Bavarian State Social Court

In the appeal proceedings

xxx,

– Applicant and complainant –

Legal representative:
Attorney Sven Adam, Lange-Geismar-Straße 55, 37073 Göttingen

against

Rhön-Grabfeld District, represented by the Rhön-Grabfeld District Office, Social Welfare Office,
represented by the District Administrator, Spörleinstraße 11, 97616 Bad Neustadt an der Saale

– Respondent and Appellant –

due to a temporary order

The 8th Senate of the Bavarian State Social Court in Munich issues this ruling

on October 30, 2023

Without oral proceedings, the following decision was made by Judge xxx of the Bavarian State Social Court as presiding judge, as well as Judge xxx of the Bavarian State Social Court and Judge xxx of the Bavarian State Social Court

DECISION:

I. Upon the applicant's appeal, the decision of the Würzburg Social Court of September 12, 2023, is amended in points I and II, and the respondent is ordered by way of preliminary injunction to grant the applicant basic benefits pursuant to Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) in the amount of needs level 1 for the period from August 14, 2023, to January 31, 2024, taking into account benefits already received. The appeal is otherwise dismissed.

II. The respondent shall reimburse nine tenths of the applicant's extrajudicial costs.

III. The applicant is granted legal aid without installment payments for the appeal proceedings and attorney Adam, Göttingen, is appointed to represent him.

REASONS

I.

The applicant (ASt) is claiming, by way of preliminary legal protection, higher benefits for subsistence under the Asylum Seekers' Benefits Act (AsylbLG).

The applicant, who stated he was born in 1983 and is an Ivorian national, first entered Germany on September 11, 2018, and applied for asylum. After a stay in reception centers, he was assigned to communal accommodation in the area of the respondent (Ag) on March 18, 2020 (decision of the government of Lower Franconia dated March 11, 2020), where he has resided since then.

At the hearing at the Federal Office for Migration and Refugees (BAMF) on September 24, 2018, the applicant stated that he had come to Spain on June 22, 2018, but had not felt safe there and had therefore travelled to Germany via France.

By decision dated December 3, 2018, the Federal Office for Migration and Refugees (BAMF) rejected the applicant's asylum application and application for subsidiary protection as inadmissible, determined that no grounds for prohibition of deportation existed, and ordered the applicant's deportation to Spain. According to Regulation (EU) No. 604/2013 of the European Parliament and of the Council of June 26, 2013 (Dublin III Regulation), Spain was responsible for the asylum procedure. The deportation order became final on December 13, 2018 (BAMF notification dated December 14, 2018); however, the applicant filed an action against the BAMF's decision of December 3, 2018, with the Bavarian Administrative Court of Würzburg (VG) (case no. W 2 K 18.50561).

The transfer of the asylum seeker to Spain by plane was planned for April 10, 2019. The asylum seeker was notified of this and asked to be ready for pickup. He was also informed that he should expect a prolonged restriction of his benefits if the departure could not be carried out for reasons attributable to him. The deportation was aborted because the asylum seeker refused to board the plane and announced his intention to actively resist (final report of the Federal Police dated April 10, 2019).

After the transfer deadline had expired, the Federal Office for Migration and Refugees (BAMF) announced a decision in the national proceedings and revoked its decision of December 3, 2018 (BAMF letter of May 31, 2019). Subsequently, the proceedings before the Administrative Court were discontinued (decision of June 24, 2019).

By decision dated July 26, 2019, the Federal Office for Migration and Refugees (BAMF) rejected the asylum application and the applicant's application for subsidiary protection, determined that no grounds for prohibition of deportation existed, and ordered him to leave the Federal Republic of Germany under threat of deportation to Ivory Coast. The applicant's subsequent legal action was dismissed by the Administrative Court (VG) in its judgment of March 4, 2020 (Case No. W 2 K 19.31525).

Following an initial interview with the applicant on September 27, 2019, the interpreter expressed concerns to the Government of Lower Franconia – Central Immigration Authority of Lower Franconia – (ZAB) regarding the applicant's stated origin. The interpreter stated that the applicant's dialect and language use did not match his stated origin, and that the given locations were implausible. Furthermore, the applicant stated that he had begun his journey in 2015, with Germany as his destination. He had traveled through Spain and France to reach Germany.

On the same day, the applicant was also informed that he had to cooperate in clarifying his identity and nationality and submit a passport or passport substitute as well as all other documents and records relating to his person, identity, or nationality. He was also obliged to cooperate in obtaining an identity document.

Following the dismissal of the claim by the Administrative Court, the Central Office for Foreigners (ZAB) informed the applicant by letter dated June 4, 2020, of his passport obligation and requested that he fulfill his duty to cooperate by July 16, 2020, by submitting a passport or passport substitute, or by providing evidence of efforts to obtain such a document. Failure to comply with this request could result in a reduction of his social benefits. The applicant also received a form with further detailed instructions regarding the passport requirement and the obligation to provide accurate information, as well as a warning that violations of immigration law obligations could lead to benefit restrictions.

From June 5th, 2020, temporary residence permits were issued to the applicant, and from August 3rd, 2020, these were issued as temporary residence permits for persons with unclear identity.

At the request of the applicant, the Central Immigration Authority (ZAB) informed him on June 24, 2020, that the applicant was guilty of an abuse of process because he was responsible for his failure to leave the country. Furthermore, he was requested to cooperate in obtaining a passport by July 17, 2020. In addition, this was a former "Dublin case.".

During a meeting at the ZAB (Central Office for Foreigners) on July 16, 2020, the applicant presented a bus ticket to Berlin and a video filmed in front of the Ivorian embassy in Berlin. He later informed the agency that he had been to the embassy on July 15, 2020, but that they were unable to assist him due to the pandemic.

