DECISION
in the proceedings
xxx,
– Applicant –
Legal representative:
Attorney Sven Adam
, Lange-Geismar-Str. 55, 37073 Göttingen
against
Ludwigsburg District,
represented by the Ludwigsburg District Office, Asylum Department,
Hindenburgstr. 40, 71638 Ludwigsburg
– Respondent –
The 16th Chamber of the Social Court of Heilbronn
on April 29, 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 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) from March 22, 2024 until a final and binding decision is reached on the objection of March 22, 2024 against the decision of February 29, 2024, but no later than August 31, 2024, taking into account benefits already received.
The respondent must reimburse the applicant's extrajudicial costs.
REASONS
I.
The applicant is an Afghan national who first entered Germany on September 30, 2021, and submitted an asylum application, which is still pending. The applicant had previously applied for protected status in Norway in 2015, which was rejected. The applicant provided contradictory information regarding his date of birth and reasons for fleeing, both in Norway and during his hearing with the Federal Office for Migration and Refugees (BAMF).
Since his entry, the applicant has received benefits under the Asylum Seekers' Benefits Act; the approval pursuant to Sections 1, 3 et seq. of the Asylum Seekers' Benefits Act was granted by the respondent's decision of November 25, 2021.
By letter dated November 22, 2021, the Norwegian Directorate of Immigration rejected the applicant's request for admission.
The immigration authority did not respond to the respondent's inquiries as to whether the applicant had exhibited abusive conduct within the meaning of Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG).
By decision dated February 29, 2024, the respondent rejected an application by the applicant dated October 12, 2023 – which is not found in the respondent's file – for benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG). The applicant had misrepresented his age and thus violated the general obligations to cooperate under Section 15 of the Asylum Act (AsylG).
By decision dated March 13, 2024, the respondent amended the decision dated November 25, 2021 for the months of January to March 2024, due to assessable income.
The applicant, through his authorized representative, lodged an objection against the decision of February 29, 2024.
At the same time, he filed an application for a preliminary injunction with the Heilbronn Social Court. He argued that the waiting period stipulated in Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) had long since expired and that the applicant's length of stay had not been deliberately manipulated. Therefore, he maintained that he was entitled to benefits under Section 2 of the AsylbLG.
The applicant's representative requests that
the respondent be ordered, by way of an interim injunction, to grant the applicant the requested benefits in the statutory amount from the date of receipt of this application by the court, provisionally and subject to the right of recovery, until a final and binding decision is reached on the applicant's objection of March 22, 2024, against the respondent's decision of February 29, 2024, taking into account the legal opinion of the court.
The respondent requests that
the application be rejected.
The applicant violated his obligations to cooperate and report under the Asylum Act and the Residence Act. He provided false information about his identity, for example, by giving his date of birth as xxx in the currently ongoing asylum proceedings. Furthermore, contrary to his obligations under Section 15 of the Asylum Act, he initially failed to disclose that he had already been in Norway and undergone asylum proceedings there. He only admitted this after it was proven by EURODAC hits from December 8, 2015 (fingerprints). The Federal Office for Migration and Refugees (BAMF) has not yet decided on deportation, neither regarding the country of destination nor on a possible right of residence. The proceedings could also determine that another country is suitable for his admission. Therefore, it is currently unclear whether the applicant could have been deported at any point during the entire period since the abuse of rights occurred.
For further details, reference is made to the court file and the administrative file of the respondent.
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-SGG, 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 be rejected in principle, irrespective 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 benefits pursuant to Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) by way of an interim injunction, since such a claim exists with a high degree of probability.
According to Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) (as amended on August 15, 2019), the Twelfth Book of the Social Code (SGB XII) applies accordingly to those benefit recipients who have resided in Germany for 18 months without significant interruption and have not abused their rights to influence the duration of their stay. The applicant has already been in Germany for 18 months since March 2023. The applicant has also not abused his rights to influence the duration of his stay. While the court is convinced that he repeatedly misrepresented aspects of his identity, namely his date of birth, an abuse of rights is only considered to have occurred if, from a generally abstract perspective, the abusive conduct can typically extend the duration of stay, unless any obligation of the foreigner in question to leave the country could not have been enforced during the entire period from the point of abuse of rights regardless of his conduct (Federal Social Court, Judgment of February 2, 2010, B 8 AY 1/08 R). The court also assumes that the applicant's deliberately false statements regarding his date of birth constitute an abuse of rights. This is the case when the applicant provides false or inconsistent information about himself (see Saxon State Social Court, decision of January 19, 2011, L 7 AY 6/09 B ER). However, the applicant's obligation to leave the country could not have been enforced from the time of his entry. The applicant is an Afghan national. The court is convinced of this, as both the applicant himself and the respondent in his written submission of March 25, 2024, have stated this. Furthermore, the Norwegian authorities, the Federal Office for Migration and Refugees (BAMF), and the immigration authorities have no doubt about his Afghan nationality, as evidenced by the letters from the Norwegian authorities contained in the administrative file, the BAMF hearing transcript, and the extract from the Central Register of Foreigners. In addition, the hearing at the BAMF took place in Dari, the language spoken in Afghanistan.
Deportation to Afghanistan was not possible from the time of the applicant's entry, as the applicant himself admitted in his letter of April 24, 2024.
There is no evidence whatsoever to support the respondent's claim that deportation to a country other than Afghanistan would have been possible. This also seems rather unlikely, given that a search with Eurodac yielded only one match in Norway, which, however, refused to accept the deportation. Deportation to another country also appears impossible in light of the Return Directive (Directive 2008/115/EC) (see Freiburg Administrative Court, judgment of November 11, 2020 – A 1 K 6531/18, with further references).
The applicant's claim is not precluded by the fact that Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) in its current version requires a residence period of 36 months, which the applicant has not yet reached. While the legislator created a transitional provision in Section 20 of the AsylbLG, according to which Section 2 of this Act, as promulgated on August 5, 1997 (Federal Law Gazette I p. 2022), most recently amended by Article 4 of the Act of May 23, 2022 (Federal Law Gazette I p. 760), continues to apply to beneficiaries who received benefits pursuant to Section 2 Paragraph 1 up to February 26, 2024, the applicant did not receive any benefits until February 26, 2024. However, he submitted a corresponding application as early as October 2023, and the respondent should have granted him benefits under Section 2 Paragraph 1 of the AsylbLG at least since that date. Since he has a retroactive claim to analogous benefits for the period up to and including February 26, 2024, which was unlawfully denied to him, retroactive payment must first be granted for this past benefit period, even after February 27, 2024. Through this retroactive grant, he also "receives benefits up to February 26, 2024" pursuant to Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) in its former version. Consequently, he is also entitled to analogous benefits for the period from February 27, 2024 onwards, pursuant to Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Section 20 of the Asylum Seekers' Benefits Act (AsylbLG) (see Filges in: Schlegel/Voelzke, jurisPK-SGB XII, 3rd edition, Section 20 AsylbLG (as of March 8, 2024), marginal note 14).
Because of the overwhelming likelihood of success in the main proceedings, there is also a ground for an injunction (see LSG Lower Saxony-Bremen, decision of 29.6.2023, L 8 AY 18/23 B ER).
The cost consequences result from the corresponding application of Section 193 of the Social Court Act (SGG).
The following is information on legal remedies.
