VERDICT
S 27 AY 102/21
In the legal dispute
xxx,
– Plaintiff –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
City of Göttingen,
represented by the Mayor,
Hiroshimaplatz 1-4, 37083 Göttingen
– Defendant –
The 27th Chamber of the Social Court of Hildesheim, in its oral hearing of November 23, 2022, with Judge xxx and Lay Judges xxx and xxx presiding, rendered the following judgment:
The defendant is ordered, by amending the implied grant of benefits as set forth in the objection decision of June 14, 2021, to grant the plaintiff privileged benefits pursuant to Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Book XII of the German Social Code (SGB XII) for the period from January 1, 2021 to June 30, 2021, less any benefits already provided for this period.
The defendant shall bear the costs of the proceedings.
The appeal is admitted.
FACTS
The plaintiff seeks to be granted higher benefits under the Asylum Seekers' Benefits Act (AsylbLG) for the period 01.01.2021-30.06.2021.
The plaintiff, born in 1994, holds Iraqi citizenship and, according to his own statements, entered Germany on December 24, 2017. The Federal Office for Migration and Refugees (BAMF) rejected the plaintiff's asylum application as inadmissible in a decision dated January 30, 2018, found no grounds for prohibiting deportation, and ordered his deportation to Slovenia. His subsequent legal action before the Osnabrück Administrative Court was unsuccessful (Osnabrück Administrative Court, judgment of July 9, 2018 – 5 A 142/18).
The plaintiff was assigned by the Lower Saxony State Reception Authority to the defendant's local jurisdiction on May 24, 2018. The defendant granted the plaintiff, who was initially housed in municipal accommodation, basic benefits pursuant to Section 3 of the Asylum Seekers' Benefits Act (AsylbLG). During the period in question, he had neither available income nor realizable assets.
By an immediately enforceable order dated January 8, 2019, the defendant ordered the plaintiff to remain in his communal accommodation between midnight and 6:00 a.m. from Monday to Friday (so-called night-time order). He was required to leave a message if he was absent. The action brought against the night-time order before the Göttingen Administrative Court on January 10, 2019, was dismissed by order dated January 30, 2019, as part of a withdrawal of the action (Case No. 1 A 17/19). After the first transfer attempt on January 8, 2020, at 3:30 a.m. failed due to the plaintiff's absence, the second transfer attempt on February 4, 2020, at 4:15 a.m. also failed due to his absence. The third transfer attempt on December 4, 2019, was cancelled by the Lower Saxony State Criminal Police Office (LKA Nds.) because the plaintiff required an escort due to his suicidal tendencies (so-called transport escort). Finally, the fourth transfer attempt on January 15, 2020, was unsuccessful because the search warrant issued by the Göttingen District Court on January 8, 2020 (64 XIV 1/20 L) did not specify the apartment assigned to the plaintiff, and no name was listed on the doorbell panel. After the transfer deadline expired on February 28, 2020, the decision on the plaintiff's asylum application was issued in the national procedure. By decision dated April 21, 2020, the Federal Office for Migration and Refugees (BAMF) rejected the plaintiff's asylum application. Since then, the plaintiff has been granted temporary leave to remain.
The defendant granted the plaintiff basic benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) for the period in dispute by means of an implied approval of benefits. The defendant rejected the plaintiff's objection of March 15, 2021, as unfounded by a decision dated June 14, 2021.
With his lawsuit filed on June 15, 2021, before the Hildesheim Social Court, the plaintiff continues to pursue his claim. He argues that the translation of the night-time order of January 8, 2019, should be based on a presence time of 00:00 to 00:06 – i.e., 6 minutes. The second transfer attempt on February 4, 2019, at 04:15 is not covered by this.
The plaintiff essentially requests that
the defendant, by amending the implied grant of benefits as set out in the objection decision of June 14, 2021, be ordered to grant the plaintiff the requested benefits in the statutory amount for the period from January 1, 2021 to June 30, 2021.
The defendant requests that
the action be dismissed.
She argues, with reference to the issued decisions, that the plaintiff himself abused his rights by manipulating his stay. He violated his obligation to deregister, as he failed to report his absence at least one day prior. According to the late-departure order of January 8, 2019, only in cases of spontaneous absence is it possible to leave a written notice indicating his whereabouts in the entrance area of the apartment. No such notice was found during the second transfer attempt on February 4, 2019. The certificates issued by the residents of the accommodation on February 25, 2019, are to be considered certificates of convenience.
For further details of the facts and the submissions of the parties, reference is made to the contents of the court file and the immigration and administrative files of the defendant. These files were the subject of the oral hearing.
REASONS FOR DECISION
The action is successful. The combined action for annulment and performance pursuant to Section 54 Paragraph 1 Sentence 1 Alternative 1, Paragraph 4 of the Social Courts Act (SGG), which is admissible and otherwise permissible, is well-founded.
The contested implied grant of benefits for the period 01.01.2021-30.06.2021 in the form of the objection decision of 14.06.2021 is unlawful and violates the plaintiff's rights, § 54 para. 2 SGG.
The court is convinced that the plaintiff is entitled to privileged benefits for the period in dispute pursuant to Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with the Social Code Book XII (SGB XII) by analogy, taking into account benefits already provided under the Asylum Seekers' Benefits Act (AsylbLG).
1.
