VERDICT
S 27 AY 95/21
In the legal dispute
xxx,
– Plaintiff –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
Göttingen District,
represented by the District Administrator,
Reinhäuser Landstraße 4, 37083 Göttingen
– Defendant –
The 27th Chamber of the Social Court of Hildesheim, in its oral hearing of December 7, 2022, with Judge xxx and Lay Judges xxx and xxx presiding, has ruled as follows:
1. The defendant is ordered, by amending the decision of 30 December 2020 as modified by the appeal decision of 4 May 2021, to grant the plaintiff 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 1 February 2021 to 31 July 2021, less any benefits already provided for this period.
2. The defendant shall reimburse the plaintiff for his necessary extrajudicial costs.
3. The appeal is admitted.
FACTS
The plaintiff seeks to be granted higher benefits under the Asylum Seekers' Benefits Act (AsylbLG) for the period from 01.02.2021-31.07.2021.
The plaintiff, born in Göttingen in 19xx, holds Lebanese citizenship. Following his deportation in 1999, he re-entered Germany on October 26, 2015, according to his own statements. The Federal Office for Migration and Refugees (BAMF) rejected the plaintiff's asylum application by decision dated August 18, 2017. His subsequent legal action was dismissed by the Göttingen Administrative Court (VG Göttingen, judgment of June 10, 2020 – 1 A 67/18). The plaintiff holds a temporary suspension of deportation for persons with unclear identity.
By letter dated October 28, 2015, he was assigned to the local jurisdiction of the defendant, who initially granted the plaintiff basic benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG). During the period in question, he had neither available income nor realizable assets.
By decision dated December 30, 2020, 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, from February 1, 2021, to July 31, 2021. By decision on the objection dated May 4, 2021, the defendant rejected the plaintiff's objection of February 1, 2021, as unfounded. The defendant reasoned that the plaintiff had not cooperated in obtaining his passport or substitute travel document (so-called laissez-passer). The plaintiff's consistent refusal to apply for a substitute travel document constituted the sole reason for his continued residence in Germany.
The plaintiff filed a lawsuit on June 7, 2021, with the Hildesheim Social Court against this decision. He argues that he did not abuse his rights by influencing the duration of his stay in Germany. He contends that one of the prerequisites for issuing a national passport is the presentation of a valid residence permit for the Federal Republic of Germany or a certificate from the immigration authorities confirming that a residence permit exists or can be issued.
The plaintiff requests that
the defendant, by amending the decision of 30 December 2020 as modified by the appeal decision of 4 May 2021, be ordered to grant the plaintiff privileged benefits pursuant to Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with the Social Code Book XII (SGB XII) by analogy for the period from 1 February 2021 to 31 July 2021.
The defendant requests
that the action be dismissed.
He argues that deportation measures are failing due to the plaintiff's lack of a passport and his refusal to cooperate in obtaining one or a substitute travel document. The defendant's immigration office repeatedly informed the plaintiff of his passport requirement. Obtaining a passport is made more difficult by the fact that the Lebanese embassy requires a residence permit to apply for one. By letter dated December 2, 2019, the plaintiff was instructed to request the form "Application for a Return Travel Document for Persons Illegally Residing in Germany" from a separate office at the Lebanese embassy. This form does not require a residence permit or a certificate confirming the granting of a residence permit. The plaintiff refused to accept the certificate for submission to the Lebanese embassy.
For further details of the facts and the submissions of the parties, reference is made to the contents of the court files as well as the administrative and immigration files of the defendant.
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 – in particular having been filed within the prescribed time limit – is well-founded.
The contested decision of 30 December 2020, as amended by the decision on the objection of 4 May 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 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 disputed period from February 1, 2021 to July 31, 2021, taking into account benefits already provided under the 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 influencing the duration of his stay in the federal territory, the court is convinced that the other prerequisites for an entitlement to analogous benefits to secure his livelihood are met:
a.
The plaintiff is entitled to benefits under the Asylum Seekers' Benefits Act (AsylbLG) as a tolerated person pursuant to Section 1 Paragraph 1 No. 4 of the AsylbLG. While a tolerated stay for persons with unclear identity pursuant to Section 60b of the Residence Act (AufenthG) is not explicitly mentioned in Section 1 Paragraph 1 No. 4 of the AsylbLG, it nevertheless falls under this provision because this tolerated stay is (also) a tolerated stay within the meaning of Section 60a of the Residence Act "for persons with unclear identity". This follows directly from Section 60b Paragraph 1 Sentence 1 of the Residence Act (Lower Saxony-Bremen State Social Court (LSG), decision of July 9, 2020 – L 8 AY 52/20 B ER – juris para. 22; see also Frerichs in: Schlegel/Voelzke, jurisPK-SGB XII, 3rd edition, Section 1 Asylum Seekers' Benefits Act (as of December 19, 2022), para. 136).
b.
