DECISION
In the appeal proceedings
xxx,
Applicant and complainant,
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
State of Hesse, represented by the Gießen Regional Council
– Initial Reception Center of the State of Hesse –,
Lilienthalstraße 2, 35394 Gießen,
Respondent and respondent in the appeal,
The 4th Senate of the Hessian State Social Court in Darmstadt decided on November 11, 2024, through the presiding judge of the State Social Court xxx, the judge of the State Social Court xxx and the judge of the State Social Court xxx:
Upon the applicant's appeal, the decision of the Darmstadt Social Court of June 26, 2024 is amended and the suspensive effect of the objection against the respondent's decision of October 19, 2023 is ordered, insofar as the decision of March 9, 2023 was thereby also revoked for the period from November 25, 2023 to March 31, 2024.
Furthermore, the application is rejected and the appeal dismissed.
The respondent must reimburse the applicant for 5/6 of his necessary extrajudicial costs in both instances. No other costs are to be reimbursed.
The applicant is granted legal aid without installment payments for the appeal proceedings with the appointment of lawyer Sven Adam, Lange Geismarstraße 55, 37073 Göttingen.
REASONS
I.
The parties are in dispute over the order for the suspensive effect of an objection regarding a decision by the respondent that restricts the benefits granted to the applicant.
The applicant, born on January 1, 19xx, is an Afghan national and first entered Germany on February 9, 2023. After expressing his asylum application, the applicant was admitted to the initial reception center of the state of Hesse on February 23, 2023. By decision dated March 9, 2023, the applicant was granted benefits to secure his livelihood under the Asylum Seekers' Benefits Act (AsylbLG) in the form of basic benefits pursuant to Sections 3 and 3a of the AsylbLG "until further notice".
Following the rejection of the applicant's asylum application as inadmissible by the Federal Office for Migration and Refugees on May 2, 2023, and the issuance of a deportation order to Austria, enforceable since May 23, 2023, the central immigration authority of the Gießen Regional Council, responsible for the applicant, issued a so-called night-time order on June 15, 2023, which was served on the applicant on June 26, 2023. This order obligates the applicant to comply with reporting requirements for any stays outside his assigned room or apartment between midnight and 6:00 a.m., Monday through Friday. Reference is made to the night-time order of June 5, 2023, pages 47 et seq. of the respondent's immigration file.
On August 21, 2023, the central immigration authority informed the respondent's benefits department that a planned deportation order against the applicant, scheduled for the same day, had failed. Despite the night-time order, the applicant could not be found at his accommodation between 5:00 and 5:10 a.m. There were no indications of his whereabouts. The applicant logged into the initial reception center (EAE) every one to two days, but only for short periods ranging from a few minutes to three hours, most recently on August 20, 2023, from 5:16 p.m. to 7:14 p.m. Consequently, the suspension of deportation (tolerated stay) was extended until at least June 29, 2024, with the stipulation that "tolerated stay expires upon informal notification of the deportation date.".
During the subsequent hearing, the applicant stated that he had been staying with friends at the time of the attempted deportation. He explained that he had taken painkillers due to severe toothache and pain throughout his body, and that under the influence of these medications and physical exhaustion, he had been unable to enter his room.
By decision of the respondent dated October 19, 2023, served on the applicant on October 24, 2023, the benefits granted to the applicant were reduced "with immediate effect" to benefits to cover the applicant's needs for food and accommodation, including heating, personal hygiene, and healthcare, thereby revoking the grant decision of March 9, 2023. These benefits would be provided in kind. The reduction amounted to €182.00, the amount granted to the applicant by the decision of March 9, 2023, consisting of a cash payment of €159.00 and a public transport ticket provided as a benefit in kind, valued at €23.00. The benefit reduction was initially limited to a period of six months in this decision. The respondent stated in this decision that the measures to terminate the applicant's residence could not be carried out for reasons attributable to the applicant. Only if special circumstances exist in an individual case could he also be granted other benefits within the meaning of Section 3 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) (clothing) upon application. The decision included the following instructions on legal remedies: "An objection to this decision may be lodged with the Gießen Regional Council within one month of notification. The objection must be submitted in writing, electronically, or recorded at the Gießen Regional Council. It must be received by the Regional Council within the deadline. If the objection is lodged electronically, the electronic document must be qualifiedly electronically signed or sent as a De-Mail in accordance with Section 5 Paragraph 5 of the De-Mail Act. A simple email is not sufficient."
