Benefits Act (AsylbLG) could no longer be applied. However, the conditions for a reduction in benefits pursuant to Section 1a Paragraph 2 of the AsylbLG were met, as applicant no. 1 had entered the Federal Republic of Germany to obtain benefits under this law. The reduction in benefits was applied pursuant to Section 14 of the AsylbLG until and including April 13, 2021. Since April 14, 2021, the applicants have again been receiving full benefits pursuant to Sections 3 and 3a of the AsylbLG. Applicant 1 is granted basic benefits in the amount of the standard rates pursuant to Section 3a Paragraph 1 No. 2 and Paragraph 2 No. 2. Applicant 2 is granted basic benefits in the amount of the standard rates pursuant to Section 3a Paragraph 1 No. 4 and Paragraph 2 No. 5 of the Asylum Seekers' Benefits Act (AsylbLG). The most recent benefit notice contained in the respondent's administrative file, designated as an amendment notice, is dated December 29, 2021, and concerns the recalculation of the benefits granted to the applicants for the month of January 2022 in the total amount of €613. The notice contains the following general information:
"The approved benefit(s) will initially be granted for a period of one month only and subject to the condition that the circumstances stated by the applicant or recipient, on which the approval is based, do not change. If no change occurs, the previously approved benefit(s) will continue to be paid in the amount specified in this notification without further application, based on a tacit monthly renewal. However, if changes in circumstances occur and this results in a payment that is not legally justified, the payment must be refunded to the extent that the applicant/recipient is responsible for the change. If the benefit is granted for a limited period, payment will end at the end of the specified date."
By letter from their legal representative dated January 31, 2022, the applicants lodged an objection against the decision of December 29, 2021. The objection has not yet been decided.
Furthermore, the applicants had already filed an objection to the monthly benefit award by letter dated December 25, 2021, and submitted an application pursuant to Section 44 of the German Social Code, Book X (SGB X), seeking higher benefits under the Asylum Seekers' Benefits Act (AsylbLG) for the month of February 2020 and the period from October 2020 to December 2020, as well as for the entire year 2021. Applicant No. 1 requested benefits based on a standard allowance at standard allowance level 1. The Kassel Regional Council, as the competent appeals authority, rejected the aforementioned objection as unfounded by decision dated March 22, 2022, whereupon the applicants filed a lawsuit with the Fulda Social Court on April 22, 2022. The lawsuit is being conducted there under file number S 7 AY 6/22.
On May 10, 2022, the applicants submitted the present application for preliminary legal protection to the Fulda Social Court.
The applicants believe they are entitled to benefits under Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG). In addition, applicant no. 1 believes she is entitled to benefits at standard benefit level 1. Applicant no. 1 refers in this regard to the decision of the Hessian State Social Court of April 13, 2021, under file number L 4 AY 3/21 B ER.
The applicants request:
The respondent is ordered, by way of preliminary injunction, to grant the applicants the requested benefits in the statutory amount from the date of receipt of this application by the court, provisionally and subject to the right of recovery, until a final and binding decision is reached on the applicants' objection of January 31, 2022, against the respondent's decision of December 29, 2021 (file no.: 4.30-A531-222356), taking into account the legal opinion of the court.
The respondent requests that
the application for interim legal protection be rejected.
The respondent argues that the law stipulates that single persons in communal accommodations are assigned to standard benefit level 2. Even if this classification is considered unconstitutional, it corresponds to the current legal situation. The decision of the Federal Constitutional Court in the referral order must be awaited in this regard. Furthermore, the respondent is of the opinion that, due to other benefits received by the applicant in the period from October 1, 2020, to April 13, 2021, benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) can only be granted from October 14, 2022, onwards, since benefits under Section 1a of the AsylbLG would constitute an abuse of rights within the meaning of Section 2 of the AsylbLG. Only applicant no. 2 has a retroactive entitlement to benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) from 1 April 2022, as she has been receiving benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) since 1 October 2020.
Following the court's request of June 30, 2022, to submit the corresponding amendment notice regarding the granting of benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) to the applicant no. 2, the respondent did not provide any further feedback.
For further submissions by the parties, reference is made to the court file and to the administrative file of the respondent.
II.
The present application for interim legal protection, by which the applicants seek to compel the respondent to provisionally grant benefits pursuant to Section 2 of the Asylum Seekers Act and, insofar as it concerns applicant no. 1, taking into account the standard benefit level 1, is admissible and well-founded.