The plaintiff has also resided in Germany for a sufficiently long period of time without interruption since his entry in October 2015. It is therefore irrelevant whether an uninterrupted stay of 18 months or, due to the transitional provision of Section 15 of the Asylum Seekers' Benefits Act (AsylbLG), the previously applicable period of residence of 15 months applies (cf. Lower Saxony-Bremen Higher Social Court, decision of September 28, 2021 – L 8 AY 19/21 B ER).
c.
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.
Measured against this standard, the plaintiff, in the court's opinion, did not infringe upon the duration of his stay in the federal territory through his own conduct in a manner abusive within the meaning of Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG).
According to Section 48 Paragraph 3 of the Residence Act, a foreigner who does not possess a valid passport or passport substitute is obligated to cooperate in obtaining identity documents and to present, hand over, and surrender to the authorities entrusted with the implementation of this law, upon request, all documents, other records, and data carriers in their possession that may be relevant for establishing their identity and nationality and for determining and asserting a possibility of return to another state (see Higher Administrative Court (OVG) Berlin-Brandenburg, Judgment of October 16, 2018 – OVG 3 B 4.18 – juris para. 22; Administrative Court Munich, Decision of September 5, 2018 – M 25 S 18.2249 – juris para. 17; Administrative Court Hamburg, Judgment of November 2, 2010 – 8 K 1605/10 – juris para. 20). According to administrative court rulings, foreigners are therefore obligated not only to submit the required documents and appear in person at the foreign mission of their home country, but also, if the identity document is not issued within a reasonable time, to regularly inquire about the reasons for the processing time and persistently request the issuance of the document (see Higher Administrative Court Berlin-Brandenburg, judgment of October 16, 2018 – OVG 3 B 4.18 – juris para. 22; Administrative Court Munich, decision of September 5, 2018 – M 25 S 18.2249 – juris para. 17; Administrative Court Hamburg, judgment of November 2, 2010 – 8 K 1605/10 – juris para. 20). However, the immigration authority must have specifically updated its legal obligations to cooperate with the person concerned, e.g., regarding the procurement of identity documents (§ 48 para. 3 of the Residence Act), in order to be able to draw negative consequences under residence law from the lack of cooperation (Federal Administrative Court (BVerwG), judgment of 26 October 2010 – 1 C 18/09 – juris para. 17; Social Court Munich, decision of 31 January 2017 – S 51 AY 122/16 ER – juris para. 40). Furthermore, Sections 82 Paragraph 3 Sentence 1 and 71 Paragraph 1 of the Residence Act impose a duty on the immigration authority to provide information, as it generally has better contacts and knowledge regarding the existing possibilities for obtaining travel documents for the return home (Higher Administrative Court of Berlin-Brandenburg, Judgment of 21 February 2017 – OVG 3 B 14.16 – juris Rn. 24 with further references).
Based on these criteria, the fact that the plaintiff failed to cooperate in obtaining a substitute travel document in the past does, in principle, indicate a violation of identification-related obligations under Section 48 of the Residence Act. After all, the plaintiff admitted in the oral hearing of December 7, 2022, that he had never applied for a substitute travel document at the Lebanese embassy. However, the court is not convinced that this violation of his residence-related obligations leads to the exclusion of privileged benefits under Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act. This is because the defendant initially failed to adequately inform the plaintiff of the cooperation measures that could reasonably be expected of him in this specific case. While the defendant's immigration authority did repeatedly and unambiguously inform the plaintiff orally (for example, on September 13, 2018, June 17, 2019, September 12, 2019, and October 15, 2019), this did not constitute sufficient evidence of his failure to comply with the requirements of the immigration authority. However, the defendant's immigration office failed to inform the plaintiff that attempts to obtain passport documents from the Lebanese embassy would be futile, as the plaintiff did not possess a residence permit. The court is convinced that, in this particular case, the decisive factor is the specific circumstance arising from the plaintiff's nationality. The Lower Saxony-Bremen State Social Court has already addressed this issue as follows (see Lower Saxony-Bremen State Social Court, decision of March 15, 2021 – L 8 AY 102/20 B ER, decision of June 15, 2021 – L 8 AY 12/21 B ER; decision of November 1, 2022 – L 8 AY 24/22 B ER):
"The Senate is also aware from other court proceedings (see Senate decision of July 9, 2019 – L 8 SO 7/19 B ER –) that the Lebanese Embassy makes the issuance of a passport in accordance with the information sheet submitted by the applicants contingent upon proof of a valid residence permit or confirmation from the immigration office that the passport is required for the issuance or renewal of such a permit.
(...)
In the Senate's opinion, these special circumstances lead to increased requirements for the immigration office to specify the applicants' obligations to cooperate, particularly regarding the (generally reasonable) procurement of birth certificates, civil status extracts, or other extracts from registers kept in the applicants' home country, involving relatives living abroad or trusted lawyers."
