DECISION
L 8 AY 18/23 B ER
S 54 AY 16/23 ER Social Court Hanover
In the appeal proceedings
1. xxx,
2. xxx,
3. xxx,
4. xxx,
to 1 to 4 residing at xxx
– Applicant and complainant –
Legal representative:
for 1-4: Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
Region Hannover – Department of Social Affairs –, represented by the Regional President,
Hildesheimer Straße 20, 30169 Hannover
– Respondent and Appellant –
The 8th Senate of the Lower Saxony-Bremen State Social Court decided on June 29, 2023 in Celle through the presiding judges xxx and xxx and the judge xxx:
Upon the applicants' appeal, the decision of the Hanover Social Court of April 26, 2023, is amended: The respondent is ordered, by way of preliminary injunction, to provisionally grant applicants 2 to 4 benefits pursuant to Section 2 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Book XII of the German Social Code (SGB XII), and applicant 1 benefits pursuant to Section 3a Paragraph 1 No. 1 and Paragraph 2 No. 1 of the AsylbLG, from March 1, 2023, until a final and binding decision is reached on the objection of February 9, 2023, against the decision of January 23, 2023, but no later than July 31, 2023, taking into account benefits already received. The application for preliminary relief is otherwise dismissed.
The further appeal is dismissed.
The respondent must reimburse 4/5 of the applicant's extrajudicial costs for both instances.
The applicants are granted legal aid for the appeal proceedings, and attorney Adam, Göttingen, is appointed to represent them. Payment in installments is not ordered.
REASONS
The appeal filed on May 26, 2023, by the Montenegrin applicants of the Roma people (the applicant no. 1, born in 19xx, and her children born in 20xx, 20xx, and 20xx respectively, applicants nos. 2 to 4), who entered Germany on December 25, 2017, against the decision of April 26, 2023, by which the Social Court (SG) of Hanover rejected their application for preliminary relief of March 1, 2023, to order the respondent, by way of an interim injunction, to provisionally grant them benefits instead of those granted by the decision of January 23, 2023, for the period from March 1, 2023. The granting of benefits approved up to 31.7.2023 under Section 3 AsylbLG as so-called analogous benefits under Section 2 AsylbLG in conjunction with the SGB XII is permissible and is successful in full with regard to applicants 2 to 4 and partially with regard to applicant 1.
The Social Court (SG) wrongly rejected the urgent application concerning applicants 2 to 4 and only partially rightly rejected it concerning applicant 1.
Preliminary injunctions are permissible under Section 86b Paragraph 2 Sentence 2 of the Social Court Act (SGG) to regulate a provisional state of affairs with regard to a disputed legal relationship if such regulation appears necessary to avert substantial disadvantages. A prerequisite for issuing a preliminary injunction is that a right asserted against the respondent exists (claim for an injunction) and that the applicant would suffer substantial disadvantages without the issuance of the requested injunction (ground for an injunction). Both the sufficient probability of a substantive claim to performance and the urgency of the regulation to avert substantial disadvantages must be substantiated (Section 86b Paragraph 2 Sentence 4 SGG in conjunction with Section 920 Paragraph 2 of the Code of Civil Procedure (ZPO)).
The disputed legal relationships here arise from the fact that the applicants filed an objection on February 9, 2023, against the decision of the city of Ronnenberg, which is acting on behalf of the respondent in this respect, dated January 23, 2023, and a decision on this objection has not yet been reached.
Applicants 2 to 4 have credibly demonstrated their entitlement to the requested benefits under Section 2 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Book XII of the German Social Code (SGB XII). They are entitled to benefits under Section 1 Paragraph 1 Number 4 of the AsylbLG because each of them – like applicant 1 – holds a temporary suspension of deportation (Duldung) valid until February 24, 2024, pursuant to Section 64a of the German Residence Act (AufenthG). According to Section 2 Paragraph 1 Sentence 1 of the AsylbLG, and notwithstanding Sections 3 and 4 as well as 6 to 7, Book XII of the German Social Code and Part 2 of Book IX of the German Social Code apply accordingly to those beneficiaries who have resided in Germany for 18 months without significant interruption and have not abused their rights to influence the duration of their stay. Applicants 2 to 4 have resided in Germany for significantly longer than the required 18 months without substantial interruption since their entry in December 2017, and thus at the time the disputed benefit payments began on March 1, 2023. Even at the time the waiting period was legally extended from 15 to 18 months, effective August 21, 2019, the new 18-month waiting period had already been fulfilled, meaning that the transitional provision protecting legitimate expectations under Section 15 of the Asylum Seekers' Benefits Act (AsylbLG) does not apply (see Opperman in jurisPK-SGB XII, 3rd ed. 2020, Section 15 AsylbLG, as of March 7, 2023, para. 23). Applicants 2 to 4 have also not themselves abused their rights by influencing their stay in Germany within the meaning of Section 2 para. 1 sentence 1 AsylbLG. The element of self-influencing the duration of stay contains a highly personal component. The person entitled to benefits must be personally responsible for the alleged conduct. The same applies to a culpable omission (e.g., lack of cooperation regarding immigration matters). The allegation of abusive conduct may therefore not be attributed to the conduct of third parties. This means, in particular, that the abusive conduct of parents as legal representatives cannot be attributed to their children if the children themselves did not contribute to the incriminated conduct (see Federal Social Court judgment of June 17, 2008 – B 8/9b AY 1/07 R – juris para. 48; Oppermann/Filges in jurisPK-SGB XII, 3rd ed. 2020, § 2 AsylbLG, as of December 21, 2022, paras. 