According to Section 86b Paragraph 2 Sentence 1 of the Social Courts 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 realization of a right of the applicant (protective injunction). According to Sentence 2 of this provision, 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 significant disadvantages (regulatory injunction). If a claim for benefits by the applicant forms the basis for the requested preliminary legal protection, this protection is generally to be granted by way of a regulatory injunction pursuant to Section 86b Paragraph 2 Sentence 2 SGG. Accordingly, the preliminary injunction must be necessary to avert a significant disadvantage for the applicant. Such a disadvantage can only be assumed if, on the one hand, the applicant has a substantive legal claim against the respondent in the main proceedings (claim for an injunction) and, on the other hand, it is unreasonable to expect the applicant to await a decision on the merits of the case (ground for an injunction). Waiting for a decision in the main proceedings must not entail significant disadvantages. Therefore, there must be an urgent emergency situation that requires an immediate decision (Higher Social Court, decision of June 18, 2008 – L 6 AS 41/08 B ER with further references). Such an emergency situation is to be affirmed, in particular, if the applicant's livelihood is threatened or significant economic disadvantages arise (Keller in: Meyer-Ladewig/Keller/Leitherer/Schmidt, Social Courts Act, 13th edition 2020, § 86b, para. 28). The claim for an injunction and the grounds for it are interrelated, such that the requirements for the claim are reduced with increasing urgency or severity of the threatened harm, and vice versa. Due to their functional connection, the claim for an injunction and the grounds for it form a flexible system (HLSG, loc. cit.; Keller, loc. cit., paras. 27 and 29 with further references). If a claim on the merits would be manifestly inadmissible or unfounded, the application for a preliminary injunction must generally be rejected, regardless of the grounds for it, because no right worthy of protection exists. Conversely, if a claim on the merits would be manifestly well-founded, the requirements for the grounds for it are reduced, even though a ground for it cannot be dispensed with entirely in this case (HLSG, loc. cit.). If the outcome of the main proceedings is uncertain, for example, if a complete clarification of the factual and legal situation is not possible in the preliminary injunction proceedings, a decision must be made by weighing the consequences. Insofar as subsistence benefits are at issue and serious and unreasonable impairments may arise that cannot be averted otherwise and cannot be remedied by the main proceedings, the factual and legal situation must be examined not merely summarily, but conclusively. If, in such cases, the court is unable to fully clarify the factual and legal situation in preliminary proceedings, a decision must also be made based on a balancing of interests, whereby, however, the applicant's fundamental rights must be fully taken into account in the balancing (Federal Constitutional Court, decision of May 12, 2005, NVwZ 2005, 927-929).
Measured against this standard, the applicants have credibly demonstrated both the existence of a claim to an injunction and the existence of grounds for such an injunction. The applicants are entitled to benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG). According to Section 2, Paragraph 1, Sentence 1 of the AsylbLG, notwithstanding Sections 3 and 4 as well as 6 to 7, Book XII of the Social Code and Part 2 of Book IX of the Social Code apply accordingly to those beneficiaries who have resided in Germany for 18 months without significant interruption and have not abusively influenced the duration of their stay.
The applicants are entitled to benefits pursuant to Section 1 Paragraph 1 Numbers 5 and 6 of the Asylum Seekers' Benefits Act (AsylbLG) as described above. Furthermore, the applicants have fulfilled the requirement of a minimum of 18 months of uninterrupted residence in Germany as of March 31, 2022. Finally, the court finds no evidence that the applicants have abused their rights by influencing the duration of their stay in Germany.
