VERDICT
S 27 AY 165/21
In the legal dispute
xxx,
– Plaintiff –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
Göttingen District,
represented by the District Administrator,
Reinhäuser Landstraße 4, 37083 Göttingen
– Defendant –
The 27th Chamber of the Social Court of Hildesheim, in the oral proceedings of August 27, 2024, with Judge xxx of the Social Court and Lay Judges xxx and xxx presiding, has ruled as follows:
The defendant is ordered, by amending the decision of November 23, 2021, as amended by the appeal decision of December 16, 2021, as amended by all subsequent amending decisions, to grant and retroactively pay the plaintiff benefits pursuant to Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) for the period from December 2021 up to and including May 2022.
The defendant must reimburse the plaintiff for the necessary extrajudicial costs.
FACTS
The dispute concerns the entitlement to so-called analogous benefits under Section 2 AsylbLG in the period from December 2021 up to and including May 2022.
The plaintiff, born in Luhansk, Ukraine, on [date redacted] 1998, was within the local and subject-matter jurisdiction of the defendant during the period in question. She first entered the territory of the Federal Republic of Germany on May 28, 2015, together with her mother. Prior to this, she and her mother had spent several months with her mother's friends in Moscow after leaving Ukraine. Since the mother stated that she held a Soviet passport and had permanent residency rights for herself and her daughter in Ukraine, the plaintiff's Russian citizenship was recorded upon entry. In the ongoing asylum proceedings, the plaintiff's mother stated that she had no citizenship. Her ethnicity was recorded as Armenian, and her religious affiliation as Armenian Catholic. The plaintiff's asylum application was definitively rejected on June 12, 2019.
By letter dated August 13, 2019, the defendant requested the plaintiff to submit her passport or equivalent travel documents. He reiterated this request in a letter dated October 27, 2020.
By decision dated November 23, 2021, the defendant granted the plaintiff benefits under the Asylum Seekers' Benefits Act (AsylbLG) for the period from December 2021 to May 2022 inclusive, taking into account a reduction pursuant to Section 1a Paragraph 3 of the AsylbLG. The plaintiff was found to be failing to comply with her obligations to cooperate. She had not submitted a national passport or provided proof of her application by means of a corresponding certificate from the consulate or embassy. She had therefore unlawfully extended the duration of her stay. The plaintiff filed an objection to this decision on December 7, 2021. The defendant rejected the objection by decision dated December 16, 2021.
The plaintiff filed a lawsuit against this decision by letter dated December 21, 2021, which was received by the Hildesheim Social Court on December 23, 2021. She maintains that she has fully complied with her duty to cooperate. She has no means of applying for a national passport because she possesses no documents that could prove her identity. She is also unable to produce such documents. The birth certificate she had was confiscated by smugglers upon her entry into the Federal Republic of Germany. She has no other documents. She cannot obtain any such documents from relatives. She has had no contact with her father for many years. She has visited the embassies of the Russian Federation, Ukraine, Iran, and Azerbaijan. She has not received confirmation of citizenship from any of these countries. Rather, she was always turned away without success due to the lack of identification documents. She attempted to obtain a birth certificate in Ukraine through a lawyer she trusts. This effort was unsuccessful. She was told that no records of her birth existed. Therefore, she had no way to prove her identity and thus obtain a national passport or equivalent travel document. All her options had been exhausted. She had always provided truthful information. She had never misrepresented her identity. She had never possessed an identity card or similar identification documents.
The plaintiff requests
that the defendant, by amending the decision of November 23, 2021 as modified by the appeal decision of December 16, 2021, be ordered to grant and retroactively pay the plaintiff benefits pursuant to Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) for the period from December 2021 up to and including May 2022.
The defendant requests
that the action be dismissed.
He is of the opinion that the plaintiff has not sufficiently fulfilled her duty to cooperate. He refers, on the one hand, to the decisions of the Göttingen Administrative Court, the Lüneburg Higher Administrative Court, and the Lower Saxony-Bremen State Social Court. These courts had determined that the plaintiff had failed to meet her obligations. It is not credible that the plaintiff never possessed identity documents. She resided in Ukraine from her birth until 2015 and, according to her mother, had permanent residency there. She attended school there and lived a normal life. This means that she must have possessed identity documents, at least in the past. She entered the Russian Federation from Ukraine and stayed in Moscow for several months. She should have had identification papers for this as well.
REASONS FOR DECISION
The action, as a combined action for annulment, performance, and enforcement pursuant to Section 54, paragraphs 1 and 4 of the Social Court Act (SGG), is admissible and well-founded. The contested administrative act is unlawful and infringes the plaintiff's rights insofar as she was not granted analogous benefits during the period in dispute.
According to Section 2 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG), and in deviation from Sections 3 and 4 as well as 6-7, the Social Code Book XII (SGB XII) and Part 2 of the Social Code Book IX (SGB IX) shall apply accordingly to those beneficiaries who have been residing in the federal territory for 36 months without significant interruption and have not abusively influenced the duration of their stay.
