DECISION
in the proceedings
xxx,
– Applicant –
Proc.-Bev.:
Sven Adam
Lange-Geismar-Str. 55, 37073 Göttingen
against
The State of Baden-Württemberg,
represented by the state capital Stuttgart, which is represented by the
Mayor,
Eberhardstr. 33, 70173 Stuttgart
– Respondent –
The 20th Chamber of the Stuttgart Social Court decided on January 27, 2023, through Judge xxx of the Social Court, without oral proceedings:
- The respondent is ordered by way of preliminary injunction to grant the applicant benefits pursuant to Sections 1 and 3 of the Asylum Seekers' Benefits Act (AsylbLG) at standard benefit level 1 and not – as previously – at standard benefit level 2, provisionally and subject to the right of recovery, from 13 December 2023 until a final decision is reached on the applicant's objection of 13 December 2022.
- Furthermore, the application is rejected.
- The respondent shall bear the applicant's extrajudicial costs.
REASONS
I.
The point of contention in the preliminary injunction proceedings is the amount of benefits payable under the Asylum Seekers' Benefits Act (AsylbLG). In particular, it is disputed whether the benefits granted to the applicant should be based on standard benefit level 1 or 2.
The applicant, born in 1997, is a Guinean national. He first entered the Federal Republic of Germany on August 14, 2018. Since March 25, 2020, he has held a certificate of suspension of deportation (tolerated stay) pursuant to Section 60a Paragraph 2 Sentence 1 of the Residence Act.
By decision dated March 24, 2022, the respondent granted the applicant limited benefits pursuant to Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) for the period from January 1, 2022 to June 30, 2022. Subsequently, the applicant was granted limited benefits by implied decisions for the period from July 1, 2022 onwards.
The applicant filed a review request against the decision of March 24, 2022, by letter dated November 14, 2022. A review decision has not yet been issued.
The applicant filed an objection by letter dated December 13, 2022, against the decisions for the period from July 1, 2022. A decision on the objection has not yet been issued.
On December 13, 2022, the applicant requested preliminary legal protection from the Stuttgart Social Court, arguing essentially that the imposed sanction was unconstitutional. This was all the more true, he asserted, since a reduction of the standard benefit by more than 50 percent was incompatible with Article 1 of the Basic Law (GG). Furthermore, the applicant argued that he should be granted benefits based on standard benefit level 1. The needs of benefit recipients in communal accommodations did not differ significantly from the needs of single adult benefit recipients living in an apartment as defined in Section 8 Paragraph 1 Sentence 2 of the Standard Benefit Determination Act. Consequently, the legislature had not even attempted to substantiate the discrepancy in a transparent process based on the actual needs of this specific group. Instead, the legislature merely asserted that communal accommodation for residents of such facilities resulted in savings comparable to those in two-person households. The concept of savings through shared finances, expressed in needs assessment level 2 for couples, can be applied to benefit recipients who share certain facilities (kitchen, bathrooms, common rooms, etc.) in communal accommodations. Here, too, the shared use of living space enables synergy effects, as certain household-related expenses are not borne by each benefit recipient individually, but are divided among the residents or shared by them collectively. This applies, for example, to personal media needs, as landline or internet connections are regularly provided for communal use in communal accommodations. Further savings result, under the aforementioned conditions, from the possibility of shared use or exchange regarding leisure, entertainment, and cultural needs (Section 9 of the 2013 Income and Expenditure Survey). Furthermore, accommodation in communal housing would result in savings on essential food needs (Section 1 of the 2013 Income and Expenditure Survey), for example, by purchasing food or at least basic kitchen supplies in larger quantities and using them together in communal kitchens. The resulting savings for adult residents of communal housing are comparable to those achieved in two-person households (Explanatory Memorandum, Bundestag Printed Matter 19/10052, p. 24). When regulating the provision of subsistence benefits, the legislature has discretion to make a standardized assessment of the circumstances, based on actual needs, to determine the necessary subsistence benefits, provided this assessment does not appear unreasonable. The Federal Government made this assessment based on the assumption that it is possible and reasonable for residents of communal housing to achieve the aforementioned savings, comparable to those of two-person households, through shared resource management. Those receiving benefits under the Asylum Seekers' Benefits Act (AsylbLG) who are housed in communal accommodations can be expected to cooperate beyond simply sharing accommodation-related expenses. These individuals, regardless of their origin, are in the same life situation during the asylum process and, in effect, form a community of shared fate. Their right to remain in Germany has not yet been definitively determined. They participate in language courses and integration measures and, as newly arrived refugees, are in a comparable transitional situation that binds them together. Shared accommodation with other benefit recipients facilitates the swift processing of their applications. In this unique temporal and spatial