DECISION
In the legal dispute
xxx,
– Applicant –
Legal representative:
Attorney Sven Adam, Lange Geismarstraße 55,
37073 Göttingen
against
State of Rhineland-Palatinate, represented by the
President of the Supervisory and Service Directorate,
Willy-Brandt-Platz 3, 54290 Trier
– Respondent –
The 3rd Chamber of the Social Court of Trier decided on April 15, 2024, through the Vice President of the Social Court xxx:
1. The respondent is ordered by way of preliminary injunction to provide the applicant with provisionally higher benefits in accordance with Sections 3 and 3a Paragraph 1 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG) for the period from February 28, 2024, until the decision on the objection of February 20, 2024, or at the latest until the decision on the asylum application by the Federal Office for Migration and Refugees (BAMF). The further application is dismissed.
2. The respondent shall bear the applicant's extrajudicial costs.
3. The applicant is granted legal aid for the exercise of his rights in the first instance, with the appointment of lawyer Sven Adam, Göttingen, under the conditions of a lawyer residing in the district of the Social Court of Trier.
REASONS
The applicant seeks higher benefits under the Asylum Seekers' Benefits Act (AsylbLG) by way of preliminary legal protection.
The applicant, born in June 2005, is a Moroccan citizen according to the Federal Office for Migration and Refugees (BAMF). Since entering the Federal Republic of Germany, he has been housed in a reception center for asylum seekers (AfA) operated by the respondent since September 26, 2023, initially in Trier, and now in Bitburg. He submitted a formal asylum application on October 17, 2023. He holds a temporary residence permit pursuant to Section 55 of the Asylum Act (AsylG).
The respondent grants the applicant benefits under the Asylum Seekers' Benefits Act (AsylbLG). Upon the applicant's request, the respondent paid a cash allowance as necessary personal expenses pursuant to Sections 3 and 3a Paragraph 1 No. 2b of the AsylbLG for the period beginning October 12, 2023. The monthly benefits are calculated on a daily rate (1/30) for the purpose of precise daily payment and are paid every 14 days for the respective period. Thus, on February 22, 2024, the respondent paid €257.60 for the period from January 15, 2024, to February 25, 2024, and on March 1, 2024, €85.90 for the period from February 26, 2024, to March 10, 2024. Otherwise, benefits are provided in kind.
By letter dated 20 February 2024, the applicant lodged an objection against the benefits granted to him under the Asylum Seekers' Benefits Act (AsylbLG) for the period 01 March 2023 or from the date of his assignment to the Employment Agency (AfA) Bitburg and requested higher benefits.
On February 28, 2024, the applicant filed a motion with the court for an interim injunction seeking the provisional granting of higher benefits under the Asylum Seekers' Benefits Act (AsylbLG). He argues that the benefits should be determined according to needs level 1 of Section 3 of the AsylbLG, and not according to needs level 2 as determined by the respondent. He contends that the provisions of Sections 3, 3a Paragraph 1 No. 2b, and Paragraph 2 No. 2b of the AsylbLG are manifestly unconstitutional, as they violate the fundamental right to a dignified minimum standard of living guaranteed by Article 1 Paragraph 1 of the Basic Law (GG) in conjunction with Article 20 Paragraph 1 GG, and contravene the general principle of equality. The legislature failed to conduct the necessary investigations to guarantee the fundamental right to benefits under Sections 3, 3a Paragraph 1 No. 2b, and Paragraph 2 No. 2b of the Asylum Seekers' Benefits Act (AsylbLG). Instead, as the explanatory memorandum to the law shows, it merely considers cost-saving and synergy effects, such as those found in couples' households, to be possible and reasonable. Unlike partners who support each other, single individuals living in accommodation cannot be expected to consider cost-saving measures. Therefore, the very assumption of shared finances among the residents is incorrect. There are no differences in their needs compared to single adult benefit recipients under Section 2 of the Asylum Seekers' Benefits Act who live in an apartment as defined in Section 8 Paragraph 1 Sentence 2 of the Standard Needs Assessment Act, or to single adult benefit recipients under Book XII of the German Social Code (SGB XII) who live in accommodation. Despite their identical need for assistance, the legislature is treating these groups more favorably than him. This unequal treatment is not justified. Meanwhile, a