DECISION
In the proceedings
xxx,
– Applicant –
Legal representative: Attorney Sven Adam
, Lange-Geismar-Str. 55, 37073 Göttingen
against
State of Baden-Württemberg,
represented by the Ludwigsburg District Office, Asylum Department,
Hindenburgstr. 40, 71638 Ludwigsburg
– Respondent –
The 16th Chamber of the Social Court of Heilbronn
on March 5, 2024 in Heilbronn
through Judge xxx of the Social Court
without oral proceedings:
The respondent is ordered by way of preliminary injunction to grant the applicant benefits pursuant to Section 3a Paragraph 1 No. 1 and Paragraph 2 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG) from February 20, 2024, until a final and binding decision is reached on the objection of February 20, 2024, against the decision of February 1, 2024, but no later than May 31, 2024, taking into account benefits already received.
The respondent must reimburse the applicant's extrajudicial costs.
The applicant is granted legal aid with the appointment of lawyer Sven Adam.
REASONS
I.
The applicant, born on xxx 1986 and a Nigerian national, first entered the federal territory on xxx 2017 and submitted an asylum application on December 4, 2017.
Since his entry into the country, the applicant has received benefits under the Asylum Seekers' Benefits Act. Since June 28, 2018, the applicant has been residing in communal accommodation in Gerlingen.
On September 23, 2018, the Raubling border police station announced that the applicant was in possession of an Italian residence permit valid until July 20, 2022.
By decision dated April 23, 2020, the Federal Office for Migration and Refugees (BAMF) rejected the applicant's asylum application as inadmissible. He was threatened with deportation to Italy. The decision stated that the applicant had been granted subsidiary protection in Italy, and that this protection status was valid until July 30, 2022. On March 18, 2021, the applicant was assigned to the municipality of Korntal-Münchingen as part of the subsequent accommodation program (Section 18 Paragraph 1 of the Refugee Reception Act – FlüAG). There, he was housed in communal accommodation.
Following the rejection of the asylum application as inadmissible, the respondent granted the applicant only reduced benefits in accordance with Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG).
Most recently, by decision dated December 14, 2023, the respondent granted the applicant reduced benefits from December 1, 2023, "pursuant to Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG)" to cover his needs for food and accommodation, including heating costs, as well as personal hygiene and healthcare for six months. In the decision, the respondent ruled that the applicant would receive accommodation costs – in the amount of €143.60 – as well as €185 in vouchers and €18 in the form of a cash check. The respondent based this decision on the provisions of Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG).
The applicant objected to this.
By decision dated February 1, 2024, the respondent granted the applicant benefits in the amount of €512.60 from December 1, 2023, and in the amount of €556.60 from February 1, 2024, to May 31, 2024, each amount including €143.60 for accommodation costs. The respondent explained that the payments to cover necessary needs were granted according to the amounts stipulated in Section 3a, paragraphs 1 and 2 of the Asylum Seekers' Benefits Act (AsylbLG). The allocation was based on standard benefit level 2.
The applicant's authorized representative lodged an objection against this on February 20, 2024.
On February 20, 2024, the applicant, through his authorized representative, also filed an application for a preliminary injunction. In support of this application, he argues that the provisions of Sections 3, 3a Paragraph 1 No. 2 lit. b, and Paragraph 2 No. 2 lit. b of the Asylum Seekers' Benefits Act (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 (cf. Federal Constitutional Court, judgment of February 9, 2010 – Case No.: 1 BvL 1/09, BVerfGE 125, 175) and contravene the general principle of equality, Article 3 Paragraph 1 GG. The fundamental right to a dignified minimum standard of living guarantees every person in need of assistance the material prerequisites essential for their physical existence and for a minimum level of participation in social, cultural, and political life (Federal Constitutional Court, judgment of February 9, 2010 – Case No.: 1 BvL 1/09, BVerfGE 125, 175, 1st headnote). The fundamental right to a dignified minimum standard of living necessitates a review of the basis and method of calculating benefits to determine whether they meet the objective of this fundamental right. The protection of this fundamental right also extends to the procedure for determining the minimum standard of living because a review of the outcome against the standard of this fundamental right is only possible to a limited extent. To ensure the transparency and judicial review of the scope of statutory assistance commensurate with the importance of the fundamental right, the determination of benefits must be justifiable on the basis of reliable figures and sound calculation methods (Federal Constitutional Court, judgment of February 9, 2010 – Case No.: 1 BvL 1/09, BVerfGE 125, 175, para. 109). With regard to the specific needs of those entitled to benefits under Sections 3, 3a para. 1 no. 2 lit. b, para. 2 no. 2 lit. b of the Asylum Seekers' Benefits Act (AsylbLG), the legislature has not conducted any investigations.
The applicant's representative requests that
the respondent be ordered, by way of preliminary injunction, to grant the applicant provisionally and subject to the right of recovery until a final and binding decision is reached on the applicant's objection of 20 February 2024 against the respondent's decision of 1 February 2024, taking into account the legal opinion of the court, the requested benefits in the constitutionally compliant amount at standard benefit level 1 from the date of receipt of this application by the court.
The respondent requests that
the application be rejected.
The respondent lives in communal accommodation and is therefore only entitled to standard benefit level 2. The Federal Constitutional Court has ruled on a different set of circumstances, namely on analogous benefits. According to Article 20 Paragraph 3 of the Basic Law (GG), the respondent is bound by law and therefore not authorized to disregard a law.