By decision dated July 24, 2020, the agency granted the applicant basic benefits under the Asylum Seekers' Benefits Act (AsylbLG) from March 18, 2020 to July 31, 2020 in the amount of EUR 316 per month. Accommodation, heating, and household goods and supplies would be provided in kind by the government of Lower Franconia.

For the period from August 2020 to January 2021, the agency restricted the benefits of the applicant by decision dated 15 September 2020 because the applicant had refused to cooperate in obtaining identity documents.

On February 11, 2021, the applicant received a further request from the Central Immigration Authority (ZAB) to obtain a passport or passport substitute, or to provide proof of corresponding efforts, by March 26, 2021, along with a list of lawyers in Côte d'Ivoire. The applicant stated that applying for a passport was not possible at this time, as he possessed no documents from his home country. He had no family members in his home country or any contact information for them and had also tried unsuccessfully to contact a lawyer. The ZAB responded that sufficient cooperation would only be considered complete once a confirmation of engagement from the appointed lawyer, proof of payment, and all necessary information had been provided.

Further restrictions on entitlement for the aforementioned reasons were imposed by the Ag on 17 June 2021 for the months of February 2021 to July 2021, by decision of 13 September 2021 for the months of August 2021 to January 2022 and by decision of 31 January 2022 for the months of February 2022 to July 2022.

In its communication of February 15, 2022, the ZAB again stated that there were indications of a restriction of entitlement. However, it also noted that there was no single causal link, because deportations to Ivory Coast were currently not possible due to the Corona pandemic.

A further request to the applicant to obtain a passport, with a deadline of April 13, 2022, was issued on March 16, 2022.

On June 7, 2022, the applicant acknowledged his paternity of a child born on April 6, 2022, who lives with its mother, also from Ivory Coast, in the district of Holzminden (Lower Saxony). He also declared joint custody. Furthermore, the applicant submitted a request for the transfer of custody to his wife and child.

In its communication of July 19, 2022, the ZAB reiterated that there were indications of a restriction of entitlement. It also stated that a single cause was present.

Based on this, the agency also restricted the benefits of the applicant for the period from August 2022 to January 2023 by decision dated 01.08.2022.

During the review process for a possible relocation of the asylum seeker, the Holzminden district immigration office stated (email dated August 19, 2022) that the asylum seeker's identity must first be verified. The child is still in the asylum process. A visit is possible with permission.

Regarding the period from February to July 2023, the agency imposed a restriction of benefits in the same manner as before, by decision dated January 19, 2023. A review application was subsequently filed on May 19, 2023. Furthermore, the applicant sought preliminary legal protection from the Würzburg Social Court (case no. S 9 AY 35/23 ER). However, the Social Court rejected the application by decision dated July 12, 2023. The appeal filed against this decision with the Bavarian State Social Court (case no. L 8 AY 27/23 B ER) was withdrawn after being advised of its inadmissibility.

The ZAB, after providing further instructions, set a deadline of 11 April 2023 for the applicant to obtain a passport or to provide proof of cooperation by letter dated 13 March 2023.

The applicant's then-representative stated that the applicant had commissioned someone to obtain his birth certificate. However, this person expected payment, which was hardly possible for the applicant as he lived on vouchers. After receiving the birth certificate, he would endeavor to obtain his passport (email dated March 30, 2023).

Following a hearing (letter dated July 17, 2023), the agency, by decision dated July 28, 2023, restricted the applicant's benefits for the period from August 1, 2023, to January 31, 2024. The applicant refused to cooperate in obtaining identity documents. Despite being instructed by the immigration authorities, he failed to comply with his obligations to cooperate. Therefore, measures to terminate his residence were not possible for reasons attributable to him. For the period from August 2023 to January 2024, benefits in kind were granted in the form of vouchers for food amounting to €174.65, for healthcare amounting to €11.58, and for personal hygiene amounting to €17.57. Accommodation and heating, as well as household goods and supplies, were covered by benefits in kind from the government of Lower Franconia. The benefits were limited to six months. The conditions for the restriction of benefits continued to be met. The applicant failed to comply with his obligation to cooperate in obtaining his passport. No changes had occurred that could lead to a different decision. The benefit restriction could be averted by his cooperation in obtaining the passport.

The Central Immigration Office (ZAB) also informed the applicant on August 28, 2023, that there were indications of a restriction of his entitlement. Firstly, the scheduled deportation by air to Spain on April 10, 2019, had to be canceled because the applicant had passively resisted. Secondly, the applicant had been repeatedly instructed and requested to obtain a travel document and/or passport. He had not yet submitted any such documents. The fact that he could not be deported to Ivory Coast was solely due to his behavior.

During an interview at the Central Immigration Office (ZAB) on September 18, 2023, the applicant was advised about voluntary return options but stated that he did not wish to make use of them. He also submitted a photograph of a civil register extract from his hometown dated February 3, 2010.