number of courts have expressed concerns about the constitutionality of granting benefits at level 2 in cases where individuals living in communal accommodations are receiving benefits under Sections 2 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) (see, for example, Social Court Landshut, decision of October 24, 2019 – S 11 AY 64/19 ER; Social Court Freiburg, decision of December 3, 2019 – S 9 AY 4605/19 ER; Social Court Munich, notice of January 31, 2020 – S 42 AY 4/20 ER; Social Court Hanover, decision of December 20, 2019 – S 53 AY 107/19 ER; Social Court Leipzig, decision of January 8, 2020 – S 10 AY 40/19 ER; Saxony Higher Social Court, decision of March 23, 2020 – L 8 AY 4/20 B ER; Social Court Kassel, Judgment of November 19, 2020 – S 12 AY 22/20; Social Court Marburg, Order of December 31, 2020 – S 9 AY 1/20; Social Court Frankfurt, Decision of January 14, 2020 – S 30 AY 26/19 ER; Social Court Dresden, Decision of February 4, 2020 – S 20 AY 86/19 ER; Higher Social Court of Hesse, Decision of April 13, 2021 – L 4 AY 3/21 B ER).
The Federal Constitutional Court also declared the reduction in the benefit rate for single asylum seekers in collective accommodations, as provided for in Section 2 Paragraph 1 Sentence 4 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG), unconstitutional and ruled that, until new regulations are enacted, the standard benefit for single persons in collective accommodations must be determined according to level 1 (reference to the decision of October 19, 2022 – 1 BvL 3/21). Sections 3, 3a Paragraph 1 No. 2b, and Paragraph 2 No. 2b of the AsylbLG must be interpreted restrictively in light of the Federal Constitutional Court's decision (reference to the Bavarian State Social Court's decision of May 31, 2023 – L 8 AY 7/23). He, too, should therefore be granted benefits according to level 1. Since his constitutionally guaranteed minimum subsistence level is not secured, grounds for an injunction must be assumed.
To further substantiate his application, the applicant submits decisions of the Social Court of Heilbronn dated 05.03.2024 – S 16 AY 395/24 ER, of the Social Court of Stuttgart dated 29.02.2024 – S 11 AY 551/24 ER, of the Social Court of Halle dated 28.02.2024 – S 17 AY 1/24 ER – and of the Social Court of Speyer dated 11.04.2024 – S 15 AY 3/24 ER –.
The applicant requests that
the respondent be ordered, by way of an interim injunction, to grant him provisionally and subject to the right of recovery until a final and binding decision is reached on the objection of 20 February 2024 against the actual provision of benefits by the respondent, taking into account the legal opinion of the court, the requested benefits in the constitutionally compliant amount at standard benefit level 1 from 28 February 2024.
The respondent requests that
the application be rejected.
In support of his position, he argues that
he does not share the applicant's arguments regarding the unconstitutionality of Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG). The decision of the Federal Constitutional Court (BVerfG) of October 19, 2022 – 1 BvL 3/21 – cannot have any effect in favor of the applicant. The Federal Constitutional Court declared Section 2 Paragraph 1 Sentence 4 No. 1 of the AsylbLG unconstitutional, but the applicant does not belong to the group of persons entitled to benefits under this provision. Rather, he receives benefits under Sections 3 and 3a of the AsylbLG, and the Federal Constitutional Court's decision does not have the force of law with respect to the scope of application of these provisions. Despite the Federal Constitutional Court's decision, the legislature has not seen any need to enact a different legal regulation to date. Since the administration lacks the power to declare a legal provision unconstitutional, Section 3a Paragraph 1 No. 2b and Paragraph 2 No. 2b of the AsylbLG continue to apply in principle. The decisions submitted by the applicant are not binding in the present proceedings, as they are exclusively first-instance judgments from social courts in other federal states. Furthermore, no comparable case exists. The submitted decisions concern accommodation in a municipal communal facility, which differs fundamentally from accommodation in a reception center. The necessary needs for food, accommodation, heating, clothing, healthcare, and household goods, which are covered by in-kind benefits in a reception center, are far more extensive than in a municipal communal facility. Significant differences also exist between the two types of accommodation with regard to the necessary personal needs, which are the sole determining factor.
