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 an interim injunction to grant the applicant benefits pursuant to Section 2 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 23 December 2022 until a final decision is reached on the applicant's objection of 14 December 2022.
- The respondent shall bear the applicant's extrajudicial costs.
REASONS
I.
The dispute in the preliminary injunction proceedings concerns the amount of benefits under the Asylum Seekers' Benefits Act (AsylbLG) for the period from 1 December 2022 onwards. In particular, it is contested whether the benefits to which the applicant is entitled should be calculated according to standard benefit level 1 or 2.
The applicant, born in 1988, is a Nigerian national. He first entered the Federal Republic of Germany on February 20, 2019. On February 26, 2019, he submitted an asylum application, which was rejected by decision dated April 14, 2021.
Since December 21, 2022, he has been in possession of a certificate of suspension of deportation (tolerated stay) pursuant to Section 60b Paragraph 1 of the Residence Act, which was limited until June 20, 2023.
By decision dated November 7, 2022, the respondent granted the applicant benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) for the month of November 2022. By subsequent implied decisions, the respondent further granted the applicant benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) for the period from December 1, 2022 to January 31, 2023.
The applicant filed an objection to the decision of November 17, 2022, by letter dated November 28, 2022. By a further letter dated December 14, 2022, the applicant filed an objection to the implied decisions effective from December 1, 2022.
On December 23, 2022, the applicant requested preliminary legal protection from the Stuttgart Social Court, arguing essentially that he was entitled to benefits at a constitutionally compliant level within the standard benefit rate 1. He asserted that the provision in Section 2 Paragraph 1 Sentence 4 Number 1 of the Asylum Seekers' Benefits Act (AsylbLG) was manifestly unconstitutional, as it violated the fundamental right to a dignified minimum standard of living, guaranteed by Article 1 Paragraph 1 of the Basic Law (GG) in conjunction with the social welfare principle of Article 20 Paragraph 1 GG, and contravened the general principle of equality. He further argued that the needs of benefit recipients under Section 2 Paragraph 1 Sentence 4 Number 1 of the AsylbLG 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 did not even attempt to substantiate the deviation in a transparent process based on the actual needs of this particular group. Instead, the legislature merely asserted that it could be assumed that communal accommodation for residents of such facilities would result in savings comparable to those in couples' households. The concept of savings through shared expenses, expressed in needs level 2 for couples' households, 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 borne jointly. This applies, for example, to personal media needs, since landline or internet connections are regularly provided for communal use in communal accommodations. Further savings would result, under the aforementioned conditions, from the possibility of shared use or exchange of leisure, entertainment, and cultural needs (Section 9 of the 2013 Income and Expenditure Survey). Accommodation in communal housing would also lead to savings in the necessary food requirements (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 design 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 residents of communal accommodation could and should be expected to achieve the described cost savings, comparable to those of couples, through shared financial management. Those receiving benefits under the Asylum Seekers' Benefits Act (AsylbLG) who are housed in communal accommodation can be expected to manage their finances jointly, going beyond simply sharing accommodation-related expenses. These benefit recipients, 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 supports the swift processing of their asylum applications. In this exceptional 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, people housed 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 economic management extend beyond the shared use of a bathroom, kitchen, and possibly common rooms (Federal Social Court, August 23, 2012 – Case No.: B 4 AS 34/12 R): Even the common practice in shared apartments of jointly purchasing basic foodstuffs, cleaning supplies, and toiletries from a communal fund contributed equally by all residents does not, in itself, establish a shared economic community. The decisive factor is that the household is managed by both partners, with their respective contributions depending on their individual economic and physical capabilities. The actual management of the household and the covering of household expenses must be undertaken jointly by both partners, which, however, 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 they will divide the household management for the benefit of their relationship is sufficient. Joint economic activity, similar to that between partners, does not take place in refugee accommodations; corresponding opportunities to claim support from other beneficiaries 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 constitutionally compliant amount at standard benefit level 1 from the date of receipt of this application by the court, until a final and binding decision is reached on the applicant's objection of December 14, 2022, against the de facto provision of benefits by the respondent (file no.: 2602.733285).
The respondent requests that
the application be rejected.
The authority upholds the decision reached in the administrative proceedings and points out that the applicant has failed to demonstrate any grounds for an injunction. Rather, it is reasonable to expect the applicant to await a decision from the respondent regarding his objection and any subsequent legal proceedings. The applicant's submissions provide no substantial indication that his financial resources are exhausted. The applicant has not explained what disadvantages he would face if he were referred to the outcome of the main proceedings. The applicant has also failed to demonstrate a legitimate claim to an injunction. The benefits granted pursuant to Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) for December 2022 and January 2023 are being paid in the legally correct amount. In its decision of October 19, 2022 (Case No.: 1 BvL 3/21), the Federal Constitutional Court ruled on standard benefits for single adult asylum seekers in collective accommodations. The decision concerns single adults who live in so-called collective accommodations and have been legally residing in the Federal Republic of Germany for at least 18 months.
A further ruling from the Federal Constitutional Court regarding single adults living in so-called collective accommodations and who have been legally residing in the Federal Republic of Germany for less than 18 months is also still pending. There is no ruling yet from the Federal Constitutional Court that the special needs level 2 for a single adult housed in collective accommodation, pursuant to Section 3a Paragraph 1 No. 2b in conjunction with Section 3a Paragraph 2 No. 2b of the Asylum Seekers' Benefits Act (AsylbLG), is unconstitutional.
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.
The applicant is accommodated in a communal facility within the meaning of Section 2 Paragraph 1 Sentence 4 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Section 53 Paragraph 1 of the Asylum Act (AsylG). The interpretation of this provision is disputed in case law.
The applicant is indisputably entitled to benefits under Section 2 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 – he is entitled to these benefits to the extent 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 at the level 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 within the meaning of... According 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 for the purpose of calculating benefits. In the opinion of the Chamber, there is no credible evidence that savings are regularly achieved or can be achieved in collective accommodations through shared resources that would justify a 10% reduction in benefits (cf. Hessian State Social Court, decision of December 20, 2022, L AY 28/22 B ER).
The benefits were therefore to be granted at standard benefit level 1, disregarding any concerns regarding the existence of grounds for an injunction based on the particular urgency of granting benefits. In doing so, the court took into account that – as explained above – the claim for an injunction and the grounds for an injunction do not exist in isolation; rather, there is a reciprocal relationship such that the requirements for the claim for an injunction must be reduced with increasing urgency or severity of the threatened disadvantage (the grounds for an injunction), and vice versa.
Since it is not apparent that the applicant shares household expenses with other residents of the communal accommodation, the presiding judge exercises his discretion under Section 86b Paragraph 2 Sentence 1 of the Social Court Act (SGG) to provisionally order the respondent to provide the applicant with analogous benefits at standard benefit level 1 for the period from the filing of the application with the court until a legally binding decision is reached in the main proceedings, unless the benefits cease earlier for other reasons. Providing benefits prior to the application is not an option, 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).
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.