On August 14, 2023, the applicant filed an objection against the decision of the agency dated July 28, 2023, and simultaneously submitted an application to the Social Court for preliminary legal protection and for legal aid with the appointment of counsel. The applicant argues that the present sanction cannot be constitutional according to the decision of the Federal Constitutional Court of November 5, 2019 (1 BvL 7/16) concerning sanctions under Book Two of the German Social Code (SGB II). In light of this, the Lower Saxony-Bremen State Social Court, in proceedings concerning benefits under the Asylum Seekers' Benefits Act (AsylbLG), stated that the question of the compatibility of the benefit restrictions with the Basic Law (GG) had been raised once again. The court questioned whether the benefit restriction pursued a legitimate aim, met the strict requirements of proportionality, whether the concept and design of the benefit restriction were based on a constitutionally sound assessment by the legislature, whether there was sufficient evidence to demonstrate the suitability, necessity, and appropriateness of the sanctions, and whether other legal requirements, such as the protection of marriage and family, were taken into account. While the court could not reject the provision based on doubts about its constitutionality, it was necessary, in preliminary injunction proceedings, to make a judicial decision within the framework of a balancing of interests, given the questions raised. In this case, this decision could only lead to the temporary suspension of the benefit reduction. This applies all the more so since, in the present case, a reduction of the standard benefit by more than 50% is incompatible with Article 1 of the Basic Law. Moreover, he is now receiving his seventh consecutive reduction. The Higher Social Court of Saxony (decision of February 22, 2021 – L 8 AY 9/20 B ER) ruled that benefit restrictions may only be imposed for a limited period, e.g., three months with a maximum extension to six months within a one-year period. Under no circumstances may they be imposed for a fixed period, permanently, or for an extended period. Furthermore, a benefit reduction of this magnitude would violate constitutional requirements if a foreign national receiving benefits were deprived of approximately 50% of their monthly standard benefit. In the present case, this means that a benefit reduction of this duration cannot be justified under constitutional law. Furthermore, there was no breach of his duty to cooperate, as he had repeatedly stated that the required cooperation was impossible. The reduction in benefits was also discriminatory, as it was unlawful to grant benefits only in the form of vouchers. The agency had not provided any justification for issuing vouchers and was therefore acting in breach of its discretionary powers. For this reason alone, benefits should be provided in the form of cash payments in the future. Granting benefits in the form of vouchers violated his human dignity. Everyday shopping was stigmatized. Shopping at weekly markets with fresh produce was practically impossible. The same applied to flea markets. Moreover, there was a violation of data protection, as the vouchers revealed his social data as a "recipient of benefits under the Asylum Seekers' Benefits Act" (AsylbLG). This was far more degrading, as he, as a benefit recipient, was forced to repeatedly disclose his status to an undefined group of people, namely at every supermarket checkout in front of all waiting customers. Furthermore, migration policy is an inadmissible criterion for decision-making. The granting of vouchers, however, is based solely on migration policy considerations. Adults must be allowed the opportunity to freely arrange their own needs within the limits of the resources available to them. Therefore, individuals have a fundamental right to receive ongoing cash benefits for their subsistence. Moreover, the constitutionally mandated minimum level of social, cultural, and political participation cannot be achieved through the issuance of benefits in kind or vouchers.

The agency responded that the decision was lawful. The Federal Constitutional Court had, in principle, upheld the sanction provisions in the German Social Code, Book II (SGB II). According to this ruling, obligations to cooperate could also be enforced through financial pressure. Even a complete withdrawal of benefits was possible if and as long as benefit recipients themselves had the ability to secure their dignified existence directly and effectively by earning an income. Applying these considerations to the Asylum Seekers' Benefits Act (AsylbLG), it became clear that the existing possibility of sanctions gave no cause for constitutional concerns. Benefits under the AsylbLG could not be granted without need or without prerequisites. The purpose of the restriction of entitlement under Section 1a Paragraph 3 of the AsylbLG was to limit the provision of benefits to individuals who had no right to remain. Furthermore, the Federal Constitutional Court's statements could not be applied to sanctions under the Asylum Seekers' Benefits Act. Thus, the Asylum Seekers' Benefits Act (AsylbLG) does not impose a strict percentage reduction, and benefits for food and accommodation, including heating, as well as personal and healthcare, continue to be provided. The legislature has therefore adhered to the principle of proportionality. Furthermore, there is no risk of homelessness within the scope of the AsylbLG. The applicant is not cooperating in obtaining a passport. He has been repeatedly requested to cooperate by the immigration authorities. It is also overlooked that the benefit provider is bound by the principle of providing benefits in kind. No stigmatization is occurring, as the applicant receives benefits for food, personal, and healthcare at his own discretion. These categories of goods are not sold at flea markets. Moreover, the reference to weekly markets, which are generally considerably more expensive, is not convincing. Finally, no concrete reasons have been presented as to why the applicant cannot wait for a decision on the merits of his case. His situation has not changed compared to the reductions that have already been implemented.

The Social Court (SG) rejected the application for preliminary legal protection (points I and II) and the application for legal aid and the appointment of counsel (point III) by decision of September 12, 2023. The application was admissible but unfounded. The applicant was not entitled to basic benefits without restrictions. Since the conclusion of his asylum proceedings, he had been subject to an enforceable obligation to leave the country. Measures to terminate his residence could not be enforced for reasons attributable to the applicant, as he was not cooperating in obtaining identity documents. The obligation to cooperate in obtaining identity documents required the foreigner not only to submit the necessary documents and appear before the diplomatic mission of his home country, but also to provide further information that would enable his identification. He could not simply limit himself to the obligations stipulated by the immigration authorities. The applicant was not complying with this requirement. Despite repeated warnings and requests from the immigration authorities, he has to date failed to provide valid proof of an embassy visit or efforts to obtain documents in his home country. The necessary causal link is also established. Furthermore, the applicant was given a reasonable deadline to cease his benefit fraud. The six-month period of benefit restriction was not intended as an upper limit, but rather requires review after this period. The benefit restriction should be continued if the breach of duty persists and the conditions for the restriction continue to exist. A permanent benefit restriction may be necessary if and because the intended effect has not yet been achieved. Compared to other benefit recipients, it is difficult to understand how full benefits can be received after a relatively short period despite disregarding obligations under immigration or asylum law. The applicant himself has the power to cease the objectionable behavior. Therefore, the six-month extension is not objectionable. The restriction of benefits is also linked to a requirement under immigration law, which the person entitled to benefits fails to fulfill for reasons attributable to them. Constitutional law does not permit unconditional, means-tested social benefits. It must be considered that, in this case, the applicant's stay in Germany cannot be terminated solely due to their refusal. They can change their behavior at any time, even if this would result in their deportation. However, this is merely a consequence of the legally binding decision of the Federal Office for Migration and Refugees (BAMF) and not a reason to waive the required cooperation. Legal aid cannot be granted due to a lack of prospects for success.

