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 31st Chamber of the Social Court of Magdeburg decided on May 7, 2024, through its presiding judge, Judge xxx of the Social Court:
The suspensive effect of the applicant's action with file number S 31 AY 15/24 against the decision of 16.01.2024 in the form of the objection decision of 05.02.2024 and of 22.02.2024 is ordered.
Furthermore, the application is rejected.
The respondent shall reimburse the applicant for ¾ of his extrajudicial costs.
REASONS
I.
The parties are arguing in preliminary legal proceedings about the legality of a continuing restriction of benefits pursuant to Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG).
According to his own statement, the applicant first entered the Federal Republic of Germany from Italy in 2015 and submitted an asylum application in June 2017. By decision dated December 18, 2016, the Federal Office for Migration and Refugees (BAMF) rejected the asylum application as inadmissible and, on June 22, 2017, submitted a transfer request to Italy under the Dublin III Regulation. On April 19, 2018, the Federal Office was informed of the deportation to Italy.
On December 4, 2018, the applicant submitted a subsequent asylum application, which the Federal Office for Migration and Refugees (BAMF) rejected as inadmissible in a decision dated February 5, 2021. The applicant holds a temporary suspension of deportation and has been subject to an enforceable deportation order since March 17, 2021.
The applicant first received basic benefits from the respondent on June 22, 2020 (the day of his assignment to the respondent) pursuant to Sections 3, 3a Paragraphs 1 and 2 of the Asylum Seekers' Benefits Act (AsylbLG) at the level of standard benefit rate 2. He is housed in communal accommodation. In his application, he stated that he holds the nationality of Guinea-Bissau. Most recently, the applicant received full basic benefits from January 2021 onwards, as per the decision dated January 19, 2021.
The respondent's immigration office repeatedly requested the applicant (including on February 14, 2022) to cooperate in obtaining identity documents, to submit certificates, documents, and data carriers relevant to determining his nationality, and to provide evidence of efforts to establish his identity. At a hearing regarding the planned reduction of benefits under Section 1a of the Asylum Seekers' Benefits Act (AsylbLG), the applicant stated in person that he did not possess any documents and would not make any effort to obtain them. On September 5, 2022, the applicant participated in a group hearing conducted by delegates from the Guinea-Bissau embassy. The applicant's stated nationality of Guinea-Bissau could not be confirmed. It was suspected that the applicant held Gambian nationality.
In October 2023, the applicant submitted an extract from the birth register in Bajul (Gambia) dated March 8, 2010. The person listed therein, with a birth date of xx.xx.19xx, is given the name "xxx" and contains personal details different from those previously provided by the applicant. The Federal Police in Magdeburg informed the applicant on November 15, 2023, that the document could not be evaluated. The respondent informed the applicant of this and, on November 27, 2023, requested that he obtain a Gambian passport.
By decision dated September 27, 2021, the respondent reduced the applicant's benefits for the first time due to a lack of cooperation in obtaining a passport for the period from September 22, 2021, to October 19, 2021. For the subsequent periods, the respondent reduced the benefits under the Asylum Seekers' Benefits Act (AsylbLG) for the same reason, pursuant to Section 1a of the AsylbLG. Furthermore, by decision dated October 10, 2022, the respondent reduced the benefits for the period from September 2022 to March 2023 pursuant to Section 1a, Paragraph 3 of the AsylbLG. Following a hearing on June 8, 2023, the respondent again reduced the applicant's benefits pursuant to Section 1a, Paragraph 3 of the AsylbLG for the period from June 23, 2023, to December 22, 2023, due to a lack of cooperation in obtaining a passport. The applicant filed an objection by letter dated October 17, 2023, which was decided by a decision on the objection dated February 5, 2024. This is the subject of the pending legal proceedings under file number S 31 AY 17/24 and the proceedings for preliminary injunction under file number S 31 AY 69/23 ER.
The applicant filed an objection on January 12, 2024, against the granting of benefits starting on December 23, 2023. He stated that no written decision had been issued. He also objected to the continued reduction of benefits pursuant to Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG). Furthermore, he argued that the administrative act of January 19, 2021, had not been revoked. By decision on the objection dated February 5, 2023 (presumably February 5, 2024), the respondent rejected the objection. The reasoning of the decision indicates that the respondent considered the letter of January 12, 2024, as the grounds for the objection against the decision of July 28, 2023. The applicant then filed a lawsuit against the decision on the objection of February 5, 2023, with the court hearing the case (file number S 31 AY 15/24).