On December 4, 2023, the applicant initiated preliminary legal proceedings before the Darmstadt Social Court, most recently requesting the reinstatement of the suspensive effect of his objection. On December 6, 2023, he filed an objection to the decision of October 19, 2023. On December 19, 2023, he stated that the letter of objection should be considered a request for review. On February 5, 2024, he again filed an objection to the decision of October 19, 2023, or rather, maintained his objection. He argued that the instructions on legal remedies were incomplete, specifically that they lacked information on the possibility of filing an objection via the electronic legal communication system (EGVP). He maintained that he had resided continuously in the communal accommodation and that the reduction in benefits was unconstitutional. By decision dated May 14, 2024, the respondent again granted benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) in the amount of standard benefit level 1, effective April 1, 2024, until further notice. The applicant subsequently declared the proceedings concluded for the period beginning April 1, 2024. By decision on the objection dated May 29, 2024, the respondent rejected the objection of February 5, 2024, as inadmissible. The applicant filed a lawsuit against this decision with the Darmstadt Social Court on June 3, 2024 (Case No.: S 16 AY 49/24).
The applicant stated that he had not been outside his assigned accommodation at any of the times stipulated in the night-time order. The reduction notice was therefore unlawful. Furthermore, the instructions on legal remedies in the respondent's decision of October 19, 2023, were flawed; the undoubtedly opened EGVP mailbox was not mentioned in the instructions, meaning that the objection of December 6, 2023, was not time-barred. An electronic submission form also existed on the respondent's website, about which the applicant had likewise not been informed. According to a suggestion from the Darmstadt Administrative Court, the transfer deadline to Austria had likely expired. He remains in the initial reception center.
The respondent argued that the instructions on legal remedies in the decision of October 19, 2023, were properly provided. The objection was received only after the objection period had expired and was therefore inadmissible. Substantively, the applicant had fulfilled the criteria for benefit reduction outlined in the decision of October 19, 2023. At the time of the unsuccessful deportation order on August 21, 2023, the applicant had not only left his assigned accommodation. Rather, according to the documents on file, he had been entirely outside the initial reception center of the State of Hesse from August 20, 2023, and had not re-entered it until August 22, 2023. According to the respondent's investigations, the applicant was largely not residing in the communal accommodation to which he had been assigned. The Central Immigration Authority had informed the respondent that the deportation proceedings would not be waived. However, no further attempt has yet been made, as the matter is proving difficult due to the applicant's frequent absence. The eighteen-month transfer period stipulated in Article 29(2), second sentence, of Regulation (EU) 604/2013 applies and expires on 8 October 2024.
By decision of June 26, 2024, the Social Court rejected the application for preliminary legal protection. In its reasoning, it stated that the application should be interpreted as an application for an order suspending the effect of the objection to the respondent's decision of October 19, 2023. The application, as thus understood, was admissible. The decision of October 19, 2023, had initially established a restriction of benefits pursuant to Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) and had partially revoked the previous grant decision of March 9, 2023, which had granted benefits pursuant to Sections 3 and 3a of the AsylbLG until further notice – and thus without time limitation – thereby implementing the previously established restriction of benefits. In both cases, the suspensive effect of the objection and the action was waived pursuant to Section 11 Paragraph 4 of the AsylbLG, so that both were immediately enforceable administrative acts. The admissibility of this application is not precluded by the finality of the decision of October 19, 2023. The Chamber considers the instructions on legal remedies in the decision of October 19, 2023, to be incomplete for the purposes of the present decision in the preliminary injunction proceedings, and deems the one-month deadline insufficient. The one-year preclusive period of Section 66 Paragraph 2 of the Social Court Act (SGG) applies in this case. The instructions on legal remedies in the decision of October 19, 2023, lack the specific designation of an email address through which a legally compliant objection can be filed electronically.
The application is unfounded. The public interest in the immediate enforcement of the contested decision of October 19, 2023, outweighs the applicant's private interest in initially being spared the enforcement of the partial revocation decision and the restriction of benefits. The respondent's decision of October 19, 2023, is found to be lawful based on the summary examination of the facts required in these preliminary legal proceedings, and its enforcement is urgent due to statutory provisions. The legal bases for the partial revocation of the indefinite grant decision of March 9, 2023, and the determination of a restriction of benefits are Section 9 Paragraph 4 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Section 48 Paragraph 1 Sentence 1 of the Tenth Book of the Social Code – Social Administrative Procedure and Social Data Protection – (SGB X) and Section 1a Paragraph 3 Sentence 1 of the AsylbLG. The applicant is entitled to benefits under Section 1 Paragraph 1 Number 4 of the Asylum Seekers' Benefits Act (AsylbLG). After his asylum procedure was concluded and the deportation order issued by the Federal Office for Migration and Refugees (decision of May 8, 2023) became enforceable, he is subject to enforceable deportation no later than May 23, 2023, within the meaning of Sections 50 Paragraph 1, 58 Paragraph 2, and 59 of the Residence Act (AufenthG). Insofar as the applicant was granted a temporary suspension of deportation (Duldung) valid until September 9, 2023, pursuant to Section 60a of the Residence Act (AufenthG), this is decisive for determining the applicant's entitlement to benefits. However, this temporary suspension of deportation, which is subject to the condition subsequent of expiry upon informal notification of a deportation date, does not preclude the legality of the deportation measure. Therefore, the provisions of Sections 44 to 50 of the German Social Code, Book X (SGB X), are applicable via Section 9 Paragraph 4 Number 1 of the Asylum Seekers' Benefits Act (AsylbLG). The applicant was granted