The applicant has appealed this decision to the Bavarian State Social Court and requested legal aid and the appointment of his legal representative (the appeal against point III of the Social Court's decision is filed under file number L 8 AY 38/23 B PKH). Reference has been made to the arguments presented in the first instance.

For further information on the facts of the case, reference is made to the submitted official files and the court files of both instances.

II.

The appeal, filed in due form and time (§§ 172, 173 of the Social Courts Act – SGG), is also admissible in all other respects. In particular, it is permissible because the value of the subject matter of the appeal exceeds EUR 750 (§ 172 para. 3 no. 1 in conjunction with § 144 para. 1 sentence 1 no. 1 SGG). According to the applicant's request (see below), the value of the claim being pursued in the appeal proceedings amounts to at least EUR 206.20 per month. This amount corresponds to the difference between the benefits granted under Section 1a Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG), totaling €203.80 per month, and the basic benefits under Section 3 of the AsylbLG, currently €410 per month (Section 3a Paragraph 1 No. 1 and Paragraph 2 No. 1 of the AsylbLG in conjunction with the announcement of December 21, 2022, Federal Law Gazette I, p. 2601). The difference is even greater compared to the analogous benefits also sought under Section 2 Paragraph 1 of the AsylbLG. Therefore, for the period in dispute here, from August 14, 2023, to January 31, 2024, the threshold of €750 is exceeded.

The appeal is largely successful.

The subject of the appeal proceedings – as is evident from the applications submitted with the assistance of legal counsel and the further submissions – is the applicant's request for higher benefits under the Asylum Seekers' Benefits Act (AsylbLG). Since the amount of benefits under the AsylbLG constitutes a single subject of dispute, regardless of the legal basis on which the request for additional benefits is founded, the benefit amount must be examined from every legal perspective – at least regularly by way of interpretation according to the most-favored-nation principle (see Federal Social Court [BSG], judgments of June 17, 2008 – B 8/9b AY 1/07 R and of June 26, 2013 – B 7 AY 6/11 R; judgment of the Senate of April 29, 2021 – L 8 AY 122/20 – all available on juris). Even though this was not explicitly requested and was not addressed, the Senate understands the wording of the initial application, "benefits at the statutory rate," to mean that benefits equivalent to so-called analogous benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) were not excluded. The applicant continues to pursue this request unchanged in the appeal proceedings, as no limitation has been declared. Benefits are claimed starting from the date the application for preliminary legal protection was received by the Social Court (SG), which was August 14, 2023.

The Senate cannot discern a further legal objective of the applicant, namely that he is alternatively challenging the granting of the restricted benefits in the form of vouchers from August 14, 2023. While the applicant does provide extensive arguments on this point, these must be understood as an attempt to substantiate his claim for higher benefits than those currently restricted. This is evident from the fact that – despite legal representation – no corresponding (alternative) application was submitted, and the arguments regarding the issuance of vouchers, as outlined in the application (brief dated August 14, 2023), are presented within the context of the argument that the restriction of benefits itself is unlawful.

The application for preliminary legal protection, understood in this way, is partially admissible as an application for the issuance of a preliminary injunction, namely insofar as benefits are sought to the extent of basic services.

The decisive factor in determining how preliminary legal protection is to be granted is the legal remedy admissible in the main proceedings (see the Senate's decision of November 19, 2018 – L 8 AY 23/18 B ER – juris). In the present case, this would be a combined action for annulment and performance (§ 54 paras. 1 and 4 of the Social Court Act [SGG]), so that § 86b para. 1 SGG does not apply. The applicant was granted benefits in accordance with § 1a para. 1 of the Asylum Seekers' Benefits Act (AsylbLG) at needs level 1 for the period in dispute here, from July 5, 2023, to December 31, 2023, by decision of July 28, 2023. There is no earlier benefit award that has been revoked or withdrawn. The initial benefit award by the agency was indeed limited to basic benefits (decision of July 24, 2020). However, this award was expressly restricted to the period up to July 31, 2020. Since then, the agency has consistently granted the applicant only limited benefits (decisions of September 15, 2020, June 17, 2021, September 13, 2021, January 31, 2022, August 1, 2022, and January 19, 2023). Therefore, ordering the suspension of the effect of an objection or appeal against the decision of July 28, 2023, which governs the benefit award for the period in dispute, would not achieve the desired higher level of benefits. Therefore, preliminary legal protection can only be granted pursuant to Section 86b Paragraph 2 Sentence 2 of the Social Court Act (SGG), since the applicant is seeking an expansion of his legal position.

The admissibility of the application for preliminary legal protection is not precluded by a legally binding decision. The decision of the Administrative Court dated July 28, 2023, has not become legally binding due to the objection dated August 14, 2023, which – as far as can be seen – has not yet been decided.

However, with regard to the also sought benefit award under Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG), the applicant lacks the necessary legal standing. In the case of a preliminary injunction, this generally requires that the applicant has previously submitted their request to the competent authority (see the Senate's decision of October 27, 2020 – L 8 AY 105/20 B ER – juris; Keller in Meyer-Ladewig/Keller/Schmidt, SGG, 14th edition, Section 86b, marginal note 26b). This is not the case here. As explained above, the agency has only granted the applicant basic benefits for a few months since their assignment to their current accommodation on March 18, 2020, and only limited benefits since August 2020. The applicant has not yet asserted a claim for analogous benefits against the respondent, but only for the first time with the present application for preliminary legal protection and the simultaneously filed objection against the decision of July 28, 2023. Given the described timeframe, an exceptional waiver of prior involvement of the respondent was not warranted.