The court found that the specific cooperation obligations stipulated in Section 60 of the Residence Act (AufenthG) were not clearly defined. However, foreigners cannot be required to perform an act of cooperation that is clearly futile from the outset (Oppermann/Filges in: Schlegel/Voelzke, jurisPK-SGB XII, 3rd ed., Section 2 Asylum Seekers' Benefits Act (AsylbLG) (as of December 21, 2022), para. 88). It must be considered that the conduct of the authorities is also significant, in particular whether they clearly and unambiguously communicated to the foreigners which specific acts of cooperation were required. Only by considering the aforementioned criteria can it ultimately be assessed whether a violation of cooperation obligations objectively justifies the allegation of abuse of process. Considering the serious consequences of a permanent exclusion from privileged benefits in cases of abuse of rights, strict requirements must be placed on the determination of abusive conduct in cooperation (Oppermann/Filges in: Schlegel/Voelzke, jurisPK-SGB XII, 3rd ed., § 2 AsylbLG (as of 21.12.2022), para. 89).
Measured against this standard, the information sheets submitted by the plaintiff, which document his visit to the Lebanese Embassy in Berlin, do indeed prove that he went to the embassy to obtain a passport. However, the plaintiff credibly demonstrated in the oral hearing of December 7, 2022, that he was unaware of the distinction between "passport document" and "substitute passport document" in the past—and thus during the period in question. The plaintiff undisputedly visited the Lebanese Embassy several times and inquired with the defendant's immigration office about what further steps he could take (see email of October 8, 2019, p. 174 of the immigration file). In response to the defendant's immigration office's reply of October 10, 2019 (p. 175 of the immigration file), he submitted an extract from the register (pp. 185 ff. of the immigration file). Finally, it must be considered that the defendant's immigration authority only informed the plaintiff in writing of his reasonable cooperation obligations under Section 60b Paragraph 3 of the Residence Act (AufenthG) starting with the letter of March 11, 2020. However, even then, the plaintiff was not informed of the futile possibility of applying for a passport at the Lebanese embassy due to a lack of residence permit. In light of the aforementioned case law of the Lower Saxony-Bremen State Social Court (LSG Niedersachsen-Bremen), the defendant's immigration authority should have informed the plaintiff of the specific cooperation obligations relevant to his individual case – in particular, the potential application for a substitute passport document at the separate office of the Lebanese embassy. This information was not provided. Instead, the defendant's immigration authority informed the plaintiff of the general cooperation obligations pursuant to Section 60b Paragraph 3 of the Residence Act (AufenthG).
Insofar as the defendant claims to have informed the plaintiff of the specific steps he had to take to obtain the substitute travel documents – namely, by appearing at the designated office of the embassy and receiving the application form "Application for a return travel document for a person residing illegally in Germany" – the plaintiff disputes this, citing language difficulties. Since an interpreter was never present during the personal appearances at the immigration office, these evidentiary uncertainties are to the detriment of the defendant (see Lower Saxony-Bremen Higher Social Court, judgment of December 8, 2016 – L 8 AY 33/13). The court is convinced that the plaintiff could have understood that he had to present a passport. Following the oral hearing on December 7, 2022, the court concluded that the plaintiff was unable to differentiate between obtaining passport documents and substitute passport documents (see also Lower Saxony-Bremen Higher Social Court, decision of March 15, 2021 – L 8 AY 102/20 B ER). This is further supported by the fact that the plaintiff only received the certificate from the immigration authorities with the assistance of his fiancée.
The defendant correctly stated that the plaintiff had already been informed by letter from the benefits agency – and not by the defendant's immigration office pursuant to Sections 82 Paragraph 3, 71 Paragraph 1 of the Residence Act – dated December 2, 2019 (page 216 of the administrative file), that he could apply for a substitute passport at the Lebanese embassy. However, this letter also failed to indicate that efforts to obtain passport documents there would be unsuccessful for the plaintiff.
Ultimately, the decisive factor is that – contrary to the defendant's assertion – even for the issuance of a substitute travel document, a certificate from the immigration authorities confirming that a residence permit will be granted upon presentation of a valid substitute travel document is required. This is already evident from the information sheet issued by the Embassy of Lebanon regarding the application for or renewal of a laissez-passer for persons whose nationality is "à l'étude" (with unclear identity). The defendant's argument that the plaintiff's nationality is not unclear fails to convince the court. After all, despite submitting a birth certificate issued by the city of Göttingen in 1994, the plaintiff holds a temporary suspension of deportation for "persons with unclear identity" pursuant to Section 60b of the German Residence Act.
The court is therefore unable to identify any abuse of rights in influencing the length of stay. In particular, there is no evidence of intentional misconduct on the part of the plaintiff.
2.
Therefore, the plaintiff is entitled to privileged benefits 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.
The decision on costs follows from Section 193 Paragraph 1 of the Social Court Act (SGG).
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