DECISION
in the legal dispute
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 Social Court of Magdeburg decided on March 27, 2023, through its presiding judge, Judge xxx of the Social Court:
The respondent is ordered by way of preliminary injunction to grant the applicant benefits in accordance with Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) at standard benefit level 1 provisionally until October 31, 2023, and subject to the right of recovery from November 8, 2022, until a final decision is reached on the applicant's objection of November 25, 2022.
The respondent shall bear the applicant's extrajudicial costs.
REASONS
I.
The parties are in dispute over the granting of benefits under the Asylum Seekers' Benefits Act (AsylbLG), in particular over the granting of benefits under standard benefit level 1.
According to his own statement, the applicant entered the Federal Republic of Germany on December 21, 2016, and submitted an application for asylum on December 30, 2016. He stated that he was a national of Burkina Faso.
The applicant was assigned to the respondent for accommodation and received basic benefits pursuant to Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) by decision dated September 1, 2020. The applicant currently lives in communal accommodation within the meaning of Section 53 Paragraph 1 of the AsylbLG.
By decision of the Federal Office for Migration and Refugees dated February 22, 2017, the application for recognition as a person entitled to asylum was rejected as manifestly unfounded. Refugee status was not granted. Subsidiary protection status was also not recognized. The applicant holds a temporary suspension of deportation and is subject to an enforceable obligation to leave the country.
After receiving reduced benefits under Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) until November 6, 2022, the applicant has been receiving ongoing benefits from the respondent since November 7, 2022, pursuant to Section 3a, Paragraph 1, Item 2b and Paragraph 2, Item 2b of the AsylbLG (decision of November 15, 2022), following his submission of proof of citizenship (xxx) to the immigration authority on November 7, 2022. The applicant filed an objection to the decision of November 15, 2022, on November 25, 2022, arguing that he is entitled to constitutionally guaranteed benefits under the AsylbLG, specifically the standard benefit level 1. This objection was rejected by a decision dated March 16, 2023. However, a lawsuit is pending before the adjudicating chamber under file number S 25 AY 21/23.
By letter dated November 7, 2022, received on November 8, 2022, the applicant filed an application for preliminary legal protection with the Magdeburg Social Court (SG). Following the issuance of the decision of November 15, 2022, the applicant seeks the granting of benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) at standard benefit level 2b. The applicant argues that the provisions of Sections 3 and 3a, paragraph 1, no. 2b, and paragraph 2, no. 2b of the AsylbLG are manifestly unconstitutional, as they violate 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 of the Basic Law (GG), and contravene the general principle of equality. In addition to numerous first-instance decisions by social courts in preliminary injunction proceedings, he also referred to the decision of the Federal Constitutional Court (BVerfG) of October 19, 2022, published on November 23, 2022, under file number 1 BvL 3/21. In that decision, the BVerfG declared Section 2 Paragraph 1 Sentence 4 Number 1 of the Asylum Seekers' Benefits Act (AsylbLG) incompatible with Article 1 Paragraph 1 of the Basic Law (GG) in conjunction with the social welfare principle enshrined in Article 20 Paragraph 1 GG, insofar as a single adult is only granted a standard allowance at the level of standard allowance level 2. The BVerfG's decision is also applicable to the provisions of Section 3a Paragraph 1 Number 2b and Section 3a Paragraph 2 Number 2b of the Asylum Seekers' Benefits Act (AsylbLG).
The applicant essentially requests
that the respondent be ordered, by way of an interim injunction, to grant the applicant the requested benefits in the statutory amount, provisionally and subject to the right of recovery, until a final and binding decision is reached on the objection of November 25, 2022, against the respondent's decision of November 15, 2022, taking into account the legal opinion of the court, from the date of receipt of this application by the court.
The respondent requests that
the application be dismissed.
The respondent argues that there is no entitlement to higher benefits. For individuals living in communal accommodation, the provision of benefits for necessary personal needs and other necessary expenses is based on standard benefit level 2 according to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG). No other legal provision exists. An analogous application of the Federal Constitutional Court's decision under file number 1 BvL 3/21 is unknown and has not been ordered by the supervisory authority. The statutory provision remains in effect.
For further details of the parties' submissions and the facts of the case, reference is made to the administrative files of the respondent and the court file, which were the subject of the decision-making process.
II.
The application for preliminary legal protection is admissible and well-founded.
Pursuant to Section 86b Paragraph 2 of the Social Court Act (SGG), the court may issue a preliminary injunction concerning the subject matter of the dispute if there is a risk that a change in the existing state of affairs would hinder or substantially prevent the applicant from exercising their rights. Preliminary injunctions are also permissible to regulate a provisional state of affairs with regard to a disputed legal relationship if such regulation appears necessary to avert substantial disadvantages. According to Section 86b Paragraph 2 Sentence 4 of the SGG in conjunction with Section 920 Paragraph 2 of the Code of Civil Procedure (ZPO), the prerequisite for issuing a preliminary injunction is the demonstration of both a claim for an injunction (i.e., a substantive claim for performance in the main proceedings) and grounds for an injunction (i.e., the urgency of the regulation to avert substantial disadvantages). A claim for an injunction and grounds for an injunction are deemed credible if their factual prerequisites exist with a high degree of probability (cf. Keller in: Meyer-Ladewig/Keller/Leitherer/Schmidt, SGG, 13th edition 2020, § 86b para. 41).
