DECISION
in the litigation
xxx,
Legal representative:
Attorney Sven Adam, Lange Geismarstraße 55,
37073 Göttingen
– Applicant –
against
Altmarkkreis Salzwedel,
represented by the district administrator,
Karl-Marx-Straße 32,
29410 Salzwedel
– Respondent –
The 25th Chamber of the Magdeburg Social Court decided on March 27, 2023 through the chairwoman, the judge at the Social Court xxx:
The respondent is obliged by way of an interim order to provide the applicant with benefits in accordance with Sections 3, 3a on November 25, 2022, provisionally until October 31, 2023 and, subject to repayment, from November 8, 2022 until a final decision on the applicant's objection is made on November 25, 2022 AsylbLG to be granted at standard level 1.
The respondent bears the applicant’s out-of-court costs.
REASONS
I
The parties involved are in dispute about the granting of benefits according to the Asylum Seekers Benefits Act (AsylbLG), in particular about the granting of benefits according to standard needs level 1.
According to his own information, the applicant entered the Federal Republic of Germany on December 21, 2016 and applied for asylum on December 30, 2016. He claimed to be a citizen of Burkina Faso.
The applicant was assigned to the respondent for admission and received the basic benefits in accordance with Section 3 AsylbLG with a decision dated September 1, 2020. The applicant currently lives in shared accommodation within the meaning of Section 53 Paragraph 1 AsylbLG.
In a decision from the Federal Office for Migration and Refugees dated February 22, 2017, the application for recognition as a person entitled to asylum was rejected as obviously unfounded. Refugee status was not recognized. The subsidiary protection status is also not recognized. The applicant is in possession of a toleration permit under immigration law and is legally obliged to leave the country.
After the applicant was granted reduced benefits in accordance with Section 1a AsylbLG until November 6th, 2022, he has been receiving ongoing benefits in accordance with Section 3a Paragraph 1 Item 2b and Paragraph 2 Item 2b AsylbLG from the respondent since November 7th, 2022 (decision dated November 15th). .2022) after he presented proof of citizenship xxx to the immigration authorities on November 7th, 2022. On November 25, 2022, the applicant filed an objection against the decision dated November 15, 2022 and believes that he is entitled to constitutional benefits under the AsylbLG in such a way that standard level 1 is approved. The objection was rejected with an objection decision dated March 16, 2023. A lawsuit against this is pending before the adjudicating chamber under file number S 25 AY 21/23.
In a letter dated November 7th, 2022, received on November 8th, 2022, the applicant submitted an application for interim legal protection to the Magdeburg Social Court (SG). After the decision was issued on November 15, 2022, the applicant requested the granting of benefits in accordance with Sections 3, 3a AsylbLG at standard needs level 2b. The regulations of Sections 3, 3a Paragraph 1 No. 2b, Paragraph 2 No. 2b AsylbLG are obviously unconstitutional, since they are regulated by Article 1 Paragraph 1 GG in conjunction with the welfare state principle of Article 20 Paragraph 1 GG violated the guaranteed basic right to a humane minimum subsistence level and violated the general principle of equality. In addition to numerous first-instance social court decisions in the interim legal protection procedure, he also referred to the decision of the Federal Constitutional Court (BVerfG) of October 19, 2022 on case number 1 BvL 3/21, published on November 23, 2022. In it, the BVerfG declared Section 2 Paragraph 1 Sentence 4 No. 1 AsylbLG with Article 1 Paragraph 1 GG in conjunction with the welfare state principle from Article 20 Paragraph 1 GG to be incompatible to the extent that a single adult person only has a standard requirement of the standard requirement level 2 is recognized. The decision of the BVerfG should also be applied to the norms of Section 3a Paragraph 1 No. 2 b AsylbLG and Section 3a Paragraph 2 No. 2b AsylbLG.
The applicant accordingly requests
that the respondent be obliged by means of an interim order to provide the applicant with provisional and subject to repayment until a final decision on the objection of November 25, 2022 against the respondent's decision of November 15, 2022, taking into account the legal opinion of the to grant the requested benefits at the statutory rate from the date of receipt of this application to the court.
The respondent requests that
the application be dismissed.
The respondent argues that there is no entitlement to higher benefits. For people who lived in shared accommodation, the granting of benefits for the necessary personal needs and the necessary needs is based on standard needs level 2 in accordance with Sections 3 and 3a AsylbLG. There is no other legal regulation. An analogous application of the BVerfG's decision on Ref. 1 BvL 3/21 is not known and has not been ordered by the supervisory authority. The legal regulation remains.
Due to the further submissions of those involved and the details of the facts, reference is made to the respondent's administrative files and the court files that were the subject of the decision.
II.
The application for interim legal protection is admissible and justified.