Insofar as this is permissible, the application for preliminary legal protection is successful on the merits.

According to Section 86b Paragraph 2 Sentence 2 of the Social Court Act (SGG), preliminary injunctions to regulate a provisional state of affairs with regard to a disputed legal relationship are permissible if such regulation appears necessary to avert substantial disadvantages. The regulatory order requires the existence of a claim for the injunction – that is, the substantive legal claim on which the applicant bases their request and which corresponds to the subject matter of main proceedings – as well as grounds for the injunction – which is generally the urgency of the matter. The information regarding these grounds must be substantiated (Section 86b Paragraph 2 Sentence 4 SGG in conjunction with Section 920 Paragraph 2 of the Code of Civil Procedure – ZPO), whereby an affidavit (Section 294 Paragraph 1 ZPO) is also admissible as evidence. With regard to the standard of proof, the preponderance of the evidence is sufficient (cf. Section 23 Paragraph 1 Sentence 2 of the Tenth Book of the Social Code – SGB X), any remaining doubts are harmless (cf. Burkiczak in jurisPK-SGG, Section 86b, as of 06.10.2023, Section 86b Rn. 494).

There is a reciprocal relationship between the grounds for an injunction and the claim for such an injunction. Less stringent requirements apply to the existence of grounds for an injunction if, upon examination of the facts and the law to the extent prescribed by the Federal Constitutional Court (Federal Constitutional Court, Decision of May 12, 2005 – 1 BvR 569/05 – Breith 2005, 803), success in the main proceedings is highly probable. If a claim brought in the main proceedings is or would be manifestly inadmissible or unfounded, the issuance of a preliminary injunction must be rejected due to the lack of a claim for such an injunction. If the prospects of success in the main proceedings are uncertain, the grounds for the injunction become decisive.

In appeal proceedings, the appellate court renders a new decision after a renewed summary review of the facts and the law, without being limited to reviewing the initial decision (see Karl in jurisPK-SGG, § 176, as of April 28, 2023, para. 12). The relevant point in time for assessing the facts and the law, both in the case of a regulatory order and in the case of an action for annulment or performance, is the time of the court's decision (see Keller, ibid., § 86b para. 42).

Insofar as subsistence benefits are at stake and therefore a significant violation of fundamental rights beyond marginal areas is threatened, which can no longer be remedied by a decision in favor of the plaintiff in the main proceedings, a refusal to grant preliminary legal protection is only possible if the factual and legal situation has been conclusively clarified (cf. Federal Constitutional Court, decision of 14 September 2016 – 1 BvR 1335/13); a merely summary examination is not sufficient. A decision based on a careful and sufficiently substantiated balancing of interests is only permissible if a review of legality – to be carried out according to the aforementioned standards – cannot be realized even considering the short time regularly available in preliminary injunction proceedings, which must be clearly demonstrated by the court called upon to decide (see also: Federal Constitutional Court, decision of 14 September 2016 – 1 BvR 1335/13; decision of 12 May 2005 – 1 BvR 569/05 – Breith 2005, 803; less unambiguous: Federal Constitutional Court, decision of 6 August 2014 – 1 BvR 1453/12).

Measured against this standard, the applicant is entitled to an order for basic services.

For the monetary benefits at issue here, pursuant to Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Book Twelve of the Social Code (SGB XII) or pursuant to Sections 3 et seq. of the AsylbLG, the agency is locally responsible pursuant to Section 10a Paragraph 1 of the AsylbLG, since the applicant is accommodated in communal accommodation within the agency's jurisdiction and is actually residing there. The agency's substantive jurisdiction as the local authority for granting benefits arises in this case pursuant to Section 10 Sentence 1 of the AsylbLG in conjunction with Section 12 Paragraph 2 Number 2 and Section 18 Paragraph 1 or Section 14 Paragraph 2 of the (Bavarian) Asylum Implementation Ordinance (DVAsyl). Even though the agency acts within a delegated sphere of activity (§ 12 para. 2 no. 2 DVAsyl) and the Free State of Bavaria is ultimately the cost bearer (§ 12 para. 1 DVAsyl), which reimburses the districts and independent cities for the costs incurred (Art. 8 para. 1 sentence 1 of the Reception Act – AufnG), the agency is nevertheless passively legitimized, because even within a delegated sphere of activity it does not act as a state authority (Art. 4 and 6 of the Bavarian District Ordinance).

During the relevant period from August 14, 2023, the applicant is among the persons entitled to benefits under Section 1 Paragraph 1 No. 5 of the Asylum Seekers' Benefits Act (AsylbLG), because he is subject to an enforceable deportation order – the action against the decision of the Federal Office for Migration and Refugees (BAMF) of July 26, 2019, was definitively dismissed (Judgment of the Administrative Court of March 4, 2020 – W 2 K 19.31525) –, is actually residing in the territory of the agency, and since August 5, 2020, has only held a temporary suspension of deportation under Section 60b of the Residence Act (AufenthG) for persons with unclear identity, which does not lead to the application of Section 1 Paragraph 1 No. 4 of the Asylum Seekers' Benefits Act (AsylbLG) (cf. Decision of the Senate of May 11, 2022 – L 8 AY 27/22 B ER – juris). Since, according to the immigration office of the Holzminden district (email dated August 19, 2022), the applicant's daughter only has a temporary residence permit for the purpose of conducting the asylum procedure pursuant to Section 55 Paragraph 1 of the Asylum Act (AsylG), the applicant does not meet the requirements for the issuance of a residence permit under Section 29 of the Residence Act (AufenthG). The child's mother is not the applicant's wife, as there is no proof of this. She is, or at most was, his partner. Therefore, there is no entitlement to a derived right of residence.