The necessary personal needs of asylum seekers staying in reception centers are to be met through in-kind benefits (§ 3 para. 2 AsylbLG). For the sake of simplicity, these needs are paid out as pocket money without further differentiation as to whether the needs are already partially met through in-kind benefits. In contrast, in municipal communal accommodations, the necessary personal needs are to be provided as a cash benefit. The subsistence level and the existential needs of residents in reception centers are more comprehensively met through in-kind benefits, with the consequence that standard benefit level 1 does not apply. For this reason, it is also irrelevant whether the residents of a facility manage their resources collectively and whether synergy effects occur. Standard benefit level 1 cannot therefore be used as a basis for granting benefits to the applicant. The recommendation of the Federal Ministry of Labor and Social Affairs (BMAS) to apply the provisions of Section 2 Paragraph 1 Sentence 4 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG) issued by the Federal Constitutional Court (BVerfG) on October 19, 2022, also in the cases of Section 3a Paragraph 1 No. 2b and Paragraph 2 No. 2b of the AsylbLG (letter dated January 23, 2023), and the circular resolution 04/2023 of the Conference of Ministers of Labor and Social Affairs, which states that the BMAS recommendation can be followed, are not binding for administrative practice in Rhineland-Palatinate.
There is also no ground for issuing an order. The amount in question is €20 more per month, which does not pose a threat to the applicant's livelihood, as the majority of benefits are provided in kind.
With the application for an interim injunction, the applicant, submitting a declaration of his personal and financial circumstances, requested the granting of legal aid and the appointment of lawyer Sven Adam, Göttingen.
For further details of the facts and the legal arguments, reference is made to the case file, the administrative file submitted by the respondent, and the files of the BAMF and the Trier city administration – immigration office.
II.
The application for an interim injunction is admissible and well-founded.
According to Section 86b Paragraph 2 Sentence 2 of the Social Courts Act (SGG), a preliminary injunction to regulate a provisional state of affairs with regard to a disputed legal relationship is permissible if such regulation appears necessary, particularly in the case of ongoing legal relationships, to avert substantial disadvantages, to prevent imminent violence, or for other reasons. For this to be the case, it must be credibly demonstrated that the applicant's asserted right against the respondent exists (claim for an injunction) and that the applicant would suffer substantial disadvantages without the issuance of the requested preliminary injunction (ground for an injunction). The purpose of Section 86b Paragraph 2 SGG is to prevent irreparable administrative decisions and thus final circumstances that can no longer be corrected by the courts, by means of the instrument of preliminary legal protection regulated therein. Accordingly, a preliminary injunction can only be obtained before a court decision on the merits if, without the requested injunction, the applicant would suffer serious and unreasonable disadvantages that cannot be averted in any other way and that cannot be remedied by the subsequent decision on the merits. Furthermore, success on the merits must be probable, and the preliminary injunction must not render the case moot or preempt its outcome. Therefore, if the examination conducted in the expedited proceedings already reveals that the right asserted by the applicant does not exist in their favor, a preliminary injunction is not possible under Section 86b Paragraph 2 of the Social Court Act (SGG), because a legally secure and worthy legal position is lacking. Both the sufficiently high probability of a claim for an injunction and the grounds for the injunction must be substantiated, Section 86b Paragraph 2 Sentence 4 SGG in conjunction with Sections 920 Paragraph 2 and 294 Paragraph 1 of the Code of Civil Procedure (ZPO).
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 –, juris), success in the main proceedings is highly probable. If a claim brought in the main proceedings is manifestly inadmissible or unfounded, the issuance of a preliminary injunction must be rejected due to the lack of a claim for such an injunction. Conversely, if the prospects of success in the main proceedings are uncertain, the grounds for an injunction become decisive.