benefits under the Asylum Seekers' Benefits Act (AsylbLG) by means of an administrative act with continuing effect on March 9, 2023, pursuant to Section 48 Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X). Subsequently, a change occurred in the factual and legal circumstances that existed at the time of the aforementioned benefit grant. This includes, firstly, the commencement of an enforceable obligation to leave the country. Furthermore, due to the legally binding night-time order issued by the respondent's Central Immigration Authority, the applicant was required to report his absence between midnight and 6:00 a.m. from Monday to Friday. The applicant violated this order, as he was not found at his accommodation, specifically in his room to which the night-time order referred, between 5:00 a.m. and 5:10 a.m. on August 21, 2023, during a deportation measure, and had not left any notification of his whereabouts. It is evident that the applicant was aware of his obligation to report his absence and failed to comply. The applicant's claim of being generally present in the initial reception center is insufficient to comply with the night-time order. The required single cause is present. As a legal consequence, the aforementioned provision mandates a reduction of the benefit entitlement to the extent regulated in Section 1a Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG). Due to the fulfillment of the conditions of Section 1a Paragraph 3 of the AsylbLG, a significant change within the meaning of Section 48 Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X) has occurred, which obligates the respondent to revoke the previously granted benefits due to the legal consequences of Section 1a Paragraph 3 of the AsylbLG. The respondent was therefore correct in granting benefits only to the extent regulated in Section 1a Paragraph 1 of the AsylbLG, by maintaining only this portion of the previous benefit payment. This scope of benefits was correctly calculated in accordance with the regulations set forth in the decision of October 19, 2023. The Chamber concurs, in principle, with the jurisprudence of the Hessian State Social Court (decision of February 20, 2020 – L 4 AY 14/19 ER). It is therefore incumbent upon the person entitled to benefits to assert individual needs separately during the period of benefit restriction, needs which would otherwise be covered by a lump sum payment under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG). However, the Chamber cannot establish the existence of such needs with the necessary degree of certainty in the applicant's case. Insofar as the Hessian State Social Court, in the aforementioned decision, essentially assumes, in a generalized manner, that even in the case of a departure only imminent in the medium term, needs for transportation and communication must be assumed for organizing the departure, the Chamber sees no basis for this in the applicant's case, who has neither stated nor otherwise indicated that he intends to leave Germany. On the contrary, the fact that the applicant is not complying with his obligations to establish residence and to report absences speaks against this intention. Furthermore, there is no discernible need for communication, because, according to the reasonably foreseeable course of events, the applicant's departure to Austria will occur through deportation and thus not directly at his own expense. Since the applicant is not being returned to his country of origin, but only to Austria, it is also unclear why there should be any need for communication.
The applicant filed an appeal on July 12, 2024, against the decision served on June 28, 2024. On August 21, 2024, the applicant was assigned to the city of Frankfurt am Main.
The applicant, submitting a sworn affidavit dated June 20, 2024, asserts that he resided and was present at the initial reception center during the period in question, from December 6, 2023, to March 31, 2024. He finds it perplexing that a sworn affidavit is required in this regard, given that the initial reception center has an electronic recording system for attendance times. He maintains that there has been no breach of the duty to cooperate as defined in Section 1a of the Asylum Seekers' Benefits Act (AsylbLG). The respondent's immigration authority was continuously aware of his whereabouts. Furthermore, this was the first time he was not found at the new initial reception center, so that, due to his relocation and the unclear regulations regarding the night-time restrictions, it cannot be considered that he was absconding. According to the case file, no further efforts regarding deportation have been undertaken since the failed deportation attempt in August 2023 – and thus also during the period in dispute here. Instead, the suspension of the deportation was ordered on September 12, 2023, and this was communicated to the respondent for informational purposes.
Section 1a, paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) is unconstitutional. On the one hand, the sanction lacks the (studies-supported) suitability, necessity, and proportionality in relation to the alleged duty to cooperate that is the subject of the sanction. The sanction is not suitable for achieving its objective – ensuring the individual's presence at the time of the attempted deportation – because the attempted deportation has already failed. Furthermore, no studies exist showing that a sanction under Section 1a, paragraph 3 of the AsylbLG leads to compliance with a night-time order for any further deportation attempts. Such studies would also contradict reality. The sanction is imposed precisely because of the first alleged violation of a night-time order and is imposed for a period of – as in this case – six months. For the purposes of Section 1a, paragraph 3 of the AsylbLG, it is irrelevant whether the sanctioned person is in their room every night for the following six months after the sanction is served. The sanction remains in effect solely as a punishment for the first alleged violation. The person affected by the sanction under Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) in the case of a (merely) alleged violation of a night-time order has no further possibility of averting the sanction through their own conduct or creating the conditions to receive full benefits. Unlike "actual" violations of the duty to cooperate, such as refusing to obtain a passport, they cannot rectify the violation of the alleged duty to be present or make up for the lack of cooperation. Even continued residence in a room does not lead to the sanction being lifted. Therefore, a violation of a night-time order cannot, in substance, constitute a violation of the duty to cooperate within the meaning of Section 1a Paragraph 3 of the AsylbLG. The allegedly abusive behavior ends at the latest when the sanctioned person re-enters their own room. They remain in the initial reception center and continue to reside in their room.