The applicant is not entitled to analogous benefits. According to Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG), and deviating from Sections 3 and 4 as well as 6 to 7 of the AsylbLG, the Social Code, Book XII (SGB XII) applies accordingly to those beneficiaries who have resided in Germany for 18 months without significant interruption and have not abusively influenced the duration of their stay.

In the present case, the applicant has fulfilled the stipulated waiting period for the period in dispute (see Oppermann/Filges in jurisPK-SGB XII, § 2 AsylbLG, as of December 21, 2022, para. 32). He entered Germany on September 11, 2018. The 18-month waiting period was therefore fulfilled during the month of March 2020.

However, the applicant has abused his legal position in relation to the duration of his stay in Germany. The concept of abuse of rights is based on the principle of good faith, according to which no one may invoke a legal position that they themselves have created in bad faith. This principle also applies in public law (see Oppermann/Filges, loc. cit., para. 70). The initial aim of the criterion of (the absence of) abusive manipulation of rights within the meaning of Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) is thus to prevent anyone from benefiting from a legal position that they themselves have created in bad faith. As reprehensible misconduct, the concept of abuse of rights includes an objective component – the element of abuse – and a subjective component – culpability. Objectively, abuse of rights requires dishonest conduct that is disapproved of by the legal system, although, given the punitive nature of Section 2 of the Asylum Seekers' Benefits Act, not just any conduct that is in any way disapproving is sufficient. The conduct must generally be capable of influencing the length of stay and, above all, must be of such gravity, taking into account the principle of proportionality, that the exclusion from privileged benefits is justified. The nature, extent, and consequences of the breach of duty must be weighed in the individual case and considered in relation to the strict sanction of indefinite exclusion from benefits at the social assistance level. Only conduct that is inexcusable (socially unacceptable), considering the individual case, the specific situation of a foreigner in the Federal Republic of Germany, and the particular characteristics of the Asylum Seekers' Benefits Act (AsylbLG), leads to the exclusion from analogous benefits. The question of which acts of cooperation are reasonable for foreigners is assessed according to immigration law regulations, taking into account all circumstances and specific features of the individual case. In principle, all actions necessary to obtain a document required for departure or deportation (e.g., national passports, substitute travel documents) and which can only be performed personally by the foreigners are considered reasonable. Foreigners cannot be required to cooperate in a way that is clearly futile from the outset. To raise the accusation of abusively influencing the length of stay, persistent breaches of duty – potentially lasting for years – are necessary. The legally disapproved conduct must be related to influencing the length of stay, whereby the connection between the benefit recipient's misconduct and the total duration of their stay in Germany must be established. A "causal link in the strict sense" is not required; a "typical, general, and abstract approach" suffices. The subjective component of abuse of rights requires a dual intent. The intent must relate to all objective circumstances of the disapproved misconduct and equally to the "typical" causal link; that is, the benefit recipients must act with full knowledge of the alleged misconduct and must also intend this misconduct. They must also be aware of the typical nature of their misconduct that leads to an extension of their stay and must also intend this (cf. in general: BSG, judgments of 17.06.2008 – B 8/9b AY 1/07 R and of 24.06.2021 – B 7 AY 4/20 R, judgment of the Senate of 05.08.2020 – L 8 AY 28/19 – all according to juris; Oppermann/Filges, loc. cit., para. 73 ff.).

By these standards, the applicant's conduct constitutes an abuse of rights. While it has not been proven that he destroyed identity documents or possessed them without submitting them to the relevant authorities, or that he misrepresented his identity, it is questionable whether the extract from the civil register of his hometown dated February 3, 2010, which he presented as a photograph during his interview on September 18, 2023, would even be a relevant document. At the very least, it is not apparent that this document, or the photograph thereof, was available to the applicant previously. Similarly, doubts about the applicant's identity arose during his questioning by the Central Office for Foreigners (ZAB) on September 27, 2020. However, according to the file, these doubts have not been substantiated. Therefore, the Senate cannot be convinced that the applicant provided false information.

However, the applicant's act of resistance thwarted the attempted transfer to Spain on April 10, 2019. The applicant's transfer to Spain by plane was planned for April 10, 2019, and he was notified and asked to be ready for pickup. However, the deportation was aborted on the stairs to the aircraft because the applicant refused to board and announced his intention to actively resist (final report of the Federal Police dated April 10, 2019). In contrast, the applicant's account that he merely stated he did not want to fly to Spain or leave the country is unconvincing. The Senate cannot imagine that the police officers who accompanied the applicant to the aircraft aborted the transfer based on a mere expression of opinion, especially since the time until the end of the transfer deadline in May 2019 was limited. Rather, the flight was aborted because the applicant announced his intention to actively resist deportation and no escort was planned for the flight, leading to concerns about the safety of other passengers. In the Senate's view, the fact that the refusal to fly was not a prolonged act does not preclude the assessment of the action as an abuse of rights. Given the far-reaching consequences and the applicant's clearly expressed intention to prevent deportation by virtually all means at his disposal, despite his enforceable obligation to leave the country, the dishonesty of his behavior is so significant that a permanent exclusion of the applicant from benefits at the level stipulated in Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) appears justified.

It is self-evident that, even from a general and abstract perspective, the applicant's conduct was typically likely to prolong his stay in Germany. Furthermore, the Senate has no doubt that the applicant was aware of this effect and deliberately brought it about. The situation that the applicant's obligation to leave the country could not be enforced for other reasons (cf. Federal Social Court, judgment of February 2, 2010 – B 8 AY 1/08 R – juris) did not exist. Rather, the sole reason was the applicant's lack of identity documents or a passport.