situation, they have a duty to make all reasonable efforts to get along with one another in the communal accommodation (Explanatory Memorandum, Bundestag Printed Matter 19/10052, p. 24). The reason given for the reduction in benefits is an alleged "solidarity in communal accommodation" and the resulting synergy and cost savings (explanatory memorandum, Bundestag printed matter 19/10052, p. 25). In reality, however, people living together do not benefit from cost savings comparable to those of couples living in shared accommodation because they do not manage their finances jointly. According to the Federal Social Court's jurisprudence on cohabiting couples, the requirements for joint management extend beyond the shared use of bathrooms, kitchens, and, if applicable, common rooms (Federal Social Court, judgment of August 23, 2012 – Case No.: B 4 AS 34/12 R): Even the common practice in shared accommodation of jointly purchasing basic foodstuffs, cleaning supplies, and toiletries from a communal fund contributed equally by all residents does not constitute a shared household. Crucially, the household must be managed by both partners, with their respective contributions depending on their economic and physical capabilities. The actual management of the household and the covering of its expenses must be a joint effort by both partners, but this does not mean that the financial contribution to the household or the value of the household management itself must be equal. An agreement between the partners on how to divide the household responsibilities for the benefit of their relationship is sufficient. Shared financial management comparable to that of partners does not occur in refugee accommodations; corresponding opportunities to claim support from other benefit recipients are not available.
The applicant requests that
the respondent be ordered, by way of an interim injunction, to grant the applicant, provisionally and subject to the right of recovery, the requested benefits in the statutory amount from the date of receipt of this application by the court, for the period from 1 July 2022 onwards, taking into account the legal opinion of the court, for the period from 1 July 2022 onwards, until a final and binding decision is reached on the applicant's objection of 13 December 2022 against the de facto granting of benefits under the Asylum Seekers' Benefits Act (AsylbLG) by the respondent.
The respondent requests that
the application be rejected.
For the period from December 1, 2022, to January 31, 2023, the applicant was granted limited benefits pursuant to Section 1 Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG). The applicant failed to demonstrate any grounds for an injunction. Rather, it was deemed reasonable for the applicant to await a decision from the respondent regarding his objection and any subsequent legal proceedings. The applicant's statements provided no substantial indication that his financial resources were exhausted. The applicant also failed to demonstrate any entitlement to an injunction. The temporary suspension of deportation issued on November 25, 2022, continues to certify the suspension of deportation pursuant to Section 60a Paragraph 2 Sentence 1 of the Residence Act (AufenthG) due to a lack of travel documents. Only after the respondent inquired with the immigration authority on December 15, 2022, was the respondent informed that the applicant was currently fulfilling his obligation to cooperate. The respondent therefore rescinds the benefit restriction pursuant to Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) and grants the applicant benefits pursuant to Sections 1 and 3 of the AsylbLG at standard benefit level 2 for the period from December 1, 2022 to January 31, 2023. The difference between this amount and the already granted restricted benefits for December 2022 and January 2023 will be transferred to the applicant's account on January 4, 2023.
For further details of the facts and the other submissions of the parties, reference is made to the court file and the administrative file.
II.
The application for an interim injunction is admissible and well-founded.
According to Section 86b Paragraph 2 Sentence 2 of the Social Court Procedure Act (SGG), preliminary injunctions to regulate a provisional state of affairs with regard to a disputed legal relationship are permissible if such regulation appears necessary to avert substantial disadvantages. A prerequisite for issuing a preliminary injunction is that the applicant possesses a right or a legally protected interest (claim for an injunction) which would be thwarted or substantially impeded without the granting of preliminary legal protection, such that the applicant would suffer serious, unreasonable disadvantages that could no longer be remedied by a subsequent decision on the merits (ground for an injunction). The claim for an injunction and the ground for an injunction must be substantiated (Section 86b Paragraph 2 Sentence 4 SGG in conjunction with Section 920 Paragraph 2 of the Code of Civil Procedure [ZPO]). Substantiation is deemed to have occurred if the existence of a claim for an injunction and a ground for an injunction is more likely than not. In assessing the factual and legal situation, the courts must be guided by the prospects of success in the main proceedings (see Federal Constitutional Court [BVerfG], decision of April 13, 2010 – 1 BvR 216/07 – juris para. 64; BVerfG, decision of August 6, 2014 – 1 BvR 1453/12 – juris para. 9). A balancing of interests is only permissible in exceptional cases where a review of the substantive legal situation is not possible (BVerfG, decision of September 14, 2016 – 1 BvR 1335/13 – juris para. 20).
