DECISION
In the legal dispute
xxx,
Legal representative:
Attorney Sven Adam, Lange Geismarstraße 55, 37073 Göttingen
– Applicant –
against
Altmarkkreis Salzwedel, represented by the District Administrator,
Karl-Marx-Straße 32, 29410 Salzwedel
– Respondent –
The 25th Chamber of the Social Court of Magdeburg decided on April 26, 2024, through its presiding judge, Judge xxx of the Social Court:
The respondent is ordered by way of preliminary injunction to grant the applicant benefits in accordance with Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) at standard benefit level 1, provisionally and subject to the right of recovery, from April 12, 2024, until a final decision is reached on the applicant's objection of April 11, 2024, against the decision of March 22, 2024, but no later than September 30, 2024.
The respondent shall bear the applicant's extrajudicial costs.
The application for legal aid with the appointment of legal representative Sven Adam is rejected.
REASONS
I.
The parties are in dispute over the granting of benefits under the Asylum Seekers' Benefits Act (AsylbLG), in particular over the granting of benefits under standard benefit level 1.
The applicant entered the Federal Republic of Germany on October 19, 2022, and applied for asylum. He stated that he was a Syrian national.
The applicant was assigned to the respondent for accommodation and, by decision dated January 5, 2023, was granted basic benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) from January 9, 2023, until further notice (in the amount of €127.23 in January and €369.00 per month from February 2023). The applicant currently lives in communal accommodation within the meaning of Section 53 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG).
On April 3, 2023, the responsible immigration authority informed the applicant that, with the finality of a decision by the Federal Office for Migration and Refugees (BAMF) dated February 27, 2023, regarding an asylum application, the applicant's residence permit had expired on March 11, 2023, pursuant to Section 67 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylG). In a decision dated the same day, the BAMF ordered the applicant's deportation to Italy and determined that no grounds for prohibition of deportation existed. Simultaneously, the authority stated that the conditions of Section 1a Paragraph 7 of the Asylum Seekers' Benefits Act (AsylbLG) might apply, as a deportation order had been issued in the state responsible for conducting the asylum procedure.
Following a hearing, the respondent withdrew the decision to grant benefits pursuant to Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) dated January 5, 2023, with effect from May 5, 2023, and granted the plaintiff benefits pursuant to Section 1a Paragraph 7 of the Asylum Seekers' Benefits Act (decision dated May 8, 2023).
By letter from his lawyer dated August 14, 2023, the applicant requested a review of the decisions of January 5, 2023 and May 8, 2023 pursuant to Section 44 of the Tenth Book of the Social Code (SGB X).
After the competent immigration authority, in a status notification dated August 30, 2023, had indicated the termination of the Dublin procedure and the transition to a national procedure, the respondent revoked the decision of May 8, 2023, with effect from August 30, 2023, and again granted the applicant benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) at the level of standard benefit rate 2 (amended decision dated September 4, 2023). Grounds for a reduction of benefits pursuant to Section 1a, paragraph 7 of the AsylbLG no longer existed. The subsequent application for preliminary legal protection filed with the Social Court (SG) Magdeburg for the granting of benefits pursuant to Sections 3 and 3a of the AsylbLG at standard benefit rate 1 was successful (S 31 AY 62/23 ER). The applicant was granted benefits in accordance with Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) at standard benefit level 1 until March 30, 2024 at the latest.
By decision dated March 22, 2024, the respondent granted the applicant benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) in the amount of standard benefit level 2 for the period beginning March 31, 2024. The applicant filed an objection to this decision by letter from his attorney dated April 11, 2024. The objection has not yet been decided.
At the same time, by letter dated April 11, 2024, received the following day, the applicant filed an application for preliminary legal protection with the court and requested the granting of benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) at standard benefit level 1. The applicant argued that the provisions of Sections 3 and 3a, paragraph 1, no. 2b, and paragraph 2, no. 2b of the AsylbLG were manifestly unconstitutional, as they violated 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 welfare principle of Article 20, paragraph 1 of the Basic Law (GG), and contravened the general principle of equality. In addition to numerous first-instance decisions by social courts in preliminary injunction proceedings, he also referred to the decision of the Federal Constitutional Court (BVerfG) of October 19, 2022, published on November 23, 2022, under file number 1 BvL 3/21. In that decision, the BVerfG declared Section 2 Paragraph 1 Sentence 4 Number 1 of the Asylum Seekers' Benefits Act (AsylbLG) incompatible with Article 1 Paragraph 1 of the Basic Law (GG) in conjunction with the social welfare principle enshrined in Article 20 Paragraph 1 GG, insofar as a single adult is only granted a standard allowance at the level of standard allowance level 2. The BVerfG's decision is also applicable to the provisions of Section 3a Paragraph 1 Number 2b and Section 3a Paragraph 2 Number 2b of the Asylum Seekers' Benefits Act (AsylbLG).