The applicant is entitled to basic benefits during the period in dispute. According to Section 3 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG), those entitled to benefits under Section 1 AsylbLG receive benefits to cover their needs for food, accommodation, heating, clothing, healthcare, and household goods and consumables (essential needs). They are also granted benefits to cover their personal needs of daily life (essential personal needs). The amount of essential and essential personal needs is determined by Section 3a AsylbLG (in conjunction with the announcement of December 21, 2022, Federal Law Gazette I, p. 2601). The applicant meets the aforementioned requirements. As explained, he is entitled to benefits and has no income or assets to be used (Section 7 AsylbLG).

This claim is not precluded by the restriction imposed by the agency for the period from August 2023 to January 2024. This restriction is based on Section 1a Paragraph 3 in conjunction with Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) (in the version applicable since September 1, 2019, as amended by the Act of August 13, 2019, Federal Law Gazette I, p. 1290, and of August 15, 2019, Federal Law Gazette I, p. 1294). According to this provision, persons entitled to benefits under Section 1 Paragraph 1 Number 4 or 5 of the AsylbLG, for whom deportation cannot be carried out for reasons attributable to them, no longer receive benefits under Sections 2, 3, and 6 of the AsylbLG from the day following the enforceability of a deportation threat or deportation order, but generally only benefits to cover their needs for food and accommodation, including heating, as well as personal hygiene and healthcare.

Section 1a, paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) requires, according to its wording, a causal link between the individual's conduct and the impossibility of carrying out their deportation. This requirement is only met if no circumstances outside the benefit recipient's sphere of responsibility are contributing factors to the non-enforcement of the deportation. Only in cases of misconduct by the benefit recipient that is the sole cause of their non-deportation is the restriction of benefits constitutional and, in particular, does it not violate the principle of proportionality in the individual case (see Federal Social Court [BSG], judgment of February 27, 2019 – B 7 AY 1/17 R; also BSG, judgment of May 12, 2017 – B 7 AY 1/16 R; judgment of the Senate of September 26, 2019 – L 8 AY 70/15 – all available on juris). A restriction of benefits under Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) is therefore only possible as long as the abusive conduct continues. This requires a congruence between the abusive conduct and the benefit period (see the Senate's judgment of August 5, 2020 – L 8 AY 28/19; Bavarian State Social Court, decision of August 26, 2021 – L 19 AY 70/21 B ER – both available on juris). The benefit recipient must be able to cease or correct the offending conduct at any time. Consequently, the restriction of benefits no longer has a legal basis if the foreigner's conduct is lawful (see Oppermann in jurisPK-SGB XII, Section 1a AsylbLG, as of February 27, 2023, para. 88).

The Senate can leave open the question of whether the termination of the applicant's stay in Germany from August 2023 onwards is solely due to the applicant's lack of passport documents and his failure to cooperate (sufficiently) in obtaining travel documents for his return home. The applicant has been repeatedly informed by the immigration authorities, most recently in a letter dated March 13, 2023, about passport requirements and the obligation to cooperate in obtaining travel documents for his return home, and has been requested to cooperate. Furthermore, the respondent informed him during the hearing on July 17, 2023, that the failure to cooperate as requested would lead to consequences regarding his benefits in the form of a further reduction in his entitlement.

A further extension of the restriction of benefits is also not possible. Since, in the applicant's case, the restriction of benefits covering the period in dispute follows a pre-existing restriction (decision of January 19, 2023), the requirements arising from Section 14 Paragraph 2 of the Asylum Seekers' Benefits Act (AsylbLG) must also be observed. This provision stipulates that the restriction of benefits must be continued if the breach of duty persists, provided the legal prerequisites for the restriction continue to be met. However, in view of the fundamental right to a dignified minimum standard of living and the principle of proportionality due to the significantly reduced benefits under the AsylbLG compared to other subsistence-level benefit systems, not only is a restrictive interpretation of all provisions of Section 1a AsylbLG required (see the Senate's decision of October 28, 2022 – L 8 AY 66/22 B ER – juris), but this must also be taken into account when applying Section 14 Paragraph 2 AsylbLG. The six-month duration of the benefit restriction stipulated in Section 14 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) is not intended as an upper limit. However, after this period, the authorities are required to review whether the benefit restriction should be maintained. It must be continued if the breach of duty persists and the legal prerequisites for the benefit restriction continue to exist. The period to be set in such cases must be based on the circumstances of the individual case (see the Senate's decision of May 11, 2022 – L 8 AY 27/22 B ER – juris). Furthermore, the Senate has previously raised the question of whether Section 14 Paragraph 2 of the Asylum Seekers' Benefits Act precludes indefinite successive benefit restrictions based on the principle of proportionality (see the Senate's decision of November 21, 2016 – L 8 AY 31/16 B ER – juris). Such an exclusion is sometimes accepted (see Oppermann in jurisPK-SGB XII, § 14 AsylbLG, as of October 25, 2021, para. 23). Elsewhere, a restriction of benefits is considered permissible only if it is limited in time (e.g., to three months with a maximum extension of six months within a one-year period) and under no circumstances permanently or for many years (Saxony-LSG, decision of January 11, 2021 – L 8 AY 10/20 B ER – juris). In the opinion of the Senate, the concept of § 14 para. 2 AsylbLG, which aims to limit the continued effect of a breach of duty in time, is best served, and allows for sufficient consideration of the individual case, if, instead of a constantly equal extension option for the restriction of benefits, a limitation to a maximum of six months is assumed. This, however, requires not only a superficial and formal examination of the individual case, but also consideration of all relevant, especially needs-related, circumstances, which must be expressed in a justification that is not merely formulaic.

