DECISION
In the appeal proceedings
xxx,
Applicant and complainant,
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
Offenbach District, represented by the District Committee,
– Department of Local Government Supervision and Law –,
Werner-Hilpert-Straße 1, 63128 Dietzenbach,
Respondent and respondent in the appeal,
The 4th Senate of the Hessian State Social Court in Darmstadt decided on December 20, 2022, through the presiding judge of the State Social Court xxx, the judge of the State Social Court xxx and the judge of the State Social Court xxx:
Upon the applicant's appeal, the decision of the Darmstadt Social Court of July 22, 2022 is amended.
The respondent is ordered to grant the applicant provisional benefits in accordance with Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) at the standard benefit level 1 for the period from July 14, 2021 to August 31, 2021.
Furthermore, the complaint is dismissed.
The respondent shall reimburse the applicant for half of her necessary extrajudicial costs in both instances of the proceedings L 4 AY 28/22 B ER and S 16 AY 62/21 ER.
The decision of the Darmstadt Social Court of July 22, 2022, regarding the rejection of legal aid, is overturned. The applicant is granted legal aid for the first-instance proceedings with the appointment of attorney Sven Adam, Lange Geismarstraße 55, 337073 Göttingen.
The costs of the appeal proceedings L 4 AY 29/22 B are not to be reimbursed.
REASONS
I.
The parties are in dispute by way of an interim injunction regarding the provisional granting of benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) for the period from July 14, 2021.
The applicant, born in 19xx, is single and an Ethiopian national. She first entered the Federal Republic of Germany on September 2, 2018. On [date omitted] 2019, the applicant gave birth to a daughter.
An asylum application submitted on September 6, 2018, was rejected by the Federal Office for Migration and Refugees (BAMF) in a decision dated September 27, 2018 (Document 51 of the electronic foreigner's file – AA). The application for an order suspending the effect of the action brought against this decision (Administrative Court Frankfurt am Main, file no. 5 K 3911/18.FA) was rejected (decision of the Administrative Court Frankfurt am Main dated October 12, 2018, file no. 5 L 3910/18 FA), the action was dismissed (judgment of the Administrative Court Frankfurt am Main dated September 1, 2021), and the application for leave to appeal to the Higher Administrative Court of Hesse was unsuccessful.
By decision of the Darmstadt Regional Council dated September 24, 2018 (page 1/5 of the administrative file), the plaintiff was assigned to the respondent pursuant to Section 50 Paragraph 4 of the Asylum Act (AsylG). Since then, she has lived in collective accommodation in Neu-Isenburg and initially received benefits pursuant to Section 3a of the Asylum Seekers' Benefits Act (AsylbLG) (decision of the respondent dated September 24, 2018, pages 2/6 et seq. of the administrative file). Since October 18, 2018, the plaintiff has been granted tolerated stay (page 1/10 of the administrative file). On October 29, 2018, the immigration office issued the applicant a notice in English informing her that, pursuant to Sections 48 and 49 of the Residence Act (AufenthG) as well as Section 15 Paragraph 2 Numbers 4, 5, and 6 of the Asylum Procedure Act (AsylVfG), she was obligated to present all identity documents in her possession and to cooperate in obtaining a valid passport or equivalent travel document. She was informed of her obligation to present her passport or equivalent travel document, as well as all documents or identity documents in her possession, and was requested to obtain proof of her nationality and to provide evidence of her efforts to do so. She was further informed, among other things, that if she failed to comply with her passport obligation, her benefits under the Asylum Seekers' Benefits Act (AsylbLG) would be reduced to the bare minimum for subsistence, pursuant to Section 1a of the AsylbLG. The applicant acknowledged receipt of the notice by signing it (Documents 81ff AA). On July 4, 2019, the applicant completed the "Application Form for Ethiopian National who left Ethiopia without a Travel Document and Requesting Passport" to apply for an Ethiopian passport (Documents 110 ff AA). On November 1, 2019, the Ethiopian Consulate General in Frankfurt am Main certified that the applicant had applied for a passport, which could not be issued because she was unable to provide proof of her Ethiopian nationality (Document 129 AA). On July 2, 2020, the applicant was informed of her obligations under Section 60b Paragraph 2 Sentence 1, Paragraph 3 of the German Residence Act (AufenthG) to obtain a passport and under Section 48 Paragraph 3 Sentence 1 to cooperate in establishing her identity and nationality (Documents 141f AA).
