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 July 3, 2024 in Heilbronn
through Judge xxx of the Social Court
without oral proceedings:
The respondent is ordered by way of an interim injunction to grant the applicant benefits pursuant to Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) provisionally from June 7, 2024 to November 30, 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 is an Afghan national who first entered Germany on February 24, 2022, and submitted an asylum application, which is still pending. The applicant had previously applied for protected status in Slovenia. The applicant provided conflicting information regarding his date of birth.
Since his entry into Germany, the applicant has received benefits under the Asylum Seekers' Benefits Act (AsylbLG). The approval, pursuant to Sections 1, 3 et seq. of the AsylbLG, was granted by the respondent in a decision dated July 4, 2022. In this decision, the respondent granted the applicant the actual costs of the assigned accommodation as well as benefits according to the respective standard benefit level 2. By a decision dated February 28, 2024, the respondent amended the decision of July 4, 2022, for the months of January and February 2024, because an overpayment had occurred for January 2024 due to a delayed notification of employment, and the applicant's wages also had to be taken into account for February 2024. Otherwise, i.e., from March 2024 onwards, the decision of July 4, 2022, remained in effect.
The applicant, through his authorized representative, filed an objection on April 5, 2024, against the decision of February 28, 2024, also arguing that he was entitled to benefits pursuant to Section 2 of the Asylum Seekers' Benefits Act (AsylblG). He maintained that the objection was not time-barred because the instructions on legal remedies were incomplete.
The application for preliminary legal protection filed by the applicant with the Heilbronn Social Court on April 7, 2024 (S 16 AY 733/24 ER) was unsuccessful because, with regard to the application of April 5, 2024, there was no need for legal protection at that time. The appeal against this decision was also unsuccessful (L 7 AY 1388/24 ER-B).
On June 7, 2024, the applicant, through his authorized representative, filed an application for a preliminary injunction with the Heilbronn Social Court. The applicant 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 duration of his stay had not been deliberately manipulated. Therefore, he asserted 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 preliminary 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 April 5, 2024, against the respondent's decision of February 28, 2024 (file no.: 3345.921821), taking into account the legal opinion of the court.
The respondent requests that
the application be rejected.
Essentially, he points out that the decision of February 28, 2024, is already legally binding, as the objection was inadmissible because the objection period was not observed.
The respondent rejected the objection with a decision dated June 28, 2024, stating that the objection was inadmissible because it was filed too late.
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 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 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.
It is initially irrelevant whether the decision of February 28, 2024, has become legally binding or not. With the decision of February 28, 2024, the respondent amended the decision of July 4, 2022, for the months of January and February 2024; this did not constitute a rejection of benefits pursuant to Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) for the period claimed in these expedited proceedings. Rather, the respondent has still not made a decision regarding the granting of benefits pursuant to Section 2 Paragraph 1 of the AsylbLG.
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 August 2023. The applicant has also not abused his rights to influence the duration of his stay. While the court is convinced that he misrepresented aspects of his identity, namely his date of birth, an abuse of rights is only considered to have been influenced 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. This is already evident from the respondent's submissions.
Deportation to Afghanistan was not possible from the time of the applicant's entry, as it had already been suspended by the Federal Ministry of the Interior and Community at that time and remains suspended to this day.
There is no evidence whatsoever to suggest that deportation to a country other than Afghanistan would have been possible.
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 up to that date. However, he should have been granted benefits under Section 2 Paragraph 1 of the AsylbLG as early as August 2023. 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).
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).
The following is information on legal remedies.