Based on this, the court is convinced that both a claim for an injunction and grounds for such an injunction exist. The applicant is entitled to higher benefits.
According to Section 3 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG), those entitled to benefits under Section 1 receive benefits to cover their needs for food, accommodation, heating, clothing, healthcare, and household goods and consumables (essential needs). In addition, according to Section 3 Paragraph 1 Sentence 2 of the AsylbLG, they are granted benefits to cover their personal needs of daily life (essential personal needs). If the essential personal needs are fully covered by cash benefits, they amount to a monthly sum according to Section 3a Paragraph 1 of the AsylbLG, as amended by the Announcement on the Amount of Benefit Rates pursuant to Section 3a Paragraph 4 of the Asylum Seekers' Benefits Act for the period from January 1, 2024, dated October 19, 2023 (Federal Law Gazette 2023 I No. 288)
- For adult benefit recipients who live in a dwelling within the meaning of Section 8 Paragraph 1 Sentence 2 of the Standard Needs Assessment Act and for whom neither Number 2 Letter a nor Number 3 Letter a applies, as well as for young benefit recipients who do not live in a dwelling with at least one parent, 204 euros each
- For adult benefit recipients, €184 each if they
a) live in an apartment within the meaning of Section 8 of the Standard Needs Assessment Act with a spouse or civil partner or in a marriage-like or civil partnership-like relationship with a partner,
b) do not live in an apartment because they are accommodated in a reception facility within the meaning of Section 44 Paragraph 1 of the Asylum Act or in communal accommodation within the meaning of Section 53 Paragraph 1 of the Asylum Act or not only temporarily in comparable other accommodation;…….
The applicant, who holds a residence permit under the Asylum Act, belongs to the group of persons entitled to benefits pursuant to Section 1 Paragraph 1 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG). He is also in need of assistance (cf. Section 7 Paragraph 1 Sentence 1 AsylbLG), because, as he declared in his statement regarding his personal and financial circumstances for the granting of legal aid – the respondent did not conduct an inquiry into his income and assets – he has no income or assets.
The court is convinced that the applicant is also entitled to the necessary personal needs allowance at issue here, according to needs level 1 pursuant to Section 3a Paragraph 1 Number 1 of the Asylum Seekers' Benefits Act (AsylbLG), even though he is accommodated in a reception center and thus fulfills the substantive requirements of Section 3a Paragraph 1 Number 2b of the AsylbLG. This provision raises significant constitutional concerns in light of the decision of the Federal Constitutional Court (BVerfG) of October 19, 2022 – 1 BvL 3/21. The Federal Constitutional Court ruled with regard to the parallel provision in Section 2 Paragraph 1 Sentence 4 of the AsylbLG that the provision for benefits at needs level 2 for a single adult accommodated in collective accommodation is incompatible with Article 1 Paragraph 1 of the Basic Law (GG) in conjunction with Article 20 Paragraph 1 of the Basic Law (GG). The legislator's assumption that it is possible and reasonable for benefit recipients to utilize the opportunities for shared living arrangements offered in the accommodations, and that the resulting savings should be considered when calculating their subsistence needs, is, in principle, constitutionally sound under the principle of subsidiarity. However, a blanket reduction in subsistence benefits can only be based on such an obligation if the conditions actually exist in the communal accommodations for fulfilling this obligation and thus achieving actual savings. The blanket reduction, however, is not based on sufficiently robust empirical evidence that the behavior of those affected could actually reduce their needs to this extent. The assumption that those affected form a "community of fate" is insufficient. Based on the available evidence, it cannot be assumed that those affected generally have sufficiently reliable opportunities to reduce their expenditures for subsistence needs through shared living arrangements with fellow residents to the extent assumed by the legislator. The blanket reduction of the standard benefit rate pursuant to Section 2 Paragraph 1 Sentence 4 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG) is, considering its design, not entirely appropriate (Federal Constitutional Court, decision of October 19, 2022 – 1 BvL 3/21 –, juris). The Federal Constitutional Court has ordered a transitional provision according to which single adults who are accommodated in communal accommodation or in a reception center are granted a standard benefit rate at the level of standard benefit rate 1, provided the conditions of Section 2 Paragraph 1 Sentences 1 and 4 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG) are met.