The concept of abuse of rights comprises an objective component – the element of abuse itself – and a subjective component – culpability. This element of the offense under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) is based on the principle that no one may invoke a legal position that they themselves have obtained in bad faith. Objectively, abuse of rights requires dishonest conduct that is disapproved of by the legal system. However, given the punitive nature of Section 2 of the AsylbLG, not just any conduct that is in any way reprehensible is sufficient. Only conduct that is inexcusable (socially unacceptable), taking into account the specific circumstances of the individual case, the particular situation of a foreigner in the Federal Republic of Germany, and the specific characteristics of the AsylbLG, leads to the exclusion of analogous benefits. The explanatory memorandum to the law cites the destruction of a passport (Bundestag printed matter 15/420, p. 121) as a typical example of an abuse of rights, unless these actions are themselves a reaction to or a preventive measure against objectively foreseeable misconduct by the state. The mere exploitation of a procedural position by failing to leave the country is insufficient. Thus, the fact that a foreigner does not leave despite a (formal) obligation to leave (tolerated stay) does not constitute an abuse of rights, but rather, potentially, the reasons that led to this. The residence status (tolerated stay) is irrelevant to the question of whether the foreigner has abused their own stay. If the foreigner is responsible for these reasons, i.e., if they have exerted influence on the situation, then an abuse of rights can only be affirmed for this reason, and not because of an existing obligation to leave. Furthermore, an abuse of rights in the aforementioned sense can only exist if the foreigner is also aware of it. Mere negligence is not sufficient to establish an abuse of rights. Rather, the accusation requires intent regarding both the factual circumstances and the manipulation of the duration of the stay (Hessian State Social Court, decision of February 26, 2020 – L 4 AY 14/19 B ER –, juris, para. 16 ff. with further references).
The court is unable to discern to what extent the objective elements of abuse under Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) are met in this case. Insofar as the respondent argues that the mere existence of the factual prerequisites for a restriction of benefits under Section 1a AsylbLG constitutes an abuse of rights, the court cannot agree with this unsubstantiated view, as the legislator would then have expressly included the corresponding alternatives of Section 1a AsylbLG as typical examples of abusive conduct in Section 2 AsylbLG. Furthermore, notwithstanding the constitutional concerns raised by the Hessian State Social Court regarding the applicability of Section 1a Paragraph 2 of the Asylum Seekers' Benefits Act (Hessian State Social Court, decision of March 31, 2020 – L 4 AY 4/20 B ER –, juris), it must be noted that the respondent did not conduct any investigations into the motive for the applicants' re-entry in October 2020. Moreover, the motive for re-entry is not apparent from the other contents of the administrative file. Therefore, due to the lack of evidence to establish the factual prerequisites of Section 1a Paragraph 2 of the Asylum Seekers' Benefits Act, this alternative for restricting benefits cannot, in the present case, constitute an abuse of rights within the meaning of Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act. No further indications are apparent that the applicants themselves abused their rights by influencing the duration of their stay in Germany.
The court also concluded that Section 2 Paragraph 1 Sentence 4 Number 1 of the Asylum Seekers' Benefits Act (AsylbLG), according to which Section 28 of the Twelfth Book of the Social Code in conjunction with the Standard Needs Assessment Act and Sections 28a and 40 of the Twelfth Book of the Social Code applies accordingly to beneficiaries under Sentence 1 with the proviso that, in the case of accommodation in communal accommodation within the meaning of Section 53 Paragraph 1 of the Asylum Act or in a reception facility pursuant to Section 44 Paragraph 1 of the Asylum Act, a standard need in the amount of standard need level 2 is recognized for each adult person, does not apply, by way of teleological reduction, to housing situations in which the persons concerned do not actually share household expenses with at least one other person. The court fully concurs with the convincing arguments presented by the Hessian State Social Court in its decision of April 13, 2021, under file number L 4 AY 3/21 B ER (juris, para. 39 ff., 51 ff.).
The requirements of Section 2 Paragraph 1 Sentence 4 Number 1 of the Asylum Seekers' Benefits Act (AsylbLG), as interpreted in accordance with the aforementioned constitutionality, are not met. The court cannot discern, either from the contents of the administrative file or from the submissions of the parties, that the applicants live in a housing situation in which applicant 1 shares household expenses with at least one other resident of the communal accommodation. Applicant 1 is therefore entitled to benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG), based on standard benefit level 1.
Furthermore, the grounds for issuing the requested interim injunction were also sufficiently substantiated and are obvious due to the applicants' months-long and not merely one-off or insignificant shortfall in their needs.
The respondent's obligation by way of preliminary injunction is therefore imposed as requested, effective from the date of the application to the court. The court deems it appropriate in this case to order the respondent to provide the applicants with benefits pursuant to Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) to the aforementioned extent until December 31, 2022, as it can be assumed that any potential appeal proceedings will be concluded by then.
The decision on costs is based on a corresponding application of Section 193 of the Social Court Act (SGG).
The following is information on legal remedies.