Following notification by the respondent's immigration office pursuant to Section 90 Paragraph 3 of the Residence Act (AufenthG) dated January 29, 2020 (p. 2/41 of the administrative file) that the applicant had prevented the enforcement of measures terminating her residence by failing to comply with the special passport procurement requirements under Section 60b Paragraph 2 of the Residence Act, the respondent notified the applicant by letter dated February 4, 2021 (p. 2/43ff of the administrative file) of the restriction of her entitlement to benefits under Sections 1 and 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Section 15 of the Asylum Act (AsylG) due to a breach of the duty to cooperate in obtaining a passport or passport substitute, effective March 1, 2021. The respondent referred to the content of the obligation under Section 60b Paragraph 2 of the Residence Act and set a deadline of February 24, 2021, for the applicant to respond and/or comply with her duty to cooperate. He further pointed out that the submission of identity documents or the making of a sworn statement did not release the applicant from the obligation to obtain a valid passport or passport substitute and to hand it over to the immigration authority. In this regard, the applicant had an employee of the Diaconal Service Offenbach-Dreieich-Rodgau submit a "table for documenting cooperation" (pp. 2/47f of the administrative file) by email on February 18, 2021 (p. 2/46 of the administrative file). According to the applicant's handwritten entries in English, she visited the Ethiopian consulate on February 10, 2021, but it was closed. On February 16, 2021, she contacted the consulate by email. On February 17, 2021, an employee of the Diaconal Service attempted to contact three Ethiopian lawyers she trusted by email. One email was not delivered, it was unclear whether another was delivered, and there has been no response to the third email. The applicant submitted a photograph (selfie) showing her in front of the Ethiopian consulate (p. 2/49 VA) as well as printouts of the emails. The Darmstadt Regional Council informed the respondent that the submitted evidence for obtaining a passport was insufficient; only when proof was provided that a trusted lawyer was also active and that the passport procurement process was demonstrably underway could a temporary suspension of deportation pursuant to Section 60a of the Residence Act be granted again.
By decision dated March 16, 2021 (pp. 2/61ff of the administrative file), the respondent imposed a restriction of benefits pursuant to Sections 1 and 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Section 15 of the Asylum Act (AsylG) for a period of six months because the applicant had failed to comply with her obligations to cooperate pursuant to Section 60b Paragraph 2 of the Residence Act (AufenthG). By a further decision dated March 16, 2021, the respondent granted the applicant benefits for the month of March 2021 only pursuant to Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) in the amount of €173. According to the information contained in the decision, the granted benefit is "initially granted only for one month and subject to the condition that the circumstances stated by the recipient do not change. If no change occurs, the previously granted benefit(s) will continue to be paid – without application – on the basis of a tacit monthly renewal in the amount specified in this decision."
By letter dated July 13, 2021 (received by the respondent on July 14, 2021), the applicant lodged an objection against the de facto grant of benefits for the period from April 1, 2021 (p. 136 of the court file).
On July 14, 2021, the applicant filed an application for a preliminary injunction with the Darmstadt Social Court. By letter dated July 27, 2021 (p. 122 of the court file), the applicant requested a review of the decisions of March 16, 2021, concerning the benefit period from March 1 to 31, 2021, pursuant to Section 44 of the German Social Code, Book XII (SGB XII), stating that she was still in asylum proceedings because a decision had not yet been reached on her appeal against the decision of the Federal Office for Migration and Refugees (BAMF) of September 27, 2018. The respondent rejected the application by decision dated September 28, 2021 (p. 124 of the court file). The Darmstadt Regional Council rejected the applicant's objection, filed by letter dated October 13, 2021 (p. 127 of the court file), with a decision dated December 29, 2021 (p. 129 of the court file). The applicant then filed a lawsuit with the Social Court under file number S 16 AY 3/22. With a further decision dated August 30, 2021, the Darmstadt Regional Council rejected the objection of July 14, 2021 (benefit period beginning April 1, 2021) as inadmissible and unfounded. The applicant then filed a lawsuit with the Darmstadt Social Court under file number S 16 AY 83/21. In a written submission dated September 3, 2021 (p. 148 of the court file), the applicant filed an objection to the benefit payment effective September 1, 2021, arguing that the benefit reduction was unlawful, that she was working to obtain a passport, and that the asylum proceedings had not yet been concluded with final legal effect. By an "amended decision" dated October 7, 2021 (p. 151 of the court file), the respondent amended the decision of March 16, 2021, because the decision of March 16, 2021, restricting the applicant's entitlement to ongoing benefits under the Asylum Seekers' Benefits Act (AsylbLG), was temporary. The respondent granted the applicant benefits in the amount of €328 for the months of September and October 2021 pursuant to Section 3a, paragraphs 1 and 2, of the AsylbLG. The applicant filed an objection to this decision by letter dated October 13, 2021 (p. 150 of the court file), arguing that she was entitled to benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) at standard benefit level 1. The objection was rejected by decision dated November 22, 2021. The applicant then filed a lawsuit with the Darmstadt Social Court under file number S 16 AY 125/21.