69, 250 and 251). This is the case here. Applicants 2 to 4 cannot be held responsible for any abusive conduct by their mother, Applicant 1, nor can they themselves be accused of intentionally abusive conduct. Abusive conduct includes providing false personal information (primarily the surname Adzovic instead of the correct Selimovic for all applicants, and an incorrect date of birth for Applicant 1, June 6, 1988, instead of November 7, 1986) after their entry in December 2017 to the Federal Office for Migration and Refugees (BAMF) during the asylum procedure, and to the Lower Saxony State Reception Authority (LAB) and the Immigration Office until their identities were clarified by the Montenegrin authorities' response of September 13, 2018, to a readmission request from the Lower Saxony State Reception Authority, their absconding (which prevented their scheduled deportation on March 3, 2020), and their generally inadequate cooperation in the immigration proceedings. The false information regarding their identities was not provided by the applicants, who were only 3, 4, and 5 years old at the time of their entry, but by applicant 1, their mother, whose abusive conduct (more on this later) cannot be attributed to them. Applicant 1 alone is also responsible for the applicants going into hiding. She had custody of applicants 2 through 4, who were then 6, 7, and 8 years old respectively, and were forced to go into hiding with their mother. Applicants 2 through 4, who were minors, were not obligated to cooperate in the immigration proceedings to obtain identity documents. This obligation rested solely with applicant 1 as their legally authorized mother. A breach of this obligation would also not be attributable to applicants 2 through 4.
Because of the subsistence-securing nature of the analogous benefits, the necessary grounds for the order have also been credibly demonstrated for applicants 2 to 4.
The applicant in case 1 has not credibly demonstrated a claim to analogous benefits under Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with the German Social Code, Book XII (SGB XII). It is highly probable that she herself influenced the duration of her stay in Germany in a manner abusive within the meaning of Section 2 Paragraph 1 of the AsylbLG.
According to the jurisprudence of the Federal Social Court (BSG) (fundamental ruling: judgment of June 17, 2008 – B 8/9b AY 1/07 R – juris para. 32 et seq.), abusive conduct within the meaning of Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) requires, objectively speaking, dishonest behavior disapproved of by the legal system, which, subjectively speaking, is intentional and carried out with the awareness of the objectively possible influence on the asylum seeker's residence permit. Given the punitive nature of Section 2 AsylbLG, not just any conduct that is in any way reprehensible is sufficient. The nature, extent, and consequences of the breach of duty are so serious for the foreigner that the breach must also be given considerable weight within the framework of the principle of proportionality. Therefore, only conduct that is inexcusable (socially unacceptable) when considering the individual case, the specific situation of a foreigner in the Federal Republic of Germany, and the particular characteristics of the AsylbLG can lead to the exclusion of analogous benefits. Providing a false identity constitutes a typical case of abuse of rights (BSG, loc. cit., para. 34). An exception applies if any obligation of the foreigner in question to leave the country could not have been enforced during the entire period of abuse of rights, regardless of their conduct (BSG, loc. cit., para. 44). The burden of proof for abusive conduct lies with the benefit provider (Oppermann/Filges, loc. cit., paras. 140 ff.)
Based on this, and following a summary review of the current state of facts and legal arguments, it is highly probable that the main proceedings will establish that the first applicant abused her rights by influencing the duration of her stay in Germany within the meaning of Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG). This was done by providing false personal details (essentially stating the family name Adzovic instead of the correct Selimovic for all applicants, and stating her date of birth as 6.6.1988 instead of the correct 7.11.1986) to the Federal Office for Migration and Refugees (BAMF), the Lower Saxony State Office for Migration and Refugees (LAB Niedersachsen), and the immigration authorities after her entry in December 2017, until her identity was clarified by the response from the Montenegrin authorities on 13.9.2018. A transmission error or a misunderstanding in recording the personal details due to the blindness of applicant 1 is unlikely because, according to the record of her hearing conducted by the Federal Office for Migration and Refugees (BAMF) on January 19, 2018, with the assistance of an interpreter, the "information relating to Part 1 of the transcript of the asylum application" (personal data of the applicants, including applicant 1's surname xxx, born on xxx) was checked against her information and confirmed by her as correct. The enforcement of applicant 1's obligation to leave the country was not impossible during the entire period of the abuse of rights, irrespective of her abusive conduct, solely due to applicant 2's eye condition. This eye condition was successfully treated as an inpatient at Hannover Medical School from February 19 to 21, 2019 (discharge report dated February 21, 2019) and—like other short-term illnesses of the children—was, at most, a temporary obstacle to deportation.