In the present case, the Chamber can leave open the question of whether Section 2 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) is to be applied in the version valid until February 26, 2024, or in the currently valid version, because the plaintiff has been residing in the federal territory for at least 36 months without significant interruption during the period in dispute and has not abusively influenced the duration of her stay.
The concept of abuse of rights comprises an objective component (the elements of the abuse) and a subjective component (culpability). This is based on the idea that no one may invoke a legal position that they themselves have obtained in bad faith. Objectively, abuse of rights presupposes dishonest conduct disapproved of by the legal system. Accordingly, a foreigner should be excluded from analogous benefits if the benefit provided for in Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) would otherwise have been acquired unlawfully or immorally. Given the punitive nature of Section 2 AsylbLG, not just any conduct that is in any way reprehensible is sufficient. The nature, extent, and consequences of the breach of duty must be so serious for the foreigner that the breach itself must also be given considerable weight within the framework of the principle of proportionality. Therefore, only conduct that is inexcusable (socially unacceptable) when considering the individual case, the specific situation of a foreigner in the Federal Republic of Germany and the specific characteristics of the Asylum Seekers' Benefits Act (AsylbLG), leads to the exclusion of analogous benefits (Federal Social Court, judgment of June 17, 2008, B 8/9b AY 1/07 R, para. 32 f, cited according to juris).
Measured against this standard, the plaintiff cannot be accused of such socially unacceptable behavior, which is disapproved of by the legal system.
The plaintiff, in the Chamber's opinion and taking into account the specific circumstances of the case, made sufficient efforts to clarify her nationality and obtain a national passport. The Chamber first notes that the plaintiff did not misrepresent her identity by providing false information regarding her name, date of birth, or place of birth. The plaintiff consistently provided the same personal information. The Chamber is convinced that at least the plaintiff assumes this information to be truthful.
The court, aware of the existing case law and after evaluating the arguments, is convinced that the plaintiff has nevertheless done everything reasonably possible to obtain identity documents. In its letters from 2019 and 2020, the immigration authority failed to identify any specific efforts the plaintiff could undertake to procure sufficient identity documents for the defendant. It consistently refers generally to the need for a passport. The fact that the plaintiff must first possess documents that would make the issuance of a national passport seem possible is not taken into account. No specific requests are made to the plaintiff in this regard. Regarding the procurement of documents proving her identity, the court sees no further reasonable cooperation required of the plaintiff. The plaintiff contacted registry offices in Ukraine through a lawyer she trusted. There, she was informed that no records of her birth existed and therefore a birth certificate could not be issued. The information provided each time also included a check in the central civil registry of Ukraine. The court does not find it implausible that the plaintiff did not possess, or currently does not possess, identity documents. The defendant is correct in assuming that registration in Ukraine must have taken place, since the plaintiff and her mother had permanent residence permits for Ukraine. Whether and to what extent relevant documents were archived in the 1990s is doubtful. If the plaintiff's birth was not even recorded in Ukraine, it is unlikely that a permanent residence permit for her was recorded in the files. The court is also convinced that documents were not strictly necessary for crossing the border from Ukraine into the Russian Federation in 2015. Given the situation in eastern Ukraine, especially in the Luhansk and Donetsk regions, strict border controls would have been unlikely. The court is further convinced that if a person enters a country without identification documents, they can remain there for some time even without passports. Considering the political situation of the Russian Federation, the court finds such a scenario conceivable and not impossible. Furthermore, it must be taken into account that the plaintiff entered the Federal Republic of Germany with her mother without identification documents. If travel from Moscow to the Federal Republic of Germany, and thus transit through several member states of the European Union, is possible, then crossing a border in a politically sensitive region whose national affiliation is disputed is not inconceivable.
The Chamber is further convinced that all available means of cooperation had already been exhausted during the period in question or had no prospect of success. Taking into account the fighting in Luhansk and the surrounding regions, the difficult political situation, and the annexation by the Russian Federation, which was being pursued and subsequently carried out at that time, the Chamber considers it impossible that the plaintiff could have obtained any usable information regarding a birth certificate, or even the birth certificate itself, in 2020.
The court merely adds that it is also convinced that the plaintiff's conduct is not reprehensible with regard to extending her stay. The court is convinced that the plaintiff does not know which specific agencies to contact to obtain the identity documents requested by the defendant. The fact that the plaintiff has now contacted the embassies of Iran and Azerbaijan illustrates this. The court is convinced that the plaintiff did not do this to feign cooperation, but simply because she does not know where else to turn.
The plaintiff is therefore entitled to analogous benefits. Consequently, the reduction of benefits under Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) was also unlawful. The legal entitlement to the granting of the benefit implies the entitlement to payment.
The decision on costs is based on Section 193 Paragraph 1 of the Social Court Act (SGG) and is based on the outcome of the proceedings.
The following is information on legal remedies.