The considerations and explanations of the Federal Constitutional Court must, in the opinion of the adjudicating court, apply all the more to a reduction of the necessary personal needs allowance for single persons in collective accommodations and reception centers. With regard to this allowance, the potential for savings in communal accommodation is logically far smaller and can only be realized in close relationships. Here, too, there is no sufficient basis for comparison with the situation of couples, nor for the assumption of (actual) savings effects and a lower allowance based on this. The mere fact of living together in communal accommodation or a reception center is insufficient to prove or justify the assumption of savings. Section 3a Paragraph 1 No. 2b of the Asylum Seekers' Benefits Act (AsylbLG) must therefore be interpreted in conformity with the constitution, and, by way of a norm-preserving teleological reduction, an actual "mutual support" must be read into the provision as an unwritten prerequisite. The court expressly concurs with the legal opinion of the Bavarian State Social Court (judgments of October 30, 2023 – L 8 AY 33/23, of May 31, 2023 – L 8 AY 7/23, of April 29, 2021 – L 8 AY 122/20, all available on juris). Section 3a Paragraph 1 No. 2b of the Asylum Seekers' Benefits Act (AsylbLG) therefore only applies if an actual "mutual support" as described in Section 3a Paragraph 1 No. 2a AsylbLG can be established. This is not the case here. There is no evidence that the applicant is in a relationship of "mutual support" with another person in the reception facility that would allow for shared financial management.
To the extent that the respondent does not wish to draw any significant conclusions from the Federal Constitutional Court's decision for the present proceedings because the circumstances differ substantially due to the accommodation in collective housing rather than, as in the present case, in a reception center, this distinction is unconvincing. In Section 3a of the Asylum Seekers' Benefits Act (AsylbLG), the legislator does not differentiate between collective housing and reception centers with regard to the amount of cash benefits to be granted; rather, it treats them equally. The argument that needs are more comprehensively met in reception centers than in collective housing is equally unconvincing. Section 3 of the AsylbLG distinguishes between necessary needs (paragraph 1) and necessary personal needs (paragraph 2). If the latter are not provided as benefits in kind but as cash benefits, the amount is determined according to Section 3a of the AsylbLG; the law does not provide for hybrid forms. Regardless of the fact that the respondent has not specified which of the needs falling under the necessary personal requirements are actually met in the AfA in the form of a benefit in kind, the law does not provide for a reduction of the amount of money to be granted in the event of alternative coverage of the needs.
Because of the obvious existence of a claim for an injunction, grounds for an injunction also exist. The applicant, who regularly collects the funds, clearly needs them to cover his personal expenses. The 10% of the benefit amount in question is also quite relevant in light of the total benefit claim.
The decision on costs follows from the corresponding application of Section 193 Paragraph 1 Sentence 1 of the Social Court Act (SGG).
III.
Legal aid is granted pursuant to Section 73a of the Social Court Act (SGG) and Sections 114 et seq. of the Code of Civil Procedure (ZPO) because, as previously explained, the application for a preliminary injunction in the matter has sufficient prospects of success and the applicant, taking into account the information provided in the declaration of personal and financial circumstances, cannot raise the necessary funds to conduct the litigation himself. Attorney Sven Adam is appointed 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), with the proviso that no further costs will be incurred as a result of his appointment (Section 121 Paragraph 3 of the Code of Civil Procedure (ZPO)).
This decision granting legal aid is final and not subject to appeal by the parties – Section 73a Paragraph 1 of the Social Court Act (SGG) in conjunction with Section 127 Paragraph 2 of the Code of Civil Procedure (ZPO). However, it can be appealed by the public treasury within three months of the pronouncement of the decision (Section 127 Paragraph 3 ZPO).
The following is information on legal remedies.