She initially stated that she had filed an objection to the granting of benefits from April 1, 2021, by letter dated July 13, 2021. She asserted that she had a right to an injunction, that the existing sanction was unconstitutional, and that Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) was unconstitutional. Furthermore, she stated that she was attempting to obtain a passport. She also argued that grounds for an injunction existed because her constitutionally guaranteed minimum subsistence level was not secured. In a letter dated May 30, 2022 (p. 190 of the court file), the applicant stated that she was seeking benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) at standard benefit level 1. She further stated that partial relief had apparently been granted regarding the reduction of benefits under Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) since September 1, 2021, and declared the proceedings concluded in this respect. However, the period from July 14, 2021, onward remained in dispute.
The respondent considered the restriction of entitlement under Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) to be constitutional. Citing case law from the Federal Constitutional Court, he did not consider grounds for an injunction to exist.
By decision of July 22, 2022, the Social Court rejected the application for preliminary legal protection. The Social Court reasoned that the applicant had failed to substantiate a claim for an injunction. The court stated that, for the period from April 1, 2021, to August 31, 2021, the finality of the respondent's decision of March 16, 2021, precluded such substantiation. Due to the binding effect of Section 77 of the Social Court Act (SGG), no claim for higher benefits could be asserted at the time of the decision. The application filed under Section 44 of the German Social Code, Book X (SGB X), regarding the restriction of benefits, did not alter this. Such an application does not yet overturn the finality of the decision. Furthermore, it was not readily apparent that the benefit-restricting decision of March 16, 2021, was unlawful, as the applicant had failed to demonstrate sufficient efforts to obtain a passport. Furthermore, the unconstitutionality of Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) has by no means been clarified. The applicant has also credibly demonstrated a claim for benefits for the period from September 2021 onwards. She does not meet the requirements for benefits under Section 2 Paragraph 1 Sentence 1 of the AsylbLG; she has not proven that she did not abuse her rights to influence the duration of her stay. Influence on the duration of stay exists even if, from a general and abstract perspective, the abusive behavior could typically prolong the duration of stay, and according to the wording of Section 2 Paragraph 1 Sentence 1 of the AsylbLG, neither the passage of time nor subsequent good conduct by the foreigner can lead to the granting of analogous benefits. The applicant failed to comply with her obligation to cooperate in obtaining a passport for more than one year. The applicant is also not entitled to benefits at the standard benefit level 1. This is precluded by the clear statutory provisions, beyond whose wording an expansive, constitutionally compliant interpretation is not possible. The Chamber was unable to form the necessary conviction of unconstitutionality in the preliminary injunction proceedings, which were aimed at granting provisional benefits. Nor does a claim to higher benefits arise from a claim to equal treatment based on the application of Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (Reception Directive). According to Article 3(1) of the Reception Directive, the applicant does not fall under the personal scope of application of the Directive; she is subject to an enforceable obligation to leave the country.
In a further decision dated July 22, 2022, the Social Court also rejected the application for legal aid.
The applicant filed appeals with the Social Court on August 18, 2022, against the decisions served on her on July 28, 2022. By letter dated December 13, 2022, the respondent, by way of partial acknowledgment, agreed to grant benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) at standard benefit level 1, effective September 1, 2021. The applicant accepted this partial acknowledgment by letter dated December 14, 2022.
The applicant continues to assert a claim for benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) at standard benefit level 1 for the period from July 14, 2021. The statements regarding the finality of the decision of March 16, 2021, are incorrect. With regard to the decision of March 16, 2021, she submitted an application under Section 44 of the German Social Code, Book X (SGB X), which had not yet become legally binding. The decision of March 16, 2021, concerning March 2021, does not constitute a continuing administrative act. The granting of benefits from April 1, 2021, is not legally binding. She cannot be accused of any abusive conduct to extend her stay.
The rejection of legal aid is surprising; the standard benefit level 2 for single people in communal accommodation is disputed and is considered constitutionally problematic.
The applicant requests that
the decision of the Darmstadt Social Court of July 22, 2022, be set aside and that the respondent be ordered, by way of preliminary injunction, to pay her benefits pursuant to Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) from July 14, 2021 (date of receipt of the appeal) on a provisional basis and subject to the right to reclaim any overpayments until a final and binding decision is reached on the applicant's action of September 3, 2021, against the de facto granting of benefits for the period from April 1, 2021, to August 31, 2021, as amended by the decision on the objection of August 30, 2021 (Darmstadt Social Court file number: S 16 AY 83/21), and her action of December 23, 2021, against the de facto granting of benefits from September 1, 2021, as amended by the decision on the objection of November 22, 2021 (Darmstadt Social Court file number: S 16 AY 125/21). to grant the urgent application to the Social Court of Darmstadt) and
to overturn the decision of the Social Court of Darmstadt of July 22, 2022 regarding the rejection of legal aid and to grant her legal aid for the first instance proceedings with the appointment of lawyer Sven Adam, Lange Geismarstraße 55, 337073 Göttingen.