II.
The application is admissible and well-founded.
According to Section 86b Paragraph 2 Sentence 1 of the Social Courts Act (SGG), the court of first instance may, upon application, issue a preliminary injunction if there is a risk that a change in the existing situation could frustrate or significantly impede the realization of a right of the applicant. 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 (Section 86b Paragraph 2 Sentence 2 SGG). This is the case if, after a balancing of interests and taking into account the circumstances of the individual case, it is unreasonable to expect the applicant to await the decision in the main proceedings (Keller in: Meyer-Ladewig/Keller/Leitherer, SGG Commentary, 14th edition 2023, Section 86b, marginal note 28). The likelihood of success of the main legal remedy (claim for an injunction) and the urgency of the desired preliminary injunction (ground for an injunction) must be substantiated (§ 86b para. 2 sentence 4 of the Social Court Act (SGG) in conjunction with § 920 para. 2 of the Code of Civil Procedure (ZPO)). A claim for an injunction is substantiated if the applicant has a claim to the requested performance under substantive law with a high degree of probability (Burkiczak in: Schlegel/Voelzke, jurisPK-GG, 2nd ed., § 86b SGG para. 384 (as of March 4, 2024)). The court conducts a summary review of the facts and the law to the extent possible within the available time, with the review being more thorough the more serious the potential consequences (Binder in Berchtold, Sozialgerichtsgesetz [Social Courts Act], 6th edition 2021, § 86b para. 41). Grounds for an injunction are only considered credible if it is highly probable that the applicant would suffer unreasonable disadvantages if they were to await the outcome of the main proceedings (Burkiczak, ibid., para. 412 (as of January 10, 2020)).
The claim for an injunction and the grounds for it 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. Due to their functional connection, the claim for an injunction and the grounds for it form a dynamic system (Keller in Meyer-Ladewig/Keller/Leitherer, SGG, 14th edition 2020, § 86b para. 27, 29 and 29a with further references). If a claim on the merits would be 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 a claim on the merits would be manifestly well-founded, the requirements for the grounds for the injunction are reduced, even though a ground for the injunction cannot be dispensed with entirely in this case. If the outcome of the main proceedings is uncertain, for example if a complete clarification of the factual and legal situation is not possible in the preliminary proceedings, a decision must be made by weighing the consequences as to which party can more reasonably be expected to wait for the decision in the main proceedings (LSG Hessen 13.03.2008 – L 7 SO 100/07 ER).
However, Article 19 Paragraph 4 of the Basic Law (GG) sets special requirements for the design of preliminary injunction proceedings if, without the granting of preliminary legal protection, serious and unreasonable impairments could arise that cannot be averted in any other way and that could no longer be remedied by the main proceedings (Federal Constitutional Court, Chamber Decision of May 12, 2005 – BvR 569/05, para. 24 in juris). While the decision in preliminary injunction proceedings can also be based on a summary examination of the merits instead of a balancing of interests, even if subsistence benefits are entirely at issue (Federal Constitutional Court, Decision of August 6, 2014, 1 BvR 1453/12), it must be noted that the more serious and probable a threatened violation of fundamental rights is, the more intensively the court must examine the factual and legal situation. If a definitive violation of fundamental rights is imminent, the court must lower the requirements for establishing prima facie evidence.
Based on this, the applicant is to be granted higher benefits by way of an interim injunction, since such a claim exists with a high degree of probability.
In this respect, the court concurs with the legal opinion of the Bavarian State Social Court (judgment of October 30, 2023, L 8 AY 33/23), according to which a constitutionally compliant interpretation of Section 3a of the Asylum Seekers' Benefits Act (AsylbLG) is required. The court hearing the case here is also convinced that significant constitutional concerns exist regarding a literal interpretation. In this regard, the court refers to the decision of the Federal Constitutional Court (BVerfG) of October 19, 2022 (1 BvL 3/21). There, the Federal Constitutional Court stated: "If benefits to secure a dignified existence are not already manifestly insufficient, it must be examined whether they are comprehensible, objectively differentiated, and, overall, justifiable." According to the Federal Constitutional Court, this is not the case when considering the legislature's assumption "that single people in need living in communal accommodation regularly achieve savings through shared living arrangements with other residents, which correspond to a 10% reduction in benefits compared to the standard benefit level 1." The legislature also based the provision of Section 3a, paragraph 1, no. 2 b) and paragraph 2, no. 2 b) on this unsubstantiated assumption of savings (see, in this regard, the decision of the Lower Saxony-Bremen State Social Court of June 29, 2023, L 8 AY 18/23 B ER).
Therefore, a norm-preserving teleological reduction requires that, in addition to living together in communal accommodation, there must also be verifiable circumstances justifying cost savings, such as mutual support within a community, comparable to the situation of couples living together and the permissible assumption of actual cost savings associated with this (see also Bavarian State Social Court, judgment of April 29, 2021, L 8 AY 122/20). The respondent has presented no evidence to this effect, nor is it apparent from the file that the applicant...
Because of the overwhelming likelihood of success in the main proceedings, there is also a ground for an order (cf. LSG Lower Saxony-Bremen, aaO).
The cost consequences result from the corresponding application of Section 193 of the Social Court Act (SGG).
The appeal is inadmissible, § 172 para. 3 no. 1 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 application is evident from the foregoing explanations. The applicant also meets 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).