The applicant requests that
the respondent be ordered, by way of an interim injunction, to grant the applicant, provisionally and subject to the right of recovery, the requested benefits in the constitutionally compliant amount at standard benefit level 1 from the date of receipt of this application by the court, until a final and binding decision is reached on the objection of 11 April 2024 against the respondent's decision of 22 March 2024, taking into account the legal opinion of the court.
The respondent requests that
the application be dismissed.
The respondent argues that there is no entitlement to higher benefits. For individuals living in communal accommodations, the provision of benefits for necessary personal needs and other necessary expenses is based on standard benefit level 2 according to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG). No other legal provision exists. An analogous application of the Federal Constitutional Court's decision under file number 1 BvL 3/21 is unknown and has not been ordered by the supervisory authority. Meanwhile, the Ministry of the Interior and Sport of the State of Saxony-Anhalt decided by decree of March 29, 2023, that the Federal Constitutional Court's decision of October 19, 2022, is not applicable to beneficiaries of benefits under Sections 3 and 3a of the AsylbLG. A similar regulatory concept does not alter the fact that the Federal Constitutional Court's decision does not apply to beneficiaries of benefits under Sections 3 and 3a of the AsylbLG. The statutory regulation remains in effect. The administration is bound by applicable law. She has no authority to reject norms.
For further details of the parties' submissions and the facts of the case, reference is made to the administrative files of the respondent and the court file, which were the subject of the decision-making process.
II.
The application for preliminary legal protection is admissible and well-founded.
1. Pursuant to Section 86b Paragraph 2 of the Social Courts Act (SGG), the court may issue a preliminary injunction concerning the subject matter of the dispute if there is a risk that a change in the existing situation would hinder or substantially prevent the applicant from exercising a right. 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. According to Section 86b Paragraph 2 Sentence 4 SGG in conjunction with Section 920 Paragraph 2 of the Code of Civil Procedure (ZPO), the prerequisite for issuing a preliminary injunction is the demonstration of both a claim for an injunction (i.e., a substantive claim for benefits in the main proceedings) and grounds for an injunction (i.e., the urgency of the regulation to avert substantial disadvantages). A claim for an injunction and grounds for an injunction are deemed credible if their factual prerequisites exist with a high degree of probability (cf. Keller in: Meyer-Ladewig/Keller/Leitherer/Schmidt, SGG, 13th edition 2020, § 86b para. 41).
The more serious the threatened violation of fundamental rights and the higher the probability of its occurrence, the more intensive the factual and legal analysis of the matter must be, even in preliminary injunction proceedings. If a clarification of the factual and legal situation commensurate with the threatened violation of fundamental rights is not possible in expedited proceedings—for example, because it would require further factual investigations that cannot be carried out within the short time available—a decision may be made based on a balancing of interests (Federal Constitutional Court).<BVerfG> , Decision of 14 March 2019 – 1 BvR 169/19 – juris Rn. 15 with further references).
The Chamber is convinced that the applicant has credibly demonstrated a claim to an injunction.
The applicant lives in communal accommodation within the meaning of Section 53 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) and indisputably receives benefits under Sections 3 and 3a of the AsylbLG. However, in light of the decision of the Federal Constitutional Court (BVerfG) of October 19, 2022, he is entitled to these benefits to the extent of standard benefit level 1. In its decision of October 19, 2022 – 1 BvL 3/21 – published on November 23, 2022, the Federal Constitutional Court ruled that special benefit level 2 for a single adult housed in communal accommodation, as provided for in the parallel provision of Section 2 Paragraph 1 Sentence 4 No. 1 of the AsylbLG, is incompatible with the Basic Law (Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1 of the Basic Law) (fundamental right to a dignified minimum standard of living). The legislator's assumption that it is possible and reasonable for those entitled to benefits to utilize the opportunities for shared resources offered in accommodations, and the consideration of the resulting savings when calculating their subsistence needs (see BT-Drs. 19/10052, pp. 24 et seq.), is, in principle, not objectionable under constitutional law according to the principle of subsidiarity. However, this obligation to share resources is only proportionate in the narrower sense if it is sufficiently ensured that the conditions for fulfilling these conditions and thus achieving corresponding savings actually exist in the communal accommodations. For this to be the case, there must be explicit indications of such conditions in the context of shared accommodation (§ 53 AsylG) or reception facilities (§ 44 AsylG) (see BVerfG of October 19, 2022 – 1 BvL 3/21 – juris para. 74 et seq.).