The respondent requests that
the appeals be dismissed.
The applicant argues that preliminary injunction proceedings are inappropriate. There is neither a legal entitlement to an injunction nor grounds for one. Awaiting the main proceedings is constitutionally permissible and therefore also generally acceptable under the jurisdiction of the competent courts. The question of standard benefit level 1 or 2 in communal accommodations always raises the issue of equal treatment. Unequal treatment expressly mandated by law must be accepted. The question of whether the subsistence level is being undercut must be demonstrated specifically in each individual case. The Federal Constitutional Court has also deemed awaiting the main proceedings before the competent courts to be reasonable with regard to Section 1a of the Asylum Seekers' Benefits Act (AsylbLG). The granting of standard benefit level 1 or 2 is based on a parliamentary law whose unambiguous wording is not amenable to a constitutionally compliant interpretation. Suspending the enforcement of a law is subject to particularly high hurdles. The level of subsistence-level benefits is determined solely by law. A correction by the judiciary constitutes a concrete infringement of Article 110 of the Basic Law, and the monopoly of judicial review under Article 100 of the Basic Law must be respected. Only if the standard benefit level 2 leads to irreversible consequences for fundamental legal interests (e.g., health, life) in a specific individual case, consequences which the legislature did not foresee, can a correction be made through preliminary legal protection. The applicant's submissions do not meet these requirements.
The applicant and her daughter were provided with a fully furnished room (including initial household linens). She also has access to a shared kitchen and a laundry room in the basement. Common rooms on the ground floor are available for the residents of the accommodation. Electricity, water, heating, apartment maintenance, and upkeep (including major electrical appliances and furniture) are fully covered by the city of Neu-Isenburg as in-kind benefits. The same applies to regular renovations and extended property maintenance. The family received a cash payment, in the form of a "dish package," on the day of their arrival to cover the necessary personal belongings for their household needs. A warehouse containing donated items (dishes, small electrical appliances, pots, toys, etc.) is available for necessary replacement purchases and can be accessed as needed. Due to this type of accommodation, residents of this communal housing only incur costs for their day-to-day household expenses, which are not deducted from their standard allowance. Further cost savings result from the central location of the accommodation. It is situated just a few meters from the town hall, schools, daycare centers, doctors' offices, and shopping centers, meaning that the use of public transportation is generally unnecessary for daily life. In addition to these amenities, residents have regular access to qualified social and educational support on-site, which provides active assistance with all aspects of residency and social welfare law, including communication and applications to the authorities. This saves them the effort of copying documents and traveling to government offices to submit documents or statements, or to obtain information about the status of their applications. Since the residents of this communal housing have remained virtually unchanged for several years, residents have the opportunity to connect and interact with the other residents (who were previously strangers to them). These residents meet regularly for communal events in the accommodation's common areas. Mutual assistance with everyday tasks and problems is largely taken for granted by the residents of this communal accommodation. Instead of relying on this community, they can also contact the caretaker, who is present on-site during the week and always available to help with daily tasks upon request. They also have access to volunteer helpers who can assist with integration into German culture, language, and the job market.
For details regarding the facts and legal issues, reference is made to the contents of the court files, the applicant's administrative files, and the electronic foreigner's file.
II.
The appeal, which was filed in due form and time, against the rejection of the applicant's request for an interim injunction is admissible because, at the relevant time of filing the appeal on August 18, 2022, recurring benefits for a period of more than one year (§ 172 para. 3 no. 1 in conjunction with § 144 para. 1 SGG) were already in dispute.
However, the appeal is only justified to the extent indicated in the operative part of the judgment.