The more serious the threatened violation of fundamental rights and the higher the probability of its occurrence, the more intensive the factual and legal analysis of the matter must be, even in preliminary injunction proceedings. If a clarification of the factual and legal situation commensurate with the threatened violation of fundamental rights is not possible in expedited proceedings—for example, because it would require further factual investigations that cannot be carried out within the short time available—a decision may be made based on a balancing of interests (Federal Constitutional Court).<BVerfG> , Decision of 14 March 2019 – 1 BvR 169/19 – juris Rn. 15 with further references).
The Chamber is convinced that the applicant has credibly demonstrated a claim to an injunction.
The applicant lives in communal accommodation within the meaning of Section 53 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) and indisputably receives benefits under Sections 3 and 3a of the AsylbLG. However, in light of the decision of the Federal Constitutional Court (BVerfG) of October 19, 2022, he is entitled to these benefits to the extent of standard benefit level 1. In its decision of October 19, 2022 – 1 BvL 3/21 – published on November 23, 2022, the Federal Constitutional Court ruled that special benefit level 2 for a single adult housed in communal accommodation, as provided for in the parallel provision of Section 2 Paragraph 1 Sentence 4 No. 1 of the AsylbLG, is incompatible with the Basic Law (Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1 of the Basic Law) (fundamental right to a guaranteed minimum standard of living that ensures human dignity). The legislator's assumption that it is possible and reasonable for benefit recipients to utilize the opportunities for shared resources offered in accommodations, and to consider the resulting savings when calculating their subsistence needs (see BT-Drs. 19/10052, pp. 24 et seq.), is, in principle, not objectionable under constitutional law according to the principle of subsidiarity. However, this obligation to share resources is only proportionate in the narrower sense if it is sufficiently ensured that the conditions for fulfilling these conditions and thus achieving corresponding savings actually exist in the communal accommodations. For this to be the case, there must be explicit indications of such conditions in the context of shared accommodation (§ 53 AsylG) or reception facilities (§ 44 AsylG) (see BVerfG of 19 October 2022 – 1 BvL 3/21 – juris para. 74 et seq.).
The Federal Constitutional Court has ordered a transitional arrangement according to which, for single adults who are housed in communal accommodation, a standard allowance in the amount of standard allowance level 1 instead of 2 is recognized under the conditions of Section 2 Paragraph 1 Sentence 1 and Sentence 4 No. 1 AsylbLG.
The Chamber is convinced that this reasoning of the Federal Constitutional Court also applies to the parallel provisions for benefit recipients in collective accommodations under Section 3a of the Asylum Seekers' Benefits Act (AsylbLG), since it is highly probable that Section 3a Paragraph 1 No. 2b AsylbLG and Section 3a Paragraph 2 No. 2b AsylbLG are also unconstitutional (see Frerichs in: Schlegel/Voelzke, jurisPK-SGB XII, 3rd edition, Section 3a AsylbLG (as of November 28, 2022), marginal note 44_18). The circumstances are comparable, as there is no evidence that actual savings are regularly achieved or could be achieved through shared resources in the collective accommodations.
The Federal Government, through the Federal Ministry of Labour and Social Affairs (BMAS), has already announced that the Federal Constitutional Court's ruling should also be applied to the granting of basic benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (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 BMAS therefore assumes that the ruling also applies to the parallel provisions in Section 3a, paragraph 1, number 2, and paragraph 2, number 2, of the AsylbLG for benefits under the basic benefits scheme. Individual states (e.g., Berlin) have already stipulated that in the future, all single adults entitled to benefits under the Asylum Seekers' Benefits Act (AsylbLG) who are housed in communal accommodation, a reception center, or, if applicable, emergency accommodation, are entitled to the standard benefit rate or the standard benefit level for single adults according to standard benefit level 1, provided they do not live as young adults in their parents' household (regardless of the type of accommodation) (see, for example, the circular from the Berlin Senate Department for Integration, Labour and Social Affairs, Soz No. 01/2023, on the implementation of Sections 2 and 3, 3a of the Asylum Seekers' Benefits Act (AsylbLG)).
Furthermore, grounds for an injunction exist. Given the prevailing prospects of success in the main proceedings, as outlined above, and with reference to the decision of the Federal Constitutional Court of 19 October 2022, a restrictive jurisprudence in preliminary legal protection, focused on demonstrating urgency, is not warranted (Frerichs, loc. cit., para. 44.19).
The decision on costs is based on a corresponding application of Section 193 of the Social Court Act (SGG).
The following is information on legal remedies.
