DECISION
S 27 AY 4023/22 ER
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 December 29, 2022, through Judge xxx:
The respondent is ordered by way of preliminary injunction to grant the applicant, provisionally subject to the right of recovery, privileged benefits pursuant to Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with the German Social Code, Book XII (SGB XII), by analogy, for the period from December 7, 2022, until the decision in the main proceedings, but no later than June 7, 2023, taking into account any benefits already provided for this period.
The respondent must reimburse the applicant for his necessary extrajudicial costs.
The applicant is granted legal aid without installment payments, with the appointment of lawyer Sven Adam, Göttingen.
REASONS
The application for an interim injunction with the aim of granting 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 – by analogy is successful.
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).
Within the scope of the summary examination required in the preliminary injunction proceedings, the applicant has credibly demonstrated to the satisfaction of the Chamber a claim to privileged benefits.
1.)
Based on the current state of the facts and legal arguments, and following a summary review of the facts and the law, the applicant's benefits have been wrongly reduced pursuant to Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG).
According to Section 1a Paragraph 3 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) (as amended on August 15, 2019), those entitled to benefits under Section 1 Paragraph 1 Numbers 4 and 5 of the AsylbLG, i.e., persons subject to enforceable deportation with or without tolerated stay, for whom deportation measures cannot be enforced due to reasons attributable to them, only receive benefits in accordance with Section 1a Paragraph 1 of the AsylbLG, starting on the day following the enforceability of a deportation threat or deportation order. This means they are only entitled to significantly reduced benefits; they are not entitled to benefits under Sections 2, 3, and 6 of the AsylbLG. Abuse of benefits within the meaning of Section 1a Paragraph 3 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) includes, in particular, a violation of the obligation stipulated in Section 48 Paragraph 3 of the Residence Act (AufenthG) for a foreigner without a valid passport or passport substitute to cooperate in obtaining an identity document and establishing their identity and nationality (Federal Social Court [BSG], Judgment of May 12, 2017 – B 7 AY 1/16 R – juris para. 15 with further references to the predecessor provision of Section 1a No. 2 AsylbLG aF). A restriction of benefits under Section 1a Paragraph 3 Sentence 1 AsylbLG further requires that the foreigner has engaged in culpable conduct and that this conduct is the cause of the unenforceability of measures terminating their residence. The Federal Social Court has thus far left open the question of whether merely negligent conduct can also fulfill the elements of a restriction of benefits (Federal SocialBSG], ibid., juris para. 17). In addition, the immigration authorities must demonstrate a genuine effort to return the individual to their country of origin (BSG, loc. cit., juris para. 18 with further references). A problem arises when there is not a single, conditio sine qua non that constitutes the impossibility of terminating the residence, but rather several. In such cases, it must first be determined whose sphere of responsibility these causes fall under. If multiple causes exist for the impossibility of terminating the residence, the benefit recipient may only be held accountable for those reasons for which they are solely responsible. Causes that fall within the sphere of responsibility of the immigration authorities, the country of origin, or the political arena, and which also causally influence the impossibility of terminating the residence, are ineligible for a restriction of benefits. Ultimately, this means that the cause attributable to the benefit recipient must be the sole cause and the one that justifies the restriction of benefits (so-called monocausality). However, those entitled to benefits are not required to accept any risks that lie outside their sphere of responsibility (Opperman in jurisPK-SGB XII, 3rd ed. 2020, § 1a para. 86; BSG, judgment of 27.2.2019 – B 7 AY 1/17 R – juris para. 27).
In the present case, the Chamber can leave open the question of whether the plaintiff can be accused of benefit-abusing conduct within the meaning of Section 1a Paragraph 3 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG), because the monocausality required under Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) is already lacking.
In light of the current situation in Iran, the court still has doubts as to whether, even with the submission of a so-called declaration of voluntary return, the applicant's deportation is possible and whether his conduct can therefore be considered "monocausal." To the extent that the respondent argues that there is no formal moratorium on deportations to Iran, this cannot currently be substantiated in light of the explicit statement issued by the Lower Saxony Minister of the Interior and Sport, Boris Pistorius, on October 6, 2022. The decree issued by the Lower Saxony Ministry of the Interior and Sport on October 13, 2022 (page 25 of the court file), submitted by the respondent, indicates that while there is no formal moratorium on deportations to Iran pursuant to Section 60a Paragraph 1 of the Residence Act (AufenthG), Deportation – according to the decree of October 13, 2022 – is only considered for individuals deemed a threat to public safety, criminals, and persistent refusals to disclose their identity. The decree specifies that persistent refusals to disclose their identity include, in particular, individuals who use numerous aliases or have committed welfare fraud using aliases. Additionally, persistent refusal to cooperate in obtaining a passport or equivalent travel document, demonstrably false statements regarding identity during asylum proceedings, or actions of comparable gravity can be considered in the assessment.
Measured against these criteria, the applicant does not meet these requirements. It is undisputed that the applicant is neither a threat to public safety nor a criminal. The court is also convinced that the applicant is not a persistent identity refuser within the meaning of the aforementioned decree. This is because the applicant has not used a large number of aliases. Insofar as the respondent claims that the applicant refuses to cooperate in obtaining passports or substitute passport documents, reference is made to the aforementioned decree of October 13, 2022, which states that this characteristic of a person entitled to benefits in addition to the use of a large number of aliases. This is precisely not the case.
In view of the importance of the benefit restriction for guaranteeing a dignified minimum standard of living, the Chamber therefore considers a balancing of interests necessary in the present case due to existing doubts about the possibility of repatriation, which is decided in favor of the applicant in the sense of securing the minimum standard of living.
The applicant is therefore entitled to privileged benefits pursuant to Section 2 Paragraph 1 in conjunction with SGB XII by analogy.
2.)
The applicant has credibly demonstrated grounds for an injunction. A particular urgency arises from the essential nature of the requested benefits, which are crucial for securing the applicant's livelihood.
3.)
The decision on costs follows analogously from Section 193 Paragraph 1 of the Social Court Act (SGG).
4.)
Due to the prospects of success, the applicant was to be granted legal aid in accordance with Sections 73a SGG, 114 et seq. ZPO.
The following is information on legal remedies.