According to Section 86b (2) SGG, the court can 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 will make it more difficult or significantly thwart the realization of the applicant's right. Interim orders are also permissible to regulate a temporary situation in relation to a disputed legal relationship if such a regulation appears necessary to prevent significant disadvantages. According to Section 86b Paragraph 2 Sentence 4 SGG in conjunction with Section 920 Paragraph 2 of the Code of Civil Procedure (ZPO), the prerequisite for issuing an interim order is the credentials of the existence of both a claim to an order (i.e. a material claim to performance given in the main matter) and a reason for the order (i.e the urgency of the regulation to avert significant disadvantages). A claim for an order and a reason for an order are made credible if their actual requirements are met with overwhelming probability (see Keller in: Meyer-Ladewig/Keller/Leitherer/Schmidt, SGG, 13th edition 2020, § 86b Rn. 41).
The more serious the threatened violation of fundamental rights and the higher the probability of its occurrence, the more intensively the actual and legal penetration of the matter must take place in the interim legal protection procedure. If it is not possible to clarify the factual and legal situation in accordance with the threatened violation of fundamental rights in an expedited procedure - for example because this would require further actual clarification measures that cannot be implemented in the short time available - a decision can be made based on a consideration of the consequences (Federal Constitutional Court , decision of March 14, 2019 - 1 BvR 169/19 - juris para. 15 with further references).
To convince the Chamber, the applicant has credibly demonstrated a claim to an order.
The applicant lives in shared accommodation within the meaning of Section 53 Paragraph 1 AsylbLG and undisputedly receives benefits in accordance with Sections 3 and 3a AsylbLG. However, taking into account the BVerfG's decision of October 19, 2022, he is entitled to these to the extent of standard requirement level 1. With the decision of October 19, 2022 - 1 BvL 3/21 - published on November 23, 2022, the BVerfG decided that special needs level 2 for a single adult accommodated in collective accommodation in accordance with the parallel provision of Section 2 Paragraph 1 Sentence 4 No. 1 AsylbLG is incompatible with the Basic Law (Art. 1 Para. 1 GG in conjunction with Art. 20 Para. 1 GG) (fundamental right to guarantee a humane minimum subsistence level). The legislature's assumption that it is possible and reasonable for those entitled to benefits to make use of the opportunities offered by the accommodation for joint economic activities, as well as the consideration of the savings that can be achieved in this way when assessing the essential needs (cf. BT-Drs. 19/10052, p. 24 f.), the starting point is not constitutionally objectionable based on the principle of subordination. However, this obligation to do business together is only proportionate in the narrower sense if it is sufficiently certain that the conditions in the collective accommodation actually exist to fulfill these requirements and thus achieve savings of a corresponding amount. However, there must be explicit evidence of this when staying together in shared accommodation (§ 53 AsylG) or reception facility (§ 44 AsylG) (see BVerfG of October 19, 2022 - 1 BvL 3/21 - juris Rn. 74 ff.).
The BVerfG has ordered a transitional regulation according to which single adults who are accommodated in shared accommodation are recognized as having standard needs level 1 instead of 2 under the conditions of Section 2 Paragraph 1 Sentence 1 and S. 4 No. 1 AsylbLG becomes.
The Chamber is convinced that this consideration of the BVerfG also applies to the parallel regulations for those entitled to benefits in collective accommodation according to Section 3a AsylbLG, since it can be assumed with the overwhelming probability that Section 3a Paragraph 1 No. 2b AsylbLG also applies or Section 3a Paragraph 2 No. 2b AsylbLG are unconstitutional (see Frerichs in: Schlegel/Voelzke, jurisPK-SGB XII, 3rd edition, Section 3a AsylbLG (as of November 28, 2022), Rn. 44_18). The facts are comparable because there is no evidence that actual savings are or can be regularly achieved in the collective accommodation through joint management.
In this respect, the federal government has already announced through the Federal Ministry of Labor and Social Affairs (BMAS) that the decision of the BVerfG should also be applied when granting basic benefits in accordance with Sections 3 and 3a AsylbLG. The reason underlying the unconstitutionality of the norm, namely that there is no solid evidence that savings are or can actually be achieved in the collective accommodation through joint management that would justify a reduction in benefits by 10%, is of a fundamental nature. The BMAS therefore assumes that the decision also applies to the parallel regulations in Section 3a paragraph 1 number 2 and paragraph 2 number 2 AsylbLG for basic benefits. Individual states (e.g. Berlin) have already decreed that in the future all adult single people entitled to benefits according to the AsylbLG who are housed in shared accommodation, a reception facility or, if necessary, emergency accommodation will be entitled to the needs rate or the standard needs level for single adults according to the standard needs level 1, as long as they do not live as young adults in their parents' household (regardless of the type of accommodation) (see, for example, circular from the Berlin Senate Department for Integration, Labor and Social Affairs, Soz No. 01/2023 on the implementation of Sections 2 and 3, 3a of the Asylum Seekers' Benefits Act (AsylbLG).
There is also a reason for the order. Given the overwhelming prospects of success presented in the main case with reference to the BVerfG's decision of October 19, 2022, restrictive jurisprudence aimed at establishing the urgency of the case in the provisional legal protection is not appropriate (Frerichs, ibid., para. 44.19).
The cost decision is based on a corresponding application of Section 193 SGG.
Instructions on legal remedies follow.