The provision in Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) is clearly unconstitutional, as it violates 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 GG. According to Section 1a Paragraph 1 Sentence 1 of the AsylbLG in its current version, those affected by a restriction of benefits are not entitled to benefits under Sections 2, 3, and 6 of the AsylbLG. They only receive benefits to cover their needs for food and accommodation, including heating, as well as personal hygiene and healthcare (Section 1a Paragraph 1 Sentence 2 AsylbLG). Only if special circumstances exist in an individual case can they also be granted other benefits within the meaning of Section 3 Paragraph 1 Sentence 1 AsylbLG (Section 1a Paragraph 1 Sentence 3 AsylbLG). Benefits to cover personal needs of daily life within the meaning of Section 3 Paragraph 1 Sentence 2 AsylbLG (so-called necessary personal needs) are therefore necessarily excluded and are not granted. Section 1a, paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) in its current version contains precisely that generalizing restriction according to which socio-cultural needs are generally considered dispensable, which, according to the jurisprudence of the Federal Constitutional Court, is incompatible with constitutional requirements. Benefits to cover the socio-cultural subsistence minimum are excluded from the outset under Section 1a, paragraph 1 of the AsylbLG.
The applicant requests:
1. The decision of the Darmstadt Social Court of June 26, 2024, be overturned.
2. The suspensive effect of the applicant's action of June 3, 2024, against the respondent's decision of October 19, 2023, as amended by the decision on the objection of May 29, 2024, be ordered.
The respondent requests that
the appeal be dismissed.
In support of his appeal, he argues that the decision of October 19, 2023, is already legally binding, which precludes the admissibility of the application. The instructions on legal remedies in the decision of October 19, 2023, are lawful, so the one-month deadline pursuant to Section 84 Paragraph 1 of the Social Court Act (SGG) also applies. The specific email address of the appeals authority did not need to be included in the instructions on legal remedies, as the email address to be contacted was already evident from the header. The applicant's affidavit has no bearing on the matter. It is true that he "regularly logged in and out of the initial reception center" and was not "reported as absconding." This does not invalidate the correct decision pursuant to Section 1a of the Asylum Seekers' Benefits Act (AsylbLG). The applicant is apparently still residing in Germany. As already stated in the police feedback form regarding the failed deportation attempt of August 21, 2023, the plaintiff appeared at the initial reception center every one to two days, usually for only a few minutes, but never stayed overnight. Despite the mandatory residence requirement at the center, this sporadic presence continued until the expiration of the temporary reduced benefits. The applicant continued to avoid spending the night at his accommodation and thus regularly violated the so-called nighttime order. He thereby continued to obstruct the implementation of deportation measures. The immigration authorities had no knowledge of his whereabouts during the vast majority of his absences. According to the Central Immigration Authority of his home, the deportation proceedings to Austria are not currently being abandoned. However, no further attempt has yet been made, as the matter is proving difficult due to the plaintiff's frequent absences. The appellant was indeed issued a temporary residence permit, but with the explicit condition that it would expire upon informal notification of the deportation date. Contrary to the appellant's assertions, the provision of Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) is also not unconstitutional. He fulfilled the requirements of Section 1a Paragraph 3 of the AsylbLG, which, according to Section 14 of the AsylbLG, necessarily entails a restriction of benefits for a period of six months.
II.
The applicant's appeal, filed in due form and time, is admissible. In particular, it is permissible under Section 172 Paragraph 3 No. 1 in conjunction with Section 144 Paragraph 1 Sentence 1 No. 1 of the Social Courts Act (SGG), as the applicant's grievance exceeds at least €750. The subject of the dispute is the decision of October 19, 2023, by which the respondent, revoking the decision of March 9, 2023, reduced the benefits pursuant to Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) by €182 per month for a period of six months – until March 31, 2024.
The applicant's appeal is also well-founded to the extent indicated in the operative part of the judgment. The suspensive effect of the action against the decision of October 19, 2023, as amended by the decision on the objection of May 29, 2024, was to be ordered insofar as the administrative act proves to be unlawful upon summary review insofar as it revoked the decision of March 9, 2023, pursuant to Section 48 of the German Social Code, Book Ten (SGB X) – Social Administrative Procedure and Social Data Protection – beyond November 24, 2023, until March 31, 2024, and only granted limited benefits.