The Federal Constitutional Court has ordered a transitional arrangement according to which, for single adults who are housed in communal accommodation, a standard allowance in the amount of standard allowance level 1 instead of 2 is recognized under the conditions of Section 2 Paragraph 1 Sentence 1 and Sentence 4 No. 1 AsylbLG.
The Chamber is convinced that this reasoning of the Federal Constitutional Court also applies to the parallel provisions for benefit recipients in collective accommodations under Section 3a of the Asylum Seekers' Benefits Act (AsylbLG), since it is highly probable that Section 3a Paragraph 1 No. 2b AsylbLG and Section 3a Paragraph 2 No. 2b AsylbLG are also unconstitutional (see Frerichs in: Schlegel/Voelzke, jurisPK-SGB XII, 3rd ed., Section 3a AsylbLG (as of November 28, 2022), para. 44_18; Lower Saxony-Bremen Higher Social Court, decision of June 29, 2023, L 8 AY 18/23 B ER, juris para. 10). The situations are comparable, as there is no evidence that actual savings are regularly achieved or could be achieved through shared resources in the collective accommodations. Therefore, there is a high probability of success in the main proceedings.
The Federal Government, through the Federal Ministry of Labour and Social Affairs (BMAS), already informed the Working Group on Migration and Refugee Issues on November 24, 2022, that the Federal Constitutional Court's ruling should also be applied to the granting of basic benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) (Plenary Protocol 20/72, p. 8440). The reasoning underlying the unconstitutionality of the provision—namely, that there is no credible evidence that savings are regularly achieved or can be achieved in collective accommodations through shared resources that would justify a 10% reduction in benefits—is of a fundamental nature. The BMAS therefore assumes that the ruling also applies to the parallel provisions in Section 3a, paragraph 1, number 2, and paragraph 2, number 2, of the Asylum Seekers' Benefits Act (AsylbLG) for benefits within the basic benefit system. Individual states (e.g., Berlin) have already stipulated that in the future, all single adults entitled to benefits under the Asylum Seekers' Benefits Act (AsylbLG) who are housed in communal accommodation, a reception center, or, if applicable, emergency accommodation, are entitled to the standard benefit rate or the standard benefit level for single adults according to standard benefit level 1, provided they do not live as young adults in their parents' household (regardless of the type of accommodation) (see, for example, the circular from the Berlin Senate Department for Integration, Labour and Social Affairs, Soz No. 01/2023, on the implementation of Sections 2 and 3, 3a of the Asylum Seekers' Benefits Act (AsylbLG)).
Furthermore, grounds for an injunction exist. Given the prevailing prospects of success in the main proceedings, as outlined above, and with reference to the decision of the Federal Constitutional Court of 19 October 2022, a restrictive jurisprudence in preliminary legal protection, focused on demonstrating urgency, is not warranted (Frerichs, loc. cit., para. 44.19; Higher Social Court of Celle-Bremen, decision of 29 June 2023, L 8 AY 18/23 B ER).
The Chamber deemed it appropriate to limit the regulatory order to the period up to September 30, 2024.
2. The decision on costs is based on a corresponding application of Section 193 of the Social Court Act (SGG).
3. The application for legal aid was to be rejected.
According to Section 73a Paragraph 1 Sentence 1 of the Social Courts Act (SGG) in conjunction with Section 114 Sentence 1 of the Code of Civil Procedure (ZPO), the granting of legal aid requires that the applicant, based on his personal and economic circumstances, is unable to bear the costs of the legal proceedings in whole, in part or in installments, and that the intended legal action offers sufficient prospects of success and does not appear frivolous.
Due to the decision regarding the reimbursement of necessary extrajudicial costs, the applicant has a legally enforceable claim for reimbursement of costs against the respondent. Therefore, the applicant possesses assets within the meaning of Section 115 Paragraph 3 Sentence 1 of the German Code of Civil Procedure (ZPO), and is thus not indigent within the meaning of the law (cf. in this regard the decision of the Higher Social Court of Saxony-Anhalt of December 17, 2008 – L 5 B 414/07 AS – cited in Juris; similarly, in effect, the decision of the Higher Social Court of Thuringia of October 20, 2014 – L 4 AS 1070/14 B ER – and the decision of February 13, 2012 – L 4 AS 1197/12 B –, according to which the need for legal protection for the granting of legal aid ceased due to the existence of a claim for reimbursement of costs). Based on the court's decision on costs pursuant to Section 193 Paragraph 1 of the Social Court Act (SGG), the applicant is entitled to reimbursement of necessary extrajudicial costs, which, according to Section 193 Paragraphs 2 and 3 of the SGG, also include the costs of their legal representative. Granting legal aid would result in double compensation for their legal representative. Due to the court-ordered obligation to reimburse costs, there is no doubt as to the respondent's ability or willingness to pay.
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