Pursuant to Section 86b Paragraph 2 Sentences 1 and 2 of the Social Courts Act (SGG), the court of first instance 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 state of affairs could frustrate or significantly impede the applicant's exercise of a right. 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. Pursuant to Section 86b Paragraph 2 Sentence 4 SGG in conjunction with Section 920 Paragraph 2 of the Code of Civil Procedure (ZPO), the claim for the injunction and the grounds for the injunction must be substantiated. There is a reciprocal relationship between the grounds for the injunction and the claim for the injunction. Less stringent requirements apply to the existence of the grounds for the injunction if, upon examination of the facts and the law, success in the main proceedings is probable. If a main action is manifestly inadmissible or unfounded, the issuance of a preliminary injunction must be rejected due to the lack of a valid claim. If the prospects of success in the main action are uncertain, the grounds for the injunction become decisive. Insofar as subsistence benefits are at stake, the requirements for the grounds for the injunction and the claim for the injunction are less stringent. In this case, a balancing of interests, taking into account the applicants' fundamental rights, may also be necessary (see Federal Constitutional Court, decision of May 12, 2005 – 1 BvR 569/05, NVwZ 2005, 927; decision not to accept the appeal of January 15, 2007 – 1 BvR 2971/06). The issuance of a preliminary injunction must be necessary to avert substantial disadvantages. This means there must be an urgent emergency requiring an immediate decision (established case law of the Higher Social Court, e.g., decision of January 29, 2008, L 9 AS 421/07 ER with further references, juris). Such an emergency exists when there is a threat to one's livelihood or significant economic disadvantages (Keller in: Meyer-Ladewig/Keller/Leitherer/Schmidt, SGG, 13th ed. 2020, § 86b para. 29a).
Based on these principles, the applicant's claim to an order for the granting of higher benefits under the Asylum Seekers' Benefits Act (AsylbLG) for the period from April 1, 2021 to August 31, 2021 has been credibly demonstrated.
Although the decision of March 16, 2021, establishing the restriction of benefits pursuant to Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) (pp. 2/61 et seq. of the administrative file) has become legally binding, its binding effect has not yet been overridden by the applicant's application for relief under Section 44 of the Tenth Book of the Social Code (SGB X) – Social Administrative Procedure and Social Data Protection – as the Social Court correctly pointed out in the contested decision. The Senate refers to the relevant explanations in the grounds for the decision of July 22, 2022, transcript p. 3, pursuant to Section 142 Paragraph 2 Sentence 3 of the Social Courts Act (SGG).
However, the issuance of a preliminary injunction is possible if a review procedure pursuant to Section 44 of the German Social Code, Book X (SGB X) is pending with regard to the legally binding decision and the prerequisites for the revocation of the decision pursuant to Section 44 SGB X are undoubtedly met, i.e., the decision is manifestly unlawful (Burkiczak in: Schlegel/Voelzke, jurisPK-SGG, 2nd ed., Section 86b SGG [as of October 24, 2022], para. 397; MKLS/Keller, 13th ed. 2020, SGG Section 86b para. 29c; Binder in: Berchtold, Sozialgerichtsgesetz, SGG Section 86b para. 32, beck-online). These prerequisites are met; the decision of March 16, 2021, is manifestly unlawful.
The conditions of Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) in the version applicable here, which has been in force since September 1, 2019, are not met during the aforementioned period. According to this provision, persons entitled to benefits under Section 1 Paragraph 1 Numbers 4 and 5, for whom deportation cannot be carried out for reasons attributable to themselves, receive only benefits in accordance with Paragraph 1 from the day following the enforceability of a deportation threat or deportation order.
The applicant initially falls within the group of persons covered by the regulations. The deportation order issued in the decision of January 17, 2019, remains enforceable in light of the unsuccessful application for preliminary legal protection before the administrative court. However, enforcement of the deportation order is not impossible for reasons attributable to the applicant herself. For the applicant to be held responsible, it is sufficient that the unenforceability of the measures terminating her residence is based on circumstances within the sphere of responsibility of the person acting (see Oppermann in: Schlegel/Voelzke, jurisPK-SGB XII, 3rd ed., § 1a AsylbLG para. 85).<Stand: 2. November 2022> (mwN); conversely, a person affected does not have to accept responsibility for contributing causes outside their sphere of responsibility; the misconduct must therefore be monocausal (cf. regarding an older version of the law BSG, judgment of 27 February 2019 – B 7 AY 1/17 R –, juris Rn. 27).
The decision of March 16, 2021, is based on a violation by the applicant of the special obligation to obtain a passport pursuant to Section 60b Paragraph 2 Sentence 1 of the Act on the Residence, Economic Activity and Integration of Foreigners in the Federal Territory (Residence Act – AufenthG), which, however, did not affect the applicant when the decision of March 16, 2021, was issued. According to Section 60b Paragraph 2 Sentence 2 Clause 1 of the Residence Act, the obligations to cooperate are unreasonable for asylum seekers in ongoing asylum proceedings, whereby the unreasonableness of corresponding acts of cooperation extends from the moment of the asylum application at the border (Section 18 Asylum Act) through the registration as an asylum seeker (Section 63a Asylum Act) and the application for asylum (Section 13 Asylum Act) until the legally binding rejection of the asylum application (Bergmann/Dienelt/Dollinger, 14th edition 2022, Residence Act Section 60b marginal notes 13, 14). The applicant's asylum procedure had not yet been legally concluded when the decision of March 16, 2021 was issued; this only occurred with the rejection of the application for leave to appeal against the judgment of the Frankfurt am Main Administrative Court of September 1, 2021 (Case No. 5 K 3911/18 FA). The violation of the special passport procurement obligations pursuant to Section 60b Paragraph 2 Sentence 1 of the Residence Act is therefore objectively not present – regardless of whether the applicant was sufficiently specifically requested to perform the required acts of cooperation (cf. Senate decision of January 6, 2014, L 4 AY 19/13 B ER nv; see also LSG Saxony decision of June 28, 2011 – L 7 AY 8/10 B ER, BeckRS 2011, 73901, beck-online; Cantzler, Asylbewerberleistungsgesetz, AsylbLG § 1a Rn. 74, beck-online).