The application is admissible pursuant to Section 86b Paragraph 1 Sentence 1 No. 2 of the Social Court Act (SGG), as the Social Court has already correctly determined, because the objection and the action for annulment do not have suspensive effect in this case pursuant to Section 11 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG), since the respondent, with the contested decision of October 19, 2023, both determined a restriction of benefits pursuant to Section 1a Paragraph 3 AsylbLG (Section 11 Paragraph 4 No. 2 AsylbLG) and revoked the benefit award issued by decision of March 9, 2023, pursuant to Section 48 of the German Social Code, Book X (SGB X) in conjunction with Section 9 Paragraph 4 No. 1 AsylbLG (Section 11 Paragraph 4 No. 1 AsylbLG). It is immaterial that the applicant in the appeal proceedings is now (for the first time) seeking an order suspending the effect of the – meanwhile filed – action for annulment against the contested administrative act, because, in the event of an interim decision on the objection, the application for an order suspending the effect of the objection simultaneously encompasses the application for an order suspending the effect of the subsequently filed action (see Senate decision of September 15, 2024, L 4 AY 19/24 B ER –, scheduled for publication; Bavarian State Social Court, decision of May 14, 2009 – L 8 AS 215/09 B ER –, juris with further references). The decisive factor is that the contested administrative act has not yet become final (§ 77 SGG).
The application is also justified to the extent indicated in the operative part.
The balancing of interests required when deciding on the granting of suspensive effect pursuant to Section 86 Paragraph 1 of the Social Court Act (SGG) must encompass all public and private interests that are relevant in the individual case. The prospects of success on the merits, i.e., in particular the legality or illegality of the administrative act, are of considerable importance insofar as they can be assessed within the scope of the summary review required in preliminary legal protection proceedings (cf. regarding the specifically disputed standard for granting suspensive effect: Hessian State Social Court, decision of March 26, 2007 – L 9 AS 387/07 ER – and Keller, in: Meyer-Ladewig/Keller/Schmidt, SGG – Commentary, 14th ed. 2023, Section 86b, marginal notes 12 et seq.). The suspension of enforcement must be ordered without further ado if the decision is manifestly unlawful (and the action admissible), whereas it is precluded if the decision is manifestly lawful (or the action manifestly inadmissible). Particularly when the prospects of success are uncertain, a comprehensive balancing of interests must take place, within which the fundamental rights of those affected must be considered, insofar as they are impacted by the decision. The assessment derived from the statutory provision for regular immediate enforcement must be observed. In cases where the applicant's request is divisible, the balancing of interests may lead to the result that enforcement is only partially suspended (Keller in: Meyer-Ladewig/Keller/Schmidt SGG, 14th ed. 2023, SGG § 86b para. 12h, beck-online with further references).
The suspensive effect of the action against the decision of October 9, 2023, as amended by the decision on the objection of May 29, 2024, was to be ordered pursuant to Section 86b Paragraph 1 of the Social Court Act (SGG) insofar as it concerns the period beyond November 24, 2023, up to March 31, 2024; the public interest in the enforcement of the restrictions on benefits pursuant to Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) in the decision of October 9, 2023, as amended by the decision on the objection of May 29, 2024, must yield to the applicant's interest in suspension in this respect. In contrast, for the period up to November 24, 2023, the public interest in the enforcement of the administrative act prevails, since the decision of October 19, 2023, is lawful with regard to the restriction of benefits for this period, according to the summary review required in preliminary legal protection proceedings.
The application is not precluded by the finality of the contested administrative act (§ 77 SGG). The action filed with the Darmstadt Social Court on June 3, 2024, against the objection decision of May 29, 2024 (file no.: S 16 AY 49/24) is admissible, in particular, it was filed within the prescribed time limit.
Furthermore, the lawsuit has a strong likelihood of success for the period from November 24, 2023, to March 31, 2024, as the objection to the decision of October 19, 2023, is admissible and also well-founded with regard to the aforementioned period. However, success on the merits is not expected with regard to the period up to November 24, 2023.
The objection to the decision of October 19, 2023 is admissible.
The admissibility of an objection generally requires that it be filed within one month of the contested administrative act being served on the aggrieved party (§ 84 para. 1 sentence 1 SGG). However, the time limit for an appeal only begins to run if the party concerned has been informed of this. If the instruction was omitted or incorrect, an appeal is generally admissible within one year of service (§ 66 para. 2 sentence 1 in conjunction with § 84 para. 2 sentence 2 SGG).