The claim for an injunction and the grounds for the injunction are not independent entities; rather, they are interrelated such that the requirements for the claim for an injunction decrease with increasing urgency or severity of the threatened harm (the grounds for the injunction), and vice versa. If the main action is manifestly inadmissible or unfounded, the application for a preliminary injunction must generally be rejected regardless of the grounds for the injunction, because no right worthy of protection exists. Conversely, if the main action is manifestly well-founded, the requirements for the grounds for the injunction are reduced. However, even then, a ground for the injunction cannot be dispensed with entirely (Lower Saxony-Bremen Higher Social Court, decision of November 15, 2013 – L 15 AS 365/13 B ER – juris para. 18; Hesse Higher Social Court, decision of February 5, 2007 – L 9 AS 254/06 ER – juris para. 4).
By these standards, the applicant has substantiated a claim for an injunction.
After the respondent withdrew the restriction of benefits pursuant to Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act in his response to the application dated January 2, 2023, for the period from December 1, 2022, and the applicant is now being granted benefits pursuant to Sections 1 and 3 of the Asylum Seekers' Benefits Act in a legally unobjectionable manner, the only remaining question to be decided is whether the granting of benefits at standard benefit level 2 is lawful.
The applicant is entitled to benefits under Sections 1 and 3 of the Asylum Seekers' Benefits Act (AsylbLG). In the Chamber's opinion, and taking into account the decision of the Federal Constitutional Court of October 19, 2022 – 1 BvL 3/21 – these benefits are due to him in the amount of standard benefit level 1. With this decision, the Federal Constitutional Court declared Section 2 Paragraph 1 Sentence 1 No. 1 of the AsylbLG incompatible with Article 1 Paragraph 1 of the Basic Law (GG) in conjunction with the social welfare principle of Article 20 Paragraph 1 GG, insofar as a standard benefit for a single adult is only recognized in the amount of standard benefit level 2, and ordered that, until new regulations are enacted, Section 28 of Book XII of the German Social Code (SGB XII) in conjunction with the Standard Benefit Determination Act and Sections 28a and 49 of Book XII of the German Social Code (SGB XII) shall apply mutatis mutandis to those entitled to benefits under Section 2 Paragraph 1 Sentence 1 of the AsylbLG, with the proviso that, in the case of accommodation in communal accommodation, the standard benefit level 1 shall be reduced accordingly. Pursuant to Section 53 Paragraph 1 of the Asylum Act or a reception facility pursuant to Section 44 Paragraph 1 of the Asylum Act, a standard allowance in the amount of the respective current standard allowance level 1 is applied to each single adult person for the purpose of calculating benefits. 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, because in this respect, too, there are no reliable indications that savings are regularly achieved or can be achieved in collective accommodations through shared management that would justify a 10% reduction in benefits (cf. Hessian State Social Court, decision of December 20, 2022, L AY 28/22 B ER).
Since it is not apparent that the applicant shares household expenses with other residents of the communal accommodation, the presiding judge exercises the discretion under Section 86b Paragraph 2 Sentence 1 of the Social Court Act (SGG) to provisionally order the respondent to provide the applicant with benefits pursuant to Sections 1 and 3 of the Asylum Seekers' Benefits Act (AsylbLG) at standard benefit level 1 for the period from the filing of the application with the court until a final and binding decision is reached in the main proceedings, unless the benefits cease earlier for other reasons. Providing benefits prior to the application is not possible, as no pent-up need is apparent.
The decision on costs is based on a corresponding application of Section 193 of the Social Court Act (SGG). In making this decision, the court took into account that the respondent withdrew the disputed benefit restriction pursuant to Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act after the application was filed. The court dismissed the remainder of the application solely for this reason. However, the withdrawal of the benefit restriction constitutes a partial admission of liability with regard to the allocation of costs. The fact that the respondent only learned on December 15, 2022, after inquiring with the immigration authorities, that the applicant was currently fulfilling his duty to cooperate, does not alter the respondent's obligation to bear the costs. Rather, it must be assumed that the respondent could have made a corresponding inquiry with the immigration authorities even before filing this application for preliminary relief.
Since the legal dispute regarding the amount of the claimed benefits requires an appeal on the merits, a complaint is not admissible in this case, §§ 172 para. 3 no. 1, 144 para. 1 sentence 1 no. 1 SGG.