However, insofar as the applicant has not sufficiently cooperated in presenting or obtaining a passport, passport substitute, or other travel document, she has violated her obligations under Section 48, paragraphs 1 and 3, sentence 1 of the Residence Act (AufenthG), the content of which she was informed of on October 29, 2019. According to this provision, a foreigner is obligated to present their passport, passport substitute, or identity document to the authorities responsible for enforcing immigration law upon request and to cooperate in obtaining an identity document if they do not possess a valid passport or passport substitute. Furthermore, they are obligated to present, hand over, and surrender to the authorities responsible for enforcing the Residence Act, upon request, all documents, other records, and data carriers in their possession that may be relevant for determining and asserting a possibility of return to another country. The obligation to cooperate is fulfilled, among other things, by cooperating in the determination of identity or by providing the declarations necessary for obtaining travel documents (see Section 49 Paragraph 2 of the Residence Act). The applicant has not sufficiently cooperated in the determination of her nationality. Her acts of cooperation are limited to applying for an Ethiopian passport in autumn 2019, visiting the Ethiopian Consulate General in Frankfurt am Main in February 2021 – a visit credibly documented only by a photograph – into which, according to her, she was not admitted, sending an email to the consulate, and making a single attempt to contact three Ethiopian lawyers she trusted via email. Two of these emails were either not delivered or delivery was uncertain, and the recipient of the third email has not responded since. The applicant has therefore failed to comply with her obligations to cooperate pursuant to Section 48 Paragraph 3 of the Residence Act. This provision, in conjunction with Section 82 Paragraph 1 Sentence 1 of the Residence Act, stipulates that the foreigner must "provide" the necessary documents for the enforcement of immigration law. Cooperating in obtaining a return travel document is not a matter of separable individual obligations, but rather a bundle of obligations for obtaining return travel documents for a foreigner obligated to leave the country. Under immigration law, the foreigner cannot simply limit himself to fulfilling those specific obligations imposed by the immigration authorities, but is instead required to take the initiative and initiate the necessary steps to remove the existing obstacle to departure to the best of his ability. It may therefore be required not only to submit the necessary documents and appear at the foreign mission of the home country, but also to provide further information that enables identification or to commission a third party, in particular a lawyer, in the country of origin to obtain the necessary proof of identity (Bergmann/Dienelt/Kolber, 14th ed. 2022, AufenthG § 48 para. 6).
The obligations to cooperate pursuant to Section 48 Paragraph 3 of the Residence Act (AufenthG) remain unaffected alongside the special obligation to obtain a passport under Section 60b Paragraph 2 Sentence 1 of the Residence Act (Bergmann/Dienelt/Dollinger, 14th edition 2022, Residence Act Section 60b, marginal note 13). However, the applicant's violation of the obligations to cooperate incumbent upon her under Section 48 Paragraph 3 of the Residence Act does not render the decision of March 16, 2021, lawful, because the applicant was expressly questioned only about the violation of the obligations to cooperate arising from Section 60b Paragraph 2 Sentence 1 of the Residence Act during the hearing of February 4, 2021. However, Section 28 Paragraph 1 of the Hessian Administrative Procedure Act (HVwVfG) requires that the party concerned has the opportunity to comment on the facts relevant to the decision, which also includes the scope and limits of the alleged violation of obligations to cooperate under immigration law.
The applicant's entitlement to benefits for the period from April 1, 2021, to August 31, 2021, is governed by Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) at standard benefit level 1. The applicant has not credibly demonstrated an entitlement to benefits under Section 2, paragraphs 1, sentences 1 and 4, and 2 of the AsylbLG – even for the period from September 1, 2021. According to Section 2, paragraph 1, sentence 1 of the AsylbLG, and notwithstanding Sections 3 and 4 as well as 6 to 7 of the AsylbLG, 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. According to Section 19 Paragraph 1 and Section 27 Paragraph 1 of the German Social Code, Book XII (SGB XII), assistance for subsistence is to be provided to persons – including, pursuant to Section 23 Paragraph 1 Sentence 1 SGB XII, foreigners – who cannot provide for their necessary subsistence, or cannot do so sufficiently, from their own resources and means, in particular from their income and assets. The applicant meets these requirements. During the period in question, she was unable to support herself from income or assets and, as the holder of a temporary suspension of deportation (Duldung) pursuant to Section 60a Paragraph 4 of the German Residence Act (AufenthG), is entitled to benefits under the Asylum Seekers' Benefits Act (AsylbLG) (Section 1 Paragraph 1 No. 4 AsylbLG). She has resided in Germany since September 2018, and thus for more than 18 months without significant interruption.