The one-year time limit is decisive here because the instructions on legal remedies in the decision of October 9, 2023, are incorrect. Instructions on legal remedies are incorrect within the meaning of Section 66 Paragraph 2 Sentence 1 of the Social Court Act (SGG) if they do not accurately reproduce at least those characteristics that Section 66 Paragraph 1 SGG expressly lists as components of the instructions, namely the admissible legal remedy itself (i.e., its designation by type), the administrative body or court to which the legal remedy must be submitted, its location, and the applicable time limit (Federal Social Court, Judgment of March 14, 2013 – B 13 R 19/12 R –, SozR 4-1500 § 66 No. 3, juris Rn. 15). Furthermore, according to the established case law of the Federal Social Court (see BSG, judgment of September 27, 2023 – B 7 AS 10/22 R –, juris para. 16; BSG, judgment of March 14, 2013 – B 13 R 19/12 R –, SozR 4-1500 § 66 No. 3, juris para. 16 with further references; left open: BSG, decision of March 9, 2023 – B 4 AS 104/22 BH –, juris para. 16), instruction on the essential content of the formal requirements to be observed when lodging the appeal is necessary. Even if, with regard to the applicability of Section 37 Paragraph 6 of the Hessian Administrative Procedure Act (HVwVfG), it could be assumed that, within the scope of application of the Asylum Seekers' Benefits Act (AsylbLG), information on the required form of an objection is not a necessary component of the legal remedies information in an administrative act, because the provision, unlike Section 36 of the German Social Code, Book X (SGB X) (cf. regarding compliance with formal requirements in this context, Federal Social Court (BSG), Judgment of September 27, 2023 – B 7 AS 10/22 R –, juris para. 16), does not explicitly stipulate this, the legal remedies information in question is nevertheless incorrect. According to established case law, legal remedies information is also incorrect if it is likely to mislead the affected party regarding the formal or substantive requirements of the available legal remedy and thereby deter them from pursuing the legal remedy at all, in a timely manner, or in a timely manner. to file in the correct form (BSG, judgment of September 27, 2023 – B 7 AS 10/22 R –, juris para. 14; BSG, judgment of March 14, 2013 – B 13 R 19/12 R –, SozR 4-1500 § 66 No. 3, juris para. 16 with reference to BVerwG, judgment of March 21, 2002 – 4 C 2/01 – juris para. 12; BFH decision of December 12, 2012 – IB 127/12 – juris para. 15, each with further references).
This is the case here, because the respondent, in the decision of October 19, 2023, also provided information on the required form for filing an objection and specified concrete requirements with regard to electronic form, namely a qualified electronic signature or submission via De-Mail. However, these requirements did not fully encompass all permissible forms of objection submission available to the respondent at the relevant time of the issuance of the administrative act. The wording "If an objection is filed electronically, the electronic document must be signed with a qualified electronic signature or sent as De-Mail in accordance with Section 5 Paragraph 5 of the De-Mail Act" is flawed, as it only incompletely covers the possibilities of electronic submission. Section 3a Paragraph 2 of the Hessian Administrative Procedure Act (HVwVfG) lists various ways in which the written form can be replaced by electronic form. According to Section 3a Paragraph 2 Sentence 2 HVwVfG, an electronic document bearing a qualified electronic signature is sufficient for this purpose. Furthermore, the written form pursuant to Section 3a Paragraph 2 Sentence 4 of the Administrative Procedure Act (HVwVfG) can also be replaced by the direct submission of the declaration in an electronic form provided by the authority on an input device or via publicly accessible networks (No. 1); in the case of applications and notifications, by sending an electronic document to the authority using the transmission method pursuant to Section 5 Paragraph 5 of the De-Mail Act of April 28, 2011 (Federal Law Gazette I p. 666), as last amended by the Act of July 18, 2017 (Federal Law Gazette I p. 2745) (No. 2); in the case of electronic administrative acts or other electronic documents of the authorities, by sending a De-Mail message pursuant to Section 5 Paragraph 5 of the De-Mail Act, where the confirmation of the accredited service provider identifies the issuing authority as the user of the De-Mail account (No. 3); through other secure procedures, which are established by statutory order of the state government and which authenticate the data transmitter (sender of the data) and guarantee the integrity of the electronically transmitted data set as well as accessibility; the IT Planning Council issues recommendations on suitable procedures (No. 4). It follows that the use of a qualified electronic signature or De-Mail does not represent the only possible way to raise an objection electronically, but that further options are available to the data subjects; in particular, the submission of the declaration pursuant to Section 3a Paragraph 2 No. 1 of the Administrative Procedure Act (HVwVfG). In any case, the respondent did not point this out in the contested instructions on legal remedies, even though, according to the applicant's uncontested submissions, he had opened access to an input portal. Regardless of whether the necessary content of a notice of appeal includes this information, the notice of appeal in the decision of October 9, 2023 is therefore incorrect, because a notice of appeal containing information that is not required is also incorrect if it contains unnecessary additions that are erroneous or misleading (Federal Social Court, decision of March 9, 2023 – B 4 AS 104/22 BH –, juris para. 16; Federal Fiscal Court, decision of May 21, 2021 – II S 5/21 (PKH) –, juris para. 20 with further references). The incomplete list of electronic filing options used in the contested decision could mislead the affected party, preventing them from filing the appeal in the correct form (see VG Weimar, decision of April 20, 2023 – 1 E 2673/22 We –, juris para. 36).