According to Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) in the version applicable since January 1, 2020, as amended by Article 5 No. 3 of the Second Act to Enforce the Obligation to Leave the Country of August 15, 2019 (Federal Law Gazette I p. 1294), the Social Code, Book XII (SGB XII), is to be applied accordingly, notwithstanding Sections 3 and 4 to 6 to 7, 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.
Apart from the question of whether the plaintiff himself abused his rights by manipulating the duration of his stay in Germany, the court is convinced that the other prerequisites for entitlement to subsistence-level benefits are met. The plaintiff is among those entitled to benefits under Section 1 of the Asylum Seekers' Benefits Act (AsylbLG) because he holds a temporary suspension of deportation (Duldung) under Section 60a of the Residence Act (AufenthG) (Section 1 Paragraph 1 No. 4 AsylbLG). He has also resided in Germany continuously for a sufficiently long period since his entry in December 2017. Therefore, it is irrelevant whether a continuous stay of 18 months or, due to the transitional provision of Section 15 AsylbLG, the previously applicable minimum stay of 15 months applies (cf. Higher Social Court of Lower Saxony-Bremen, decision of September 28, 2021 – L 8 AY 19/21 B ER).
The court is convinced that the plaintiff did not abuse his rights by influencing the duration of his stay in the federal territory until the end of the period in dispute.
When assessing whether a person has acted abusively, the entire duration of their stay in Germany must be considered (see Grube/Wahrendorf/Flint/Leopold, 7th ed. 2020, AsylbLG § 2 para. 27). According to the jurisprudence 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 within the meaning of § 2 para. 1 AsylbLG 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 impact on the person's stay. Given the punitive nature of § 2 AsylbLG, not just any conduct that is in any way reprehensible is sufficient. The nature, extent, and consequences of the breach of duty are so serious for the foreigner that the breach itself must also be given considerable weight within the framework of the principle of proportionality. Therefore, only conduct that is inexcusable (socially unacceptable) when considering the individual case, the specific situation of the foreigner in the Federal Republic of Germany, and the particular characteristics of the Asylum Seekers' Benefits Act (AsylbLG) can lead to the exclusion of analogous benefits. An exception must be made 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).
The beneficiary may not invoke a circumstance that he himself brought about in bad faith. In this context, the breach of duty must be given considerable weight within the framework of the principle of proportionality, taking the individual case into account. The Federal Social Court (BSG) clarifies that even a single instance of conduct can have this legal consequence. According to the cited case law of the highest court, the accusation of abusively influencing the duration of one's stay in Germany requires intent on the part of the individual.
The court is convinced that the plaintiff did not, through his own conduct, abuse the legal process of influencing the duration of his stay in Germany within the meaning of Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG). In particular, this is not a case of absconding. If a foreigner absconds, the immigration authorities are prevented from enforcing the obligation to leave the country pursuant to Section 50 Paragraph 1 of the Residence Act (AufenthG) (see Frankfurt Social Court, decision of March 12, 2020 – S 30 AY 3/20 ER –, para. 15, juris).
In particular, the plaintiff did not obstruct the four transfer attempts. As the 42nd Chamber of the Social Court already ruled in its decision of March 25, 2020 (S 42 AY 211/19 ER), the failure of the first transfer attempt on January 8, 2019, cannot be attributed to the plaintiff violating the night-time order of the same day, even though he could not be found at the communal accommodation. This is because the order was only served on the plaintiff on January 10, 2019, and only became effective from that point onward (§ 39 Paragraph 1 Sentence 1 SGB X). Therefore, there was no obligation to be present on the night of January 8, 2019; rather, the authorities should have waited for the order to be served.
The failure of the second transfer attempt on February 4, 2019, cannot be attributed to the plaintiff's sphere of responsibility. The plaintiff correctly pointed out that the late-hours order, translated into his native language, was erroneous. Specifically, the translation of the late-hours order dated January 8, 2019, specified a required presence period from 00:00 to 00:06 – a mere six minutes. Since the late-hours order also contained other errors – such as the incorrect fax number – the plaintiff could not assume that it referred to the actual obligation to be present only between 00:00 and 06:00. Therefore, the court is not convinced that it is decisive whether the certificates issued by the plaintiff's two roommates were so-called "courtesy certificates." The plaintiff informed the defendant that he occasionally stayed with an acquaintance. His whereabouts were thus known.
The court is convinced that the failure of the subsequent extradition attempts on December 4, 2019, and January 15, 2020, cannot be attributed to any violation by the plaintiff of the night-time order of January 8, 2018. The extradition attempt of December 4, 2019, was canceled in advance by the State Criminal Police Office (LKA) because the necessary transport escort had not been arranged. Finally, the extradition attempt of January 15, 2020, was aborted because no apartment was listed on the search warrant issued by the Göttingen District Court on January 8, 2020 – 64 XIV 1/20 L – and no name was recorded on the doorbell panel. The cancellation and aborting of these extradition attempts are not attributable to the plaintiff.
The decision on costs is based on Section 193 Paragraph 1 of the Social Courts Act (SGG). According to this provision, the plaintiff's necessary extrajudicial costs are reimbursable costs within the meaning of Section 193 Paragraph 1 SGG.
Pursuant to Section 144, Paragraph 1, Sentence 1, No. 1, and Paragraph 2 of the Social Court Act (SGG), the appeal requires leave to appeal because the defendant's claim is below the threshold of €750. Leave to appeal is granted because the case is of fundamental importance.
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