However, the applicant herself abused her rights by failing to comply with her obligation under Section 48, paragraphs 1 and 3 of the Residence Act (AufenthG) to obtain a passport, passport substitute, or identity document. This violation also constitutes an abuse of rights within the meaning of Section 2, paragraph 1, sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG). The term "abuse of rights" is not defined anywhere in the AsylbLG, even after its comprehensive revision effective March 1, 2015, by the Act Amending the AsylbLG and the Social Courts Act (SGG) of December 10, 2014 (Federal Law Gazette I, p. 2187) and subsequent amendments. According to the jurisprudence of the Federal Social Court (BSG) on Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) in the version applicable until February 28, 2015 (cf. Section 2 Paragraph 1 in the version of the Act Implementing Directives of the European Union on Residence and Asylum Law of August 19, 2007, Federal Law Gazette I 1970), reprehensible misconduct comprises an objective component – the element of abuse – and a subjective component – culpability. Objectively, abuse of rights presupposes dishonest conduct disapproved of by the legal system. Within the scope of application of Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) in the version of the Act of August 19, 2007, the nature, extent, and consequences of the breach of duty weighed so heavily for the foreigner that, in light of the principle of proportionality, the breach of duty must be given considerable weight. Conduct is considered an abuse of rights only if, 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 Asylum Seekers' Benefits Act (AsylbLG), it is inexcusable in the sense of being socially unacceptable (Federal Social Court [BSG], Judgment of June 24, 2021 – B 7 AY 4/20 R –, BSGE 132, 232, para. 15). The Federal Social Court has upheld this jurisprudence regarding the requirements for the objective element of abuse, even for Section 2 Paragraph 1 Sentence 1 of the AsylbLG in the versions applicable since March 1, 2015, which have remained unchanged in this respect (Federal Social Court [BSG], Judgment of June 24, 2021 – B 7 AY 4/20 R –, BSGE 132, 232, para. 17).
The applicant's lack of cooperation in obtaining a passport—specifically, the obligation to provide proof of her nationality—is generally capable of affecting the length of her stay, as the issuance of a passport by her country of origin depends on proof of nationality—as evidenced by the certificate from the Ethiopian Consulate General in Frankfurt am Main dated November 1, 2019—and thus also on the execution of her deportation. It also constitutes an abuse of rights. The applicant was already requested on October 29, 2018, to obtain a passport and provide proof of her nationality. This request was sufficiently specific, as it clearly communicated the applicant's obligations under immigration law. The mere fact that the obligation to cooperate in obtaining proof of nationality was made contingent upon the absence of a passport or identity document, as explained in document 83 AA, does not mean that the instruction given to the applicant was insufficiently specific. Insofar as the applicant points out that the information regarding her duty to cooperate was only provided in German and English, but she speaks Amharic, it must be noted that, according to the extract from the Central Register of Foreigners (Document 3 AA), she has native-level English language skills. This is consistent with the fact that the "Table for Documenting Cooperation" (pp. 2747f VA) was also completed in English. Finally, it is also evident from the applicant's own actions that she was aware of her obligation to cooperate in obtaining a passport and clarifying her nationality, as she submitted an application for a passport to the Ethiopian Consulate General in July 2019 and provided proof of this to the respondent. Insofar as the applicant was – erroneously – informed in July 2020 and in the hearing notice of February 4, 2021, of her obligations to cooperate pursuant to Section 60b Paragraph 2 Sentence 1 of the Residence Act, this does not render the earlier instruction invalid. This is because, regardless of the specific legal structure of the obligations to cooperate, the actual acts of cooperation required of the applicant under Section 60b Paragraph 2 Sentence 1 of the Residence Act and Section 48 Paragraphs 3 and 4 of the Residence Act are identical: She is required to provide proof of her citizenship and obtain a passport. The applicant was evidently aware of the specific "instruction to act," as she made further attempts to fulfill her obligations in direct temporal proximity
The applicant was subject to obligations to cooperate. However, neither the application for an Ethiopian passport, nor the unsuccessful attempt to contact the Ethiopian consulate, nor the three emails allegedly aimed at contacting trusted lawyers were sufficient to fulfill the ongoing obligation to cooperate in immigration matters from October 2018 to the present day, as the applicant has neither asserted nor is it otherwise apparent that she has undertaken any further, particularly promising, measures to clarify (initially) her citizenship since February 2021. This breach of duty, which has thus continued for years and was only interrupted by sporadic but largely ineffective activity, is, upon summary review, deemed inexcusable in the sense of being socially unacceptable under the standard of preliminary legal protection proceedings, especially since no specific circumstances in the individual case are apparent, nor have they been presented by the applicant, that would permit a different assessment.