By decision dated January 16, 2024, the respondent granted the applicant benefits pursuant to Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) from December 23, 2023, to June 22, 2024. The decision also stipulated that the decision of January 19, 2021, was revoked with effect from September 22, 2021. The applicant filed an objection to the decision of January 16, 2024, on January 18, 2024. He argued that the retroactive revocation of the original decisions was unlawful. In its decision on the objection dated February 22, 2023 (presumably meant 2024), the respondent stated that the objection of January 18, 2024, against the provisions under point 1 of the decision of January 16, 2024, regarding the revocation of, among other things, the decision of January 19, 2021, was justified. The decision of January 19, 2021, was legally binding, and a revocation of the aforementioned decisions was not necessary, especially since the decisions had been issued for a previous period and the effect contained in the decision of January 16, 2024, no longer applied.
On January 18, 2024, the applicant also filed an application for preliminary legal protection with the Magdeburg Social Court (SG), seeking the reinstatement of the suspensive effect of his objection and the granting of benefits under the Asylum Seekers' Benefits Act (AsylbLG) at the statutory rate. He argues that the restrictions on entitlement under Section 1a of the AsylbLG are unconstitutional, in accordance with the Federal Constitutional Court's decision of November 5, 2019, regarding sanctions under Book II of the German Social Code (SGB II). The applicant claims that he has been receiving only reduced benefits under Section 1a of the AsylbLG for years. He asserts that such a long-term reduction in benefits is not constitutionally justifiable. He concurs with the jurisprudence of the Saxony State Social Court (LSG) in its decision of February 22, 2021, case number L 8 AY 9/20 B ER.
The applicant essentially requests
that the suspensive effect of the applicant's action of 27 February 2024, file number S 31 AY 15/24, against the respondent's decision of 16 January 2024, as amended by the objection decision of 5 February 2024, be reinstated, and that the respondent be ordered by way of preliminary injunction to grant the applicant, provisionally and subject to the right of recovery, the requested benefits in the statutory amount from the date of receipt of this application by the court, taking into account the legal opinion of the court, until a final and binding decision is reached on the applicant's action, file number S 31 AY 15/24.
The respondent requests that
the application be dismissed.
The respondent argues that the applicant has been repeatedly informed of his obligation to cooperate and the consequences of failing to do so. He has shown no signs of taking any steps to obtain identity documents. The applicant is not taking any initiative to clarify his identity. The evidence he has submitted is not assessable and therefore cannot be used to establish his identity. This is a contributing factor to the current lack of clarity regarding his identity and the impossibility of taking measures to terminate his stay. Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) does not raise any constitutional concerns. The applicant has not presented any special circumstances related to his needs that would preclude a further reduction in benefits. The decision of January 19, 2021, was revoked by the respondent's decision of January 16, 2024. Furthermore, the applicant was informed during the hearing regarding the benefit reduction that he would only receive limited benefits in the future. This statement effectively revoked the ongoing administrative act concerning the granting of benefits pursuant to Section 3 of the Asylum Seekers' Benefits Act (AsylbLG). The revocation of the permanent administrative act was effectively also effected through implied conduct. The applicant could not have had any doubt that he would no longer receive benefits under Section 3 of the Asylum Seekers' Benefits Act (AsylbLG).
The reduction of benefits over an extended period was not objectionable. The applicant was sufficiently aware of the consequences of failing to cooperate. The law does not preclude a subsequent reduction in benefits. A different interpretation would contradict the intent of the law, because then those entitled to benefits would only need to fail to fulfill their obligations for a sufficient period to receive benefits again under Section 3 of the AsylbLG.
For further details of the parties' submissions and the facts of the case, reference is made to the administrative files and the respondent's immigration file, as well as the other pending proceedings S 31 AY 68/23 ER, S 31 AY 17/24, S 31 AY 15/24 and S 31 AY 19/24, which were the subject of the decision-making process.
II.
The application for preliminary legal protection is admissible and well-founded.
The decision of 16 January 2024 is clearly unlawful and the applicant's rights have been violated.
Based on the interpretation of the application, the subject matter of the present preliminary injunction proceedings is the ordering (and not the reinstatement, see below) of the suspensive effect (originally of the objections of January 12, 2024, and January 18, 2024, and now) of the action S 31 AY 15/24 against the decision of January 16, 2024. The court is not bound by the applicant's written application (§ 123 SGG). However, his request is expressed with sufficient clarity.
Pursuant to Section 86b Paragraph 1 Sentence 1 of the Social Court Act (SGG), the court of first instance may, upon application, 1. order immediate enforcement in whole or in part in cases where an objection or appeal has suspensive effect, 2. order suspensive effect in whole or in part in cases where an objection or appeal does not have suspensive effect, 3. reinstate immediate enforcement in whole or in part in the cases of Section 86a Paragraph 3.
