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 April 12, 2023, through its presiding judge, Judge xxx:
The respondent is ordered by way of an interim 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 and subject to the right of recovery, from November 22, 2022, until a final decision is reached on the applicant's objection of November 22, 2022, but no later than October 31, 2023.
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.
The applicant, born on xx.xx.2001, entered the Federal Republic of Germany on 01.08.2021 and applied for asylum. She stated that she was a Nigerien national.
The applicant was assigned to the respondent for accommodation and has been receiving benefits from the respondent since October 4, 2022, pursuant to Sections 3 and 3a, Paragraph 1, Item 2b and Paragraph 2, Item 2b of the Asylum Seekers' Benefits Act (AsylbLG) (decision of October 6, 2022). The applicant lives with her child, born on July 28, 2022, in communal accommodation within the meaning of Section 53, Paragraph 1 of the Asylum Act (AsylG).
The applicant filed an objection on November 22, 2022, against the decision of October 6, 2022. To the Chamber's knowledge, this objection is still pending. On the same day, she filed an application for preliminary legal protection with the Magdeburg Social Court (SG). She argues that she is entitled to additional needs allowances for single parents under Section 6 of the Asylum Seekers' Benefits Act (AsylbLG) and also to constitutionally guaranteed benefits under the AsylbLG, specifically that the standard benefit level 1 be granted.
After the respondent, by decision of December 12, 2022, fully revoked the decision of October 6, 2022, and granted the applicant ongoing benefits under Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) from October 4, 2022, taking into account an additional need for single parents, the applicant declared the application settled in this respect and now only seeks the granting of benefits at standard benefit level 1. The provisions of Sections 3, 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 state principle of Article 20 Paragraph 1 GG and contravene the general principle of equality. She referred to first-instance decisions of the social courts in preliminary injunction proceedings and 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 of Article 20 Paragraph 1 GG, insofar as a standard allowance for a single adult is only recognized at the level of standard allowance level 2. The decision of the BVerfG is also applicable to the provisions of Section 3a Paragraph 1 Number 2 b 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 from the date of receipt of this application by the court, provisionally and subject to the right of recovery until a final decision is reached on the objection of November 22, 2022, 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. 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 a right. 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, she 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 stipulated 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 those entitled to benefits to utilize the opportunities for shared resources offered in accommodations, and the consideration of 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 Federal Constitutional Court's decision of October 19, 2022, a restrictive jurisprudence in preliminary legal protection, focused on demonstrating urgency, is not warranted (Frerichs, loc. cit., para. 44.19), since it is not foreseeable that the applicant will no longer be living in communal accommodation or a reception center in the near future. On the contrary, she only recently moved back into communal accommodation.
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.
