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
, on April 13, 2023 in Stuttgart,
through Judge xxx of the Social Court
Decided 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 March 6, 2023, until a final and binding decision is reached on the applicant's objection of March 6, 2023
The respondent shall bear the applicant's extrajudicial costs.
The applicant is granted legal aid without payment of installments for the preliminary legal protection proceedings and is assigned lawyer Sven Adam from Göttingen to represent his rights under the conditions of a lawyer based in the district of the Stuttgart Social Court.
REASONS
I.
The parties are in dispute regarding 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 Syrian national and first entered the Federal Republic of Germany on June 16, 2022. The applicant held a temporary residence permit from July 1, 2022, valid until October 1, 2022. Since January 11, 2023, the applicant has held a certificate of suspension of deportation (tolerated stay) pursuant to Section 60a Paragraph 2 Sentence 1 of the German Residence Act, valid until April 10, 2023.
By decision dated 22 February 2023, the respondent granted the applicant basic benefits pursuant to Sections 1, 3 AsylbLG in conjunction with Section 3a Paragraph 1 No. 2b and Section 3a Paragraph 2 No. 2b AsylbLG in the standard benefit level 2 for the month of 02/2023 and implicitly for the month of 03/2023.
The applicant lodged an objection against this by letter dated March 6, 2023, which the respondent has not yet decided upon.
On March 6, 2023, the applicant filed the present application for preliminary legal protection.
The applicant believes that he is entitled to benefits in the constitutionally permissible amount at standard benefit level 1.
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 6 February 2023 against the respondent's decision of 22 February 2023 (file no.: 2635.750503).
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. It is not apparent that the applicant's financial resources are exhausted, and he has not explained what disadvantages he would face if he were referred to the outcome of the main proceedings.
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.
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 accommodated 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 (BVerfG) of October 19, 2022 (Case No. 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 Asylum Seekers' Benefits Act incompatible with Article 1 Paragraph 1 of the Basic Law in conjunction with the social welfare principle of Article 20 Paragraph 1 of the Basic Law, 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 Social Code (SGB XII) 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 of the 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 10% reduction in benefits (cf. Hessian State Social Court, decision of December 20, 2022 – L 4 AY 28/22 B ER; Baden-Württemberg State Social Court, decision of April 4, 2023 – L 7 AY 335/23 ER-B).
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). This is also confirmed by Circular No. 01/2023 of the Senate Department for Integration, Labour and Social Affairs of the City of Berlin, which contains the following statements:
“In addition to those entitled to benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG), to whom the decision expressly refers, those entitled to benefits under Section 3a AsylbLG must also be included, according to the Federal Ministry of Labour and Social Affairs (BMAS). The BMAS stated that the Federal Constitutional Court's finding that there is no reliable evidence that savings can actually be achieved regularly in collective accommodations through shared resources that would justify a 10% reduction in benefits is of a fundamental nature and is therefore fully applicable to the area of basic benefits, which are based on the same regulatory concept as Section 2 Paragraph 1 Sentence 4 Number 1 AsylbLG. It follows that, as of November 24, 2022, neither Section 2 Paragraph 1 Sentence 4 Number 1 AsylbLG applies.” Section 1 of the Asylum Seekers' Benefits Act (AsylbLG) and Section 3a Paragraph 1 No. 2b and Section 3a Paragraph 2 No. 2b of the AsylbLG are not applicable. A corresponding amendment to the legal text is planned.” (cf. https://www.berlin.de/sen/soziales/service/berliner-sozialrecht/kategorie/rundschreiben/2022_07-1291745.php, last accessed on March 24, 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 his 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.
III.
The application for legal aid is admissible and well-founded.
According to Section 73a Paragraph 1 of the Social Courts Act (SGG) in conjunction with the provisions of the Code of Civil Procedure (ZPO) on legal aid (Sections 114 to 127 ZPO), a party who, according to their personal and economic circumstances, is unable to bear the costs of the proceedings, is to be granted legal aid upon application if the intended legal action offers sufficient prospects of success and does not appear frivolous (Section 114 ZPO).
These conditions are met here. Sufficient prospects of success for the legal action within the meaning of Section 73a of the Social Court Act (SGG) in conjunction with Sections 114 et seq. of the Code of Civil Procedure (ZPO) are to be affirmed in accordance with the above explanations.
The appointment of the authorized attorney is based on Section 121 Paragraph 2 of the German Code of Civil Procedure (ZPO). According to Section 121 Paragraph 3 ZPO, an attorney not established within the district of the court hearing the case may only be appointed if this does not result in additional costs. Therefore, if the appointment of an attorney from outside the district is requested, this attorney must be appointed under the same conditions as an attorney established within the district of the court hearing the case. In such cases, the application for appointment generally contains implicit consent to this limitation (see, for example, BeckOK ZPO/Reichling, 43rd ed., December 1, 2021, ZPO Section 121, marginal note 35; MüKoZPO/Wache, 6th ed. 2020, ZPO Section 121, marginal note 16).
The following is information on legal remedies.
