DECISION
S 27 AY 4023/22 ER
In the litigation
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:
By way of an interim order, the respondent is obliged to provisionally provide the applicant with privileged benefits in accordance with Section 2 AsylbLG in conjunction with the reservation of repayment. SGB
The respondent must reimburse the applicant for his necessary out-of-court costs.
The applicant is granted legal aid without payment in installments with the assistance of lawyer Sven Adam, Göttingen.
REASONS
The application for the issuance of an interim order with the aim of provisionally granting privileged benefits in accordance with Section 2 Paragraph 1 of the Asylum Seekers Benefits Act (AsylbLG) in conjunction with the Social Code Twelfth Book (SGB XII) - social assistance - analogously was successful.
According to Section 86b Paragraph 2 of the Social Court Act (SGG), the court can, upon request, issue an interim order with regard to the subject matter of the dispute if there is a risk that a change in the existing situation could thwart or significantly impede the realization of one of the applicant's rights. According to Section 86b Paragraph 2 Sentence 2 SGG, interim orders are also permissible to regulate a provisional situation with regard to a disputed legal relationship if such a regulation appears necessary to prevent significant disadvantages. In this context, the granting of interim legal protection requires a claim to an order, i.e. a substantive legal claim to the performance to which the respondent is to be made by way of interim legal protection, as well as a reason for the order, namely a fact that justifies the urgency of the order . According to Section 86b Paragraph 2 Sentence 4 SGG in conjunction with Section 920 Paragraph 2 ZPO, the reason for the order and the claim for the order must be made credible. Insofar as the prospects are taken into account in connection with the right to an order, the factual and legal situation must be examined not only summarily but conclusively (cf. Federal Constitutional Court (BVerfG), decision of May 12, 2005 - 1 BvR 569/05 - ). . Furthermore, the credible justification refers only to the reduced density of examinations and the certainty of conviction, which only requires a preponderance of probability, for the actual requirements of the claim for an order and the reason for the order (cf. decisions of the Hessian State Social Court (LSG) of June 29, 2005 - L 7 AS 1 /05 ER -, and from February 12, 1997 - L 7 AS 225/06 ER -; Berlit, info also 2005, 3, 8 ).
As part of the summary examination required in the interim legal protection procedure, the applicant credibly demonstrated a claim to privileged benefits to convince the Chamber.
1.)
According to the current status of the facts and the dispute, after a summary examination of the factual and legal situation, the applicant's benefits have been wrongly reduced in accordance with Section 1a (3) AsylbLG.
According to Section 1a Paragraph 3 Sentence 1 AsylbLG (in the version dated August 15, 2019), those entitled to benefits pursuant to Section 1 Paragraph 1 Nos. 4 and 5 AsylbLG, i.e. persons who are legally obliged to leave the country with or without toleration, receive benefits for those for whom they are responsible Measures terminating your stay cannot be carried out for reasons, only benefits in accordance with Section 1a Paragraph 1 AsylbLG on the day following the enforceability of a deportation threat or the enforceability of a deportation order. This means that they are only entitled to significantly reduced benefits; They are not entitled to benefits according to Sections 2, 3 and 6 AsylbLG. Misuse of benefits within the meaning of Section 1a Paragraph 3 Sentence 1 AsylbLG is, in particular, the violation of the obligation of a foreigner without a valid passport or passport replacement, as set out in Section 48 Paragraph 3 Residence Act, to obtain an identity document and to establish his identity and nationality to participate ( BSG, judgment of May 12, 2017 - B 7 AY 1/16 R - juris para. 15 with further references to the previous provision of Section 1a No. 2 AsylbLG old version ). A limitation of claims according to Section 1a Paragraph 3 Sentence 1 AsylbLG also requires that the foreigner has behaved in a way that is reprehensible and that this behavior is the cause of the impossibility of implementing measures terminating the stay, although the BSG has so far left it open whether merely negligent behavior also constitutes a limitation of the claim can fulfill ( BSG, loc. cit., juris para. 17 ). In addition, there must be a serious effort by the immigration office to return the person concerned to their home country ( BSG, ibid., juris para. 18 with further references ). It is problematic if there is not a single cause in the sense of a sine qua non for the impossibility of implementing the measures ending your stay, but rather there are several reasons for this. Then it must first be checked whose area of responsibility these causes fall. If there are several reasons for the impossibility of taking measures to end your stay, those entitled to benefits may only be credited with the reasons for which they are solely responsible. Causes that are within the area of responsibility of the immigration authorities, the home country or in the political sphere and which also causally influence the impossibility of terminating the stay are not eligible for a restriction of entitlement. As a result, this means that the cause set by the beneficiary must be the only one and the one that justifies the restriction of entitlement (so-called monocausality). However, those entitled to benefits do not have to accept any risks that lie outside their area of responsibility ( Opperman in jurisPK-SGB 27 ).
In the present case, the Chamber can leave it open as to whether the plaintiff can be accused of abusive behavior within the meaning of Section 1a Paragraph 3 Sentence 1 AsylbLG because the monocausality required under Section 1a Paragraph 3 AsylbLG is already lacking.
Given the current conditions in Iran, the Chamber still has doubts as to whether the applicant's repatriation is possible even if the so-called voluntary declaration is submitted and his behavior can therefore be viewed as “mono-causal”. To the extent that the respondent points out that there is no formal deportation stop for Iran, this cannot currently be understood in view of the express statement by the Lower Saxony Minister for the Interior and Sport, Boris Pistorius, on October 6, 2022. The decree of the Lower Saxony Ministry of the Interior and Sport of October 13, 2022 (page 25 of the court file) submitted by the respondent shows that there is no formal deportation stop in accordance with Section 60a Paragraph 1 of the Residence Act (AufenthG) for Iran. Deportation - according to the decree of October 13, 2022 - is only possible for those who are dangerous, criminals and those who stubbornly refuse to identify. According to the order, persistent impersonators are, in particular, individuals who use a variety of alias identities or who have committed benefit fraud using alias identities. In addition, a persistent refusal to cooperate in obtaining a passport or passport replacement paper, demonstrably false information regarding identity in the asylum procedure or actions of comparable weight can be taken into account in the assessment.
Based on this, the applicant does not meet these requirements. It is undisputed that the applicant is neither a threat nor a criminal. The Chamber is convinced that the applicant is also not a stubborn denier of identity within the meaning of the above-mentioned decree. This is because the applicant has not used a variety of alias identities. If the respondent claims that the applicant refuses to cooperate in the procurement of passport or passport replacement documents, it is pointed out, with reference to the above-mentioned decree of October 13, 2022, that this characteristic of a person entitled to benefits is in addition to the use of a large number of aliases - Identities must be available. This is not the case right now.
In view of the importance of the restriction of benefits for the granting of a humane subsistence minimum, the Chamber therefore considers that, due to existing doubts about the possibility of repatriation, a weighing of the consequences is necessary in the present case, which is in favor of the applicant in the sense of securing the subsistence minimum.
The applicant is therefore entitled to privileged benefits in accordance with Section 2 Paragraph 1 in conjunction with SGB XII.
2.)
The applicant has credibly presented a reason for the order. A particular urgency arises from the subsistence-securing nature of the services sought.
3.)
The cost decision follows analogously from Section 193 Paragraph 1 SGG.
4.)
Due to the prospect of success, the applicant was granted legal aid in accordance with Sections 73a SGG, 114 ff. ZPO.
Instructions on legal remedies follow.
