DECISION
in the proceedings
xxx,
– Applicant –
Legal representative: Attorney Sven Adam
, Lange-Geismar-Str. 55, 37073 Göttingen
against
City of Stuttgart – Social Welfare Office
, represented by the Mayor,
Eberhardstr. 33, 70173 Stuttgart
– Respondent –
The 11th Chamber of the Stuttgart Social Court decided on February 16, 2023 in Stuttgart 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 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) at standard benefit level 1, provisionally and subject to the right of recovery, from January 10, 2023, until a final decision is reached on the applicant's objection of December 29, 2022
The respondent shall bear the applicant's extrajudicial costs.
REASONS
I.
The parties are (still) in dispute over the granting of basic benefits in accordance with Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) at the standard benefit level 1.
The applicant is a Nigerian national and first entered the Federal Republic of Germany on August 8, 2020. Since August 12, 2022, the applicant has held a certificate of suspension of deportation (tolerated stay) pursuant to Section 60a Paragraph 2 Sentence 1 of the Residence Act for other reasons.
By decision dated 26 March 2021, the respondent granted the applicant reduced benefits pursuant to Section 1a Paragraph 4 Sentence 2 AsylbLG for the month of 04/2021 and implicitly continued to grant restricted benefits for the period from 05/2021 onwards.
By letter dated 29 December 2022, the applicant requested a review of the decisions dated 1 January 2021 to 31 December 2021 and lodged an objection against the de facto granting of benefits for the period from 1 January 2022 onwards.
On January 10, 2023, the applicant filed the present application for preliminary legal protection.
The applicant argues that the disputed reduction in benefits is unconstitutional and that she is entitled to benefits at a constitutionally compliant level in the standard benefit category 1.
The applicant requests that
the respondent be ordered, by way of an interim injunction, to grant the applicant the requested benefits in the statutory amount from the date of receipt of this application, provisionally and subject to the right of recovery, until a final and binding decision is reached on the applicant's objection of December 29, 2022, against the respondent's decision of (file no.: 2636.736990), taking into account the legal opinion of the court.
The respondent requests that
the application be dismissed.
The respondent argues that there is no entitlement to higher benefits and that the applicant has not credibly demonstrated any grounds for an injunction.
The respondent declared in a letter dated January 25, 2023, that the applicant would be granted full basic benefits in accordance with Sections 1 and 3 of the Asylum Seekers' Benefits Act (AsylbLG) at standard benefit level 2 for the months of January 2023 and February 2023. The applicant accepted this partial acknowledgment in a letter dated January 25, 2023.
For further details of the parties' submissions and the facts of the case, reference is made to the administrative file of the respondent and the case file.
II.
The application for preliminary legal protection is admissible and well-founded.
The subject of the dispute – following the accepted partial admission – is now only the granting of basic benefits in accordance with Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) at the standard benefit level 1.
In this case, preliminary legal protection is governed by Section 86 Paragraph 2 Sentence 2 of the Social Courts Act (SGG). According to this provision, the court hearing the main proceedings may issue a preliminary injunction to regulate a provisional state of affairs with regard to a disputed legal relationship if such regulation appears necessary to avert substantial disadvantages. This is the case if, upon preliminary examination, the applicant has a claim to the requested benefit (claim for an injunction) and the enforcement of the claim cannot wait for a decision in the main proceedings due to particular urgency (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). In view of its provisional nature, the interim order may not, in principle, anticipate the final decision in the main proceedings (cf. LSG North Rhine-Westphalia of 26 January 2015 – L 7 AS 617/14 B; LSG Saxony of 19 December 2016 – L 7 AS 1001/16 B ER; HK-SGG/Binder § 86b Rn. 45).
The claim for an injunction and the grounds for the injunction are not isolated 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, para. 18, juris; Hesse Higher Social Court, decision of February 5, 2007 – L 9 AS 254/06 ER, para. 4, juris). Rather, the issuance of a preliminary injunction must be necessary to avert substantial disadvantages; that is, there must be an urgent emergency requiring an immediate decision. Such an emergency exists when one's livelihood is threatened or significant economic disadvantages are likely (Keller in: MeyerLadewig/Keller/Leitherer/Schmidt, SGG, 13th ed. 2020, § 86b para. 29a; Burkiczak in: Schlegel/Voelzke, jurisPK-SGG, 2nd ed., § 86b SGG (as of 03.02.2023), para. 412).
The Chamber is convinced that the applicant has substantiated a claim for an injunction.