Based on the summary examination required in preliminary legal protection proceedings, it is highly likely that the objection will be partially successful on the merits, because the contested decision of October 9, 2023, is unlawful – according to the standard of preliminary legal protection proceedings – insofar as it orders the restriction of entitlement pursuant to Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) beyond November 24, 2023.
The Social Court correctly relied on Section 9 Paragraph 4 Number 1 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Section 48 Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X) and Section 1a Paragraph 3 Sentence 1 of the AsylbLG as the legal basis for the administrative act in dispute and affirmed their compliance with the legal requirements. The Senate refers to the reasoning given in the contested decision (decision transcript, page 8, 4th paragraph to page 11, 1st paragraph) pursuant to Section 142 Paragraph 2 Sentence 3 of the Social Courts Act (SGG) and therefore refrains from providing further reasoning in this respect.
The applicant's assertion in the appeal proceedings – substantiated by the affidavit of June 20, 2024 – that he resided at the initial reception center at xxx, 64295 Darmstadt, between December 6, 2023, and March 31, 2024, and regularly logged in and out, and that he was never registered as absconding, does not lead to a different assessment of the alleged violation of the Central Immigration Authority's night-time order. This is because the applicant is neither accused of absconding, nor is the regular logging in and out of the accommodation sufficient to fulfill the obligation imposed on him by the night-time order to report his absence between midnight and 6:00 a.m. from Monday to Friday, as he was neither actually present at the accommodation at the specified time on August 21, 2023, nor did he adequately report his absence
The respondent was therefore only permitted, as a consequence of the law, to grant benefits to the extent regulated in Section 1a Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) and to partially revoke the decision of March 9, 2023, regarding the granting of basic benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) in accordance with Section 48 Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X), with effect for the future.
However, according to the jurisprudence of the deciding Senate – as the Social Court has already correctly stated – Section 1a Paragraph 1 Sentence 3 of the Asylum Seekers' Benefits Act (AsylbLG) must be interpreted in conformity with the constitution in light of the judgments of the Federal Constitutional Court of July 18, 2012 – 1 BvL 10/10 et al. = BVerfGE 132, 134 = SozR 4-3520 § 3 No. 2 and of November 5, 2019 – 1 BvL 7/16 = NJW 2019, 3703 (Senate decision of February 26, 2020 – L 4 AY 14/19 B ER –, juris). Insofar as Section 1a Paragraph 1 Sentences 2 and 3 of the Asylum Seekers' Benefits Act (AsylbLG) generally limits the amount of the entitlement to cover the needs for food and accommodation, including heating, as well as personal and health care, and only provides for further benefits in exceptional cases under special circumstances, an interpretation that, as a rule, results in a shortfall in the subsistence minimum, particularly in the area of social participation, would be unconstitutional, as it does not meet the strict proportionality requirements for such a shortfall (for details, see Senate Decision of February 26, 2020, L 4 AY 14/19 B ER, juris Rn. 39 f). However, the hardship provision of Section 1a Paragraph 1 Sentence 3 of the Asylum Seekers' Benefits Act (AsylbLG) is, due to its wording as a means-tested legal consequence, open to a constitutionally compliant interpretation such that the additional benefits provided for in Sections 3, 3a, and 6 of the AsylbLG are to be granted, but not as a lump sum, rather only if this is warranted by the applicant's specific circumstances (Senate Decision of February 26, 2020, L 4 AY 14/19 B ER, juris Rn. 46 ff with further references). In the Senate's view, the individual case provision of Section 1a Paragraph 1 Sentence 3 of the AsylbLG, which takes special circumstances into account, must cover every case of need under Section 3 Paragraph 1 of the AsylbLG – not only under Section 3 Paragraph 1 Sentence 1 – outside the benefits reduced under Section 1a Paragraph 1 Sentence 2 of the AsylbLG. The sanction thus consists of the applicant being referred from the lump-sum benefit model of Section 2 Asylum Seekers' Benefits Act (AsylbLG) and Sections 3 and 3a AsylbLG to registering their individual needs, particularly in the area of socio-cultural existence, and being unable to benefit from the lump sum payment if they fail to demonstrate these needs (Senate decision of February 26, 2020, L 4 AY 14/19 B ER, juris para. 49). Considering these principles, the Senate, after the summary review required in preliminary injunction proceedings, also finds that the proceedings in question are not unlawful with regard to the legal consequences, as the applicant has failed to demonstrate and substantiate a specific, necessary personal need that is not covered by the reduced benefits. The applicant merely asserts in general terms that their income falls below the constitutionally guaranteed minimum subsistence level.
However, the respondent was not entitled to order the restriction of the claim until March 31, 2024.