This is precisely what is lacking here. As seen, the agency has consistently granted the applicant only restricted benefits since August 2020, always basing this on Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG). In the decision of July 28, 2023, the agency again justifies the further extension of the benefit restriction by six months with a violation of the applicant's obligation to cooperate under immigration law. Even if one doesn't already assume that such a long-term benefit restriction, extending here over more than three years, is inherently inappropriate, its disproportionality is evident at least in this specific case. The agency justifies its decision by stating that the conditions for the benefit restriction continue to be met. The applicant failed to comply with his obligation to cooperate in obtaining a passport. No changes have occurred that could lead to a different decision. This reliance on the already existing conditions for the continued benefit restriction no longer adequately considers the considerable period during which the applicant has already had to manage with significantly reduced benefits. Furthermore, the court overlooks the fact that the applicant has had a daughter since April 2022, for whom he also has parental custody. Although the applicant has not presented any further arguments on this point, the Senate is not under the impression that the applicant actually does not intend to exercise his parental rights. On the contrary, shortly after or concurrently with the acknowledgment of paternity in June 2022, he applied for a transfer of custody to his child and the child's mother. This demonstrates his interest in exercising parental custody. If he has not been able to visit his daughter regularly since then, this is primarily due to the applicant's insufficient financial resources. Although the applicant cannot derive a right of residence from his daughter's merely permitted stay, the protection of marriage and family under Article 6 of the Basic Law (GG) nevertheless carries weight within the framework of Section 14 Paragraph 2 of the Asylum Seekers' Benefits Act (AsylbLG). However, this has not been taken into account in any discernible way.

The Senate therefore considers the imposed restriction of benefits to be likely unlawful. In light of the circumstances outlined, the Senate currently does not consider a restriction of benefits for a shorter period than six months to be justified. Rather, any further reduction of benefits based on Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) should be completely avoided – at least for the time being. In this respect, the applicant cannot simply be referred to the possibility of asserting specific needs in individual cases (cf. Federal Constitutional Court, decision not to accept the appeal of May 12, 2021 – 1 BvR 2682/17; Senate decision of September 6, 2022 – L 8 AY 73/22 B ER – all available on juris).

Other grounds for restricting entitlement are also not met, even based on their prerequisites. The applicant did not travel to Germany to receive benefits under the Asylum Seekers' Benefits Act (AsylbLG) (§ 1a para. 2 AsylbLG). Therefore, the intention to receive social benefits must have existed at the time of entry and been the decisive factor in the decision to enter; merely accepting the possibility is insufficient (cf. judgment of the Senate of March 9, 2023 – L 8 AY 110/22 – juris, with further references). This cannot be established based on the applicant's statement to the Central Immigration Authority (ZAB) during the interview on September 27, 2019, that his destination from Ivory Coast in 2015 had already been Germany. This does not indicate that he intended to receive social benefits here. Furthermore, the applicant stated to the Federal Office for Migration and Refugees (BAMF) during the asylum proceedings that he did not feel safe in Spain and therefore continued his journey to Germany. Furthermore, even if the claim were limited based on a different set of facts, it would have to be taken into account that it was preceded by several years of receiving only reduced benefits. Considering this as well, she would likely be ineligible at present.

Since no restriction of entitlement can be justified under Section 1a AsylbLG, the applicant is entitled to basic benefits during the period in dispute upon summary examination.

The applicant is entitled to basic benefits in accordance with Section 3a Paragraph 1 No. 1 and Paragraph 2 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG), i.e., according to needs level 1. The Senate has already ruled on the comparable provision in Section 2 Paragraph 1 Sentence 4 of the AsylbLG – which has since been declared unconstitutional (Federal Constitutional Court, decision of October 19, 2022 – 1 BvL 3/ – juris) – (Judgment of the Senate of April 29, 2021 – L 8 AY 122/20 – juris), that, as an unwritten requirement, in addition to accommodation in so-called collective accommodation, actual mutual support is required. It has neither been argued nor is it otherwise apparent that this is the case for the applicant. As far as is known, he does not currently live with a partner or any other person with whom mutual support could be assumed.

Grounds for an injunction exist due to the subsistence-securing function of benefits under the Asylum Seekers' Benefits Act (AsylbLG). It is obvious that an unjustified, long-term shortfall in meeting basic needs can lead to unacceptable consequences. Therefore, contrary to the opinion of the Social Court and the court, the applicant cannot be required to await the decision in the main proceedings.

In issuing the preliminary injunction, the Senate exercises its discretion (§ 86b para. 2 sentence 4 of the Social Court Act (SGG) in conjunction with § 938 para. 1 of the Code of Civil Procedure (ZPO)) by limiting its duration until January 31, 2024. This is a sufficiently long period for a preliminary injunction regarding ongoing subsistence benefits. Furthermore, this period corresponds to the duration of the benefit award as set forth in the decision of July 28, 2023, meaning that the agency will have to make a new decision regarding benefits from February 2024 onwards anyway and can take the present decision into account.

The Senate, applying § 130 para. 1 SGG accordingly, maintains the provisional obligation to provide benefits in principle (cf. BSG, judgment of 24.06.2021 – B 7 AY 4/20 R – juris), since the dispute between the parties primarily concerns the question of whether the imposed restriction of entitlement is lawful.

After all this, the complaint should be granted for the most part and the decision should be made as stated above.

The decision on costs is based on the corresponding application of Sections 183 and 193 of the Social Court Act (SGG) and follows the outcome of the case.

Since there were sufficient prospects of success and the applicant has no income or assets to be used, he is to be granted legal aid for the appeal proceedings without installment payments (§ 73a para. 1 sentence 1 SGG in conjunction with § 114 ZPO) and his legal representative is to be appointed (§ 121 para. 2 ZPO).

This decision is final and cannot be appealed pursuant to Section 177 of the Social Court Act (SGG).