In the present case, the applicant's action does not have suspensive effect within the meaning of Section 86a Paragraph 1 of the Social Court Act (SGG), as an exception applies under Section 86a Paragraph 2 Number 4 of the SGG in conjunction with Section 11 Paragraph 4 Number 2 of the Asylum Seekers' Benefits Act (AsylbLG). According to Section 11 Paragraph 4 Number 2 of the AsylbLG, objections and appeals against administrative acts that establish a restriction of the entitlement to benefits pursuant to Section 1a of the AsylbLG do not have suspensive effect.
If the legal remedy (as in this case) does not have suspensive effect, the court may, upon application pursuant to Section 86b Paragraph 1 Sentence 1 No. 2 of the Social Court Act (SGG), order the suspensive effect of the objection. Regarding the applicable standard of review, the following applies: If the administrative act is manifestly unlawful and the affected party's subjective rights are violated by it, there is no public interest in its enforcement, so the suspensive effect is ordered. In these cases, unlike decisions pursuant to Section 86b Paragraph 2 SGG, no special urgency (ground for the order) is required. Furthermore, a decision granting the application has retrospective effect; the suspensive effect thus extends to the entire period of validity of the challenged administrative act (see Richter in: Schlegel/Voelzke, jurisPK-SGG, 1st ed. 2017, Section 86a SGG, marginal note 25, with further references). If, however, the administrative act in question is clearly lawful and the action against it is therefore hopeless, the suspension of its effect will not be ordered. If the prospects of success cannot be assessed, a general balancing of interests must be undertaken, taking into account the degree of likelihood of success in the main proceedings: the greater the prospects of success, the lower the requirements for the applicant's interest in suspension. Conversely, the requirements for the prospects of success are lower the more severe the effect of the administrative measure. The consequences that would ensue if the preliminary injunction were not issued, but the action were later successful, must be weighed against the disadvantages that would arise if the requested preliminary injunction were issued, but the action were ultimately unsuccessful (see Keller in: Meyer-Ladewig/Keller/Schmidt, SGG, 14th ed., § 86b, para. 12f with further references).
If, as in the present case, full benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) have previously been granted for the "sanction period" by means of a continuing administrative act, then, in addition to determining the restriction of entitlement under Section 1a AsylbLG, the previous grant decision must also be corrected for the duration of the determined restriction of benefits (State Social Court [LSG] Baden-Württemberg, Judgment of June 2, 2022 – L 7 AY 82/20 –, para. 37, juris). The decision of January 19, 2021, provides for the granting of basic benefits from January 2021 without a time limit and therefore, in principle, continues to apply during the period in dispute here.
Contrary to the respondent's view, the court is not convinced that the grant notice of January 19, 2021, was revoked. In this respect, the respondent successfully remedied the objection of January 18, 2024, which was directed against the retroactive revocation of the grant notice of January 19, 2021, by addressing the provision under point 1 of the notice of January 16, 2024. The order in the objection decision of February 22, 2023 (presumably meant February 22, 2024) cannot be interpreted otherwise, as the reasoning in the objection decision also states that a revocation of the notice of January 19, 2021, was not necessary.
Contrary to the respondent's assertion, the decision of January 19, 2021, was not already effectively revoked by implied conduct. The mere fact that the decisions regarding the benefit reductions contradict the previous legally binding approval cannot be interpreted as an implied revocation of the previous approval (Pattar in jurisPK-SGB X, 2nd ed. 2017 [as of December 1, 2017], § 33 SGB X, para. 21 with further references). Otherwise, the correction provisions of §§ 45 and 48 SGB X would be obsolete.
After all this, the suspensive effect of the action with file number S 31 AY
15/24 to be ordered.
2. However, the applicant has no right to the issuance of a preliminary injunction. In this regard, the applicant has not explained what he specifically seeks with the requested preliminary injunction. Even if this could be determined through (benevolent) interpretation, any potential claim for an injunction would lack the necessary grounds.
Pursuant to Section 86b Paragraph 2 of the Social Court 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 state of affairs would hinder or substantially prevent the applicant from exercising their rights. 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 of the 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 performance 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 only provisional period to be regulated within the framework of an interim injunction would at most be the period from the date of receipt of the application by the court, i.e., January 18, 2024, until the end of the restricted period, June 22, 2024. The applicant has not asserted any existing existential emergency, nor is such an emergency apparent – certainly not after the order granting suspensive effect.
The decision on costs is based on a corresponding application of Section 193 of the Social Court Act (SGG) and takes into account the outcome of the proceedings.
The following is information on legal remedies.