According to the clear wording of Section 1a Paragraph 3 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG), the restriction of benefits due to the impossibility of enforcing deportation measures for which the applicant is responsible begins at a specific point in time, namely "from the day following the enforceability of a deportation threat or a deportation order" (Oppermann in: Schlegel/Voelzke, jurisPK-SGB XII, 4th ed., Section 1a AsylbLG [as of September 3, 2024], para. 74; GK-SRB/Treichel, 3rd ed. 2023, AsylbLG Section 1a para. 45, beck-online; Grube/Wahrendorf/Flint/Leopold, 8th ed. 2024, AsylbLG Section 1a para. 89, beck-online; BeckOK MigR/Decker, 19th ed. July 1 2024, AsylbLG § 1a Rn. 35, beck-online. To the extent that it is sometimes argued that the restriction of entitlement only takes effect from the point in time at which there is a reason for the non-enforcement of the measure attributable solely to the beneficiary, if the non-enforcement of the measure terminating residence is – initially – not attributable to the beneficiary (without further explanation: Cantzler, Asylbewerberleistungsgesetz, AsylbLG § 1a Rn. 79, beck-online), as is regularly the case in instances of violation of a night-time order, this cannot be readily reconciled with the wording of the provision. Rather, this legal consequence can arise from the application of §§ 45, 48 SGB X, insofar as these authorize the revocation or withdrawal of an administrative act with continuing effect (as is the case here) with effect from the point in time of the single cause for the non-enforcement. Unlike the sanctions under the Second Book of the Social Code. (SGB II) – Citizen's Allowance, Basic Income Support for Job Seekers – does not authorize a reduction in benefits under Section 1a Paragraph 3 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) at the beginning of the calendar month following the effective date of the sanction notice (cf., however, Section 31b Paragraph 1 Sentence 1 SGB II). Rather, the legislative concept most closely resembles that of the disqualification period under Section 159 of the German Social Code, Book III (SGB III) – Employment Promotion. This disqualification period begins on the day after the event triggering the disqualification and is to be implemented in accordance with administrative procedure law; if the granting administrative act may not be revoked (Section 45 SGB X) or rescinded (Section 48 SGB X), the employment promotion agency remains obligated to provide benefits despite the disqualification period having taken effect (cf. Knickrehm/Roßbach/Waltermann/Kallert, 8th ed. 2023, SGB III Section 159 marginal note 92). 93, beck-online, mw N.).
Regarding the end of the benefit restriction, Section 14 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) applies, according to which the restriction of entitlement is to be limited to six months.
Based on this, the restriction of benefits – starting from the deportation order issued by the Federal Office for Migration and Refugees on May 2, 2023, and enforceable since May 23, 2023 – could begin no earlier than May 24, 2023, and ended on November 24, 2023 (for the end of the period, Sections 188 et seq. of the German Civil Code (BGB) apply pursuant to Section 31 Paragraph 1 of the Administrative Procedure Act (HVwVfG); see GK-SRB/Treichel, 3rd edition 2023, AsylbLG Section 1a, marginal note 46, beck-online).
Insofar as the respondent, in the decision of October 19, 2023, announced on October 24, 2023, granted benefits until March 31, 2024 only to the extent of Section 1a Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG), this is therefore unlawful according to the summary examination required in the preliminary legal protection proceedings. While Section 14 Paragraph 2 of the Asylum Seekers' Benefits Act (AsylbLG) authorizes the continuation of the restriction of benefits in the event of a continuing breach of duty, provided the legal requirements for the restriction continue to be met, this requires a new factual and legal review of the individual case as well as a discretionary decision by the authority regarding the further period for which the temporary restriction of benefits will be continued (Grube/Wahrendorf/Flint/Leopold, 8th ed. 2024, AsylbLG § 14 para. 8, beck-online; Oppermann in: Schlegel/Voelzke, jurisPK-SGB XII, 4th ed., § 14 AsylbLG [as of May 1, 2024], para. 26 with further references). However, such a review by the respondent did not take place in the present case.
Insofar as the rigid time limit of Section 14 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) raises constitutional questions, in particular if the person concerned ceases the disapproved conduct (cf. Grube/Wahrendorf/Flint/Leopold, 8th ed. 2024, AsylbLG Section 14 para. 7, beck-online with further references), this requires no further consideration, just as the question of when a monocausality or a "must be responsible" on the part of the applicant ends due to the requirement of a renewed deportation attempt by the immigration authorities ends (cf. Senate decision of August 30, 2024 in proceedings L 4 AY 12/24 B).
The decision on costs follows from the corresponding application of Section 193 of the Social Court Act (SGG).
The granting of legal aid is based on Section 73a Paragraph 1 Sentence 1 of the Social Courts Act (SGG) in conjunction with Section 114 Paragraph 1 Sentence 1 of the Code of Civil Procedure.
This decision is final and cannot be appealed pursuant to Section 177 of the Social Court Act (SGG).