However, based on the interplay between the claim for an injunction and the grounds for the injunction (the greater the prospects of success in the main proceedings, the lower the requirements for the grounds for the injunction and vice versa, cf. Keller in Meyer-Ladewig/Keller/Leitherer/Schmidt, SGG, 13th ed. 2020, § 86b para. 27 with further references), the applicant in case 1 is to be granted provisionally higher benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) by way of an interim injunction. She has credibly demonstrated a claim to higher benefits than those granted to her by the decision of January 23, 2023, due to her accommodation in communal accommodation pursuant to Section 3a para. 1 no. 2 lit. b and Section 3a para. 2 no. 2 lit. b of the AsylbLG, amounting to only €164.00 and €205.00 respectively. It is highly likely that she will be able to successfully claim benefits under Section 3a Paragraph 1 No. 1 and Paragraph 2 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG) in the amounts of €182.00 and €228.00, respectively, instead of these benefits. The Federal Constitutional Court (BVerfG), in its decision of October 19, 2022 – 1 BvL 3/21 – published on November 23, 2022, ruled that the special needs level 2 for a single adult housed in collective accommodation, as stipulated in the parallel provision of Section 2 Paragraph 1 Sentence 4 No. 1 AsylbLG, is incompatible with the Basic Law (Article 1 Paragraph 1 GG in conjunction with Article 20 Paragraph 1 GG) (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 actually exist in the communal accommodations and thus achieving corresponding savings. No evidence of this has emerged in the case of shared accommodation (§ 53 AsylG) or reception centers (§ 44 AsylG) (see BVerfG, decision of October 19, 2022 – 1 BvL 3/21 – juris para. 74 et seq.). The Federal Constitutional Court has ordered a transitional provision stipulating that single adults housed in communal accommodation or a reception center, under the conditions of Section 2 Paragraph 1 Sentences 1 and 4 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG), will be granted a standard allowance at the level of standard allowance level 1, rather than at the level of standard allowance level 2. This undoubtedly also renders Section 3a Paragraph 1 No. 2 Letter b of the AsylbLG and Section 3a Paragraph 2 No. 2 Letter b of the AsylbLG unconstitutional and necessitates the application of the benefit rates of Section 3a Paragraph 1 No. 1 and Section 3a Paragraph 2 No. 1 of the AsylbLG in these cases. It is expected that the legislature will enact a corresponding constitutionally compliant regulation. Because of the overwhelming likelihood of success in the main proceedings, the Senate no longer adheres to its restrictive case law in preliminary legal protection, which focuses on demonstrating the urgency (ground for the order) (see decision of 9 July 2020 – L 8 AY 52/20 B ER – juris para. 28 et seq.) in cases such as the present one (see also Frerichs in juris-PK SGB XII, 3rd ed. 2020, § 3a AsylbLG, as of 25 May 2023, para. 44.16 et seq.).
The applicant's claim to higher benefits due to the consideration of additional needs arising from single parenthood pursuant to Section 6 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) is not precluded from the outset. However, due to her accommodation together with her mother and sister, it must first be examined whether the requirements for sole custody of the care and upbringing of applicants 2 to 4 are met (see Federal Social Court (BSG), judgment of August 23, 2012 – B 4 AS 167/11 R – juris para. 14). There is no entitlement to a lump-sum additional needs allowance; rather, the decisive factor is the specific individual need (Frerichs in jurisPK-SGB XII, 3rd ed. 2020, Section 6 AsylbLG, as of May 25, 2023, paras. 56, 54 with further references). The applicant has not credibly demonstrated such a need. Nor can the need for an injunction be readily accepted on the grounds of the severe disability of the blind applicant (degree of disability 100; disability markers G, H, Bl. and RF), because she lives in communal accommodation with her children, her mother, and her sister, who support her. In any case, the grounds for an injunction, namely the particular urgency of the matter, have not been credibly demonstrated. Therefore, the extensive arguments presented by the applicants' legal representative in the first instance regarding additional needs due to single parenthood were not considered further.
The decision on costs follows from § 193 SGG.
Legal aid is granted pursuant to Section 73a Paragraph 1 Sentence 1 of the Social Court Act (SGG) in conjunction with Section 114 Paragraph 1 Sentence 1 of the Code of Civil Procedure (ZPO). The required sufficient prospect of success for the non-frivolous appeal is evident from the foregoing explanations. The applicants also meet the financial requirements for the granting of legal aid. The appointment of a lawyer is made pursuant to Section 73a Paragraph 1 Sentence 1 of the Social Court Act (SGG) in conjunction with Section 121 Paragraph 2 of the Code of Civil Procedure (ZPO).
This decision is final and cannot be appealed, § 177 SGG.