In view of the continued violation of the obligations to cooperate under Sections 48 and 49 of the Residence Act – the applicant has not presented any further evidence of cooperation – the Senate cannot address the question of the constitutionality of a permanent, across-the-board reduction of benefits below the benefit level of Book XII of the German Social Code (see Oppermann/Filges in: Schlegel/Voelzke, jurisPK-SGB XII, 3rd edition, Section 2 Asylum Seekers' Benefits Act).<Stand: 19. Dezember 2022> , Rn. 118) from the perspective of proportionality.
After all this, the applicant has credibly demonstrated an entitlement to benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) for the period from July 14, 2021, to August 31, 2021; further periods are no longer in dispute following the accepted partial acknowledgment. She, who lives in communal accommodation, is entitled to these benefits, taking into account the decision of the Federal Constitutional Court of October 19, 2022 – 1 BvL 3/21 – to the extent of standard benefit level 1. With this decision, the Federal Constitutional Court reconciled Section 2 Paragraph 1 Sentence 1 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG) with Article 1 Paragraph 1 of the Basic Law (GG). The Federal Constitutional Court has declared the provision incompatible with the social welfare principle enshrined in Article 20 Paragraph 1 of the Basic Law, insofar as a standard allowance for a single adult is only recognized at the level of standard allowance level 2, and has ordered, until a new regulation is enacted, that Section 28 of the German Social Code, Book XII (SGB XII) in conjunction with the Standard Allowance Determination Act and Sections 28a and 49 of the SGB XII shall apply mutatis mutandis to beneficiaries of benefits under Section 2 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG), with the proviso that, in the case of accommodation in communal accommodation within the meaning of Section 53 Paragraph 1 of the Asylum Act (AsylG) or a reception facility under Section 44 Paragraph 1 of the Asylum Act (AsylG), a standard allowance at the level of the respective current standard allowance level 1 shall be used as the basis for calculating benefits for each single adult. Insofar as the Federal Constitutional Court limited its order to those entitled to benefits under Section 2 Paragraph 1 Sentence 1 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG) and those entitled to benefits under Sections 3, 3a Paragraph 1 No. 2 Letter b) and Paragraph 2 No. 2 Letter b) of the AsylbLG are not covered by the order, the constitutional issues of the regulations in Section 3a of the AsylbLG are comparable, since there is also no sound evidence that savings are regularly achieved or can be achieved in collective accommodations through shared resources that would justify a 10% reduction in benefits. Just as the respondent himself now evidently assumes, as evidenced by his partial admission of liability, the Senate therefore assumes that the order of the Federal Constitutional Court must also be implemented accordingly in the area of application of basic benefits under Sections 3 and 3a of the AsylbLG. This also corresponds to the relevant decree situation of the Hessian Ministry for Social Affairs and Integration, which is responsible for the respondent in this respect and to which the Senate referred in its order of December 12, 2022.
In view of the monthly difference between the applicant's benefits granted under Section 1a AsylbLG in the amount of 173 euros (p. 154 VA) and the benefits provisionally due to her under Sections 3 and 3a AsylbLG in the standard benefit level 1 amounting to 364 euros, which is 191 euros, and considering the comparatively short, still relevant period of approximately 1 1/2 months, grounds for an injunction must be affirmed in view of the impact on the constitutionally protected minimum subsistence level; the amount of almost 290 euros exceeds the de minimis threshold.
The decision on costs follows from the corresponding application of Section 193 of the Social Court Act (SGG) and also takes into account the accepted partial admission.
The applicant's appeal against the Social Court's rejection of her application for legal aid was to be granted. Sufficient prospects of success for the legal action at first instance within the meaning of Section 73a of the Social Court Act (SGG) in conjunction with Sections 114 et seq. of the Code of Civil Procedure (ZPO) were, in light of all the above, to be affirmed.
Pursuant to Section 73a Paragraph 1 Sentence 1 of the Social Court Act (SGG) in conjunction with Section 127 Paragraph 4 of the Code of Civil Procedure (ZPO), the costs of the appeal proceedings are not to be reimbursed.
This decision is final and cannot be appealed pursuant to Section 177 of the Social Court Act (SGG).