The applicant is housed in communal accommodation within the meaning of Section 53 Paragraph 1 of the Asylum Act and is indisputably entitled to basic benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act. In the Chamber's opinion, and taking into account the decision of the Federal Constitutional Court of October 19, 2022 (Case No. 1 BvL 3/21), she 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 Asylum Seekers' Benefits Act incompatible with Article 1 Paragraph 1 of the Basic Law in conjunction with the social welfare principle under Article 20 Paragraph 1 of the Basic Law, insofar as a single adult is only granted standard benefit level 2, and ordered that, until new regulations are enacted, Section 28 of Book XII of the Social Code applies to those entitled to benefits under Section 2 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act. V. m. the Standard Needs Assessment Act and Sections 28a, 49 SGB XII shall apply accordingly, with the proviso that, in the case of accommodation in a communal accommodation within the meaning of Section 53 Paragraph 1 AsylG or a reception facility pursuant to Section 44 Paragraph 1 AsylG, a standard need in the amount of the respective current standard need level 1 shall be used as the basis for the assessment of benefits for each single adult person. In the Chamber's view, the aforementioned decision of the Federal Constitutional Court also undoubtedly establishes the unconstitutionality of the parallel provision in Section 3a Paragraph 1 No. 2 lit. b of the Asylum Seekers' Benefits Act (AsylbLG) or Section 3a Paragraph 2 No. 2 lit. b of the AsylbLG (see also: Hessian State Social Court, decision of December 20, 2022 – L 4 AY 28/22 B ER; Frerichs in: Schlegel/Voelzke, jurisPK-SGB XII, 3rd edition, Section 3a AsylbLG (as of December 28, 2022), marginal note 44_18). 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 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 reduction in benefits by 10% (cf. Hessian State Social Court, decision of December 20, 2022 – L 4 AY 28/22 B ER).
In this context, the Chamber assumes that the new regulation by the legislator expected as a result of the decision of the Federal Constitutional Court will also extend to the special needs level according to Section 3a Paragraph 1 No. 2 lit. b AsylbLG or Section 3a Paragraph 2 No. 2 lit. b AsylbLG. The website of the Association of Towns and Municipalities of North Rhine-Westphalia (see NRW Association of Towns and Municipalities press release 690/2022 of December 21, 2022) also indicates that, in response to an inquiry from the Working Group of the Federal States on Migration and Refugee Issues (ArgeFlü) regarding whether the Federal Constitutional Court's decision (Case No. 1 BvL 3/21) should also apply to benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG), the Federal Ministry of Labor and Social Affairs (BMAS) stated "that the aforementioned decision declaring the regulation under Section 2 Paragraph 1 Sentence 4 Number 1 AsylbLG unconstitutional should also be applied to the granting of basic benefits under Sections 3 and 3a AsylbLG." The reasoning underlying the unconstitutionality of the provision—namely, that 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—is of a fundamental nature. The Federal Ministry of Labor and Social Affairs (BMAS) therefore assumes that the decision also applies to the parallel regulations in Section 3a Paragraph 1 Number 2 and Paragraph 2 Number 2 of the Asylum Seekers' Benefits Act (AsylbLG) for benefits under the basic benefits scheme (see https://www.kommunen.nrw/en/information/bulletins/database/detailansicht/dokument/hinweise-des-ministeriums-fuer-kinder-jugend-familie-gleichstellung-flucht-und-integration-zum-as.html ; last accessed on 15.02.2023).
Grounds for an injunction also exist. The mere fact that basic social security benefits are affected is not sufficient to generally assume an irreparable disadvantage that cannot be rectified in the main proceedings (see Federal Constitutional Court, decision of September 19, 2017 – 1 BvR 1719/17, juris, para. 8; Baden-Württemberg State Social Court, decision of August 28, 2019 – L 7 AY 2735/19 ER-B, para. 8, juris). In view of the prevailing prospects of success on the merits, as outlined above and with reference to the decision of the Federal Constitutional Court of October 19, 2022 (Case No. 1 BvL 3/21), the Chamber is of the opinion that a restrictive jurisprudence focused on demonstrating urgency (cf. Burkiczak in: Schlegel/Voelzke, jurisPK-SGG, 2nd ed., § 86b SGG (as of February 3, 2023), para. 425 with further references) is not appropriate in this case. Against this background, the Chamber considers the applicant's assertion that the current benefits are insufficient to cover her subsistence level to be exceptionally sufficient to establish grounds for an injunction.
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.
