DECISION
in the legal dispute
1. xxx,
– Applicant –
2. xxx,
– Applicant –
Procedural representative: Attorney Sven Adam,
Lange-Geismar-Str. 55, 37073 Göttingen
– regarding clauses 1 and 2 –
against
City of Stuttgart – Social Welfare Office –
represented by the Mayor,
Eberhardstr. 33, 70173 Stuttgart
– Respondent –
The 11th Chamber of the Stuttgart Social Court
on December 20, 2024 in Stuttgart
through Judge xxx of the Social Court
without oral proceedings:
The respondent is ordered by way of preliminary injunction to grant the applicants provisional and subject to the right of recovery analogous benefits pursuant to Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) from August 14, 2024 until a final decision is reached on the applicants' objection of August 13, 2024, but no later than June 30, 2025, in the legally prescribed amount.
The respondent shall bear the applicant's extrajudicial costs.
REASONS
The applicants seek, by way of preliminary legal protection, the granting of analogous benefits pursuant to Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG).
Applicant No. 1 was born on xx.xx.1991 and has been housed in communal accommodation within the meaning of Section 53 Paragraph 1 of the Asylum Act (AsylG) since xx.xx.2018. Applicant No. 1, together with her three children (xxx born xxx, xxx born xxx, xxx/Applicant No. 2 born xxx), receives benefits under the Asylum Seekers' Benefits Act (AsylbLG).
The applicant's asylum application was rejected on 14 August 2019, with the decision becoming final on 1 February 2022, and deportation has been threatened since 20 November 2019.
The applicant has been in possession of a certificate of suspension of deportation pursuant to Section 60a Paragraph 2 Sentence 1 of the Residence Act since January 20, 2020, and has been in possession of a certificate of suspension of deportation pursuant to Section 60b Paragraph 1 of the Residence Act (tolerated stay for persons with unclear identity) since December 19, 2023, valid until April 16, 2025.
By decisions dated 17 May 2024, the respondent granted the applicants benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) for the period from February 2024 to April 2024.
By the implementing decision of 25 June 2024, the respondent granted – in accordance with the decision of the Stuttgart Social Court of 14 June 2024 (Case No. S 11 AY 2008/24 ER) – benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) in the standard benefit level 1 for the period from 29 May 2024 onwards.
The applicant's legal representative filed an objection on August 13, 2024, against the implied granting of benefits effective August 1, 2024, arguing that the previous failure to switch to benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) was unjustified. No decision on the objection has yet been issued.
The applicant also filed an application for preliminary legal protection with the Stuttgart Social Court by letter dated 13 August 2024, received on 14 August 2024.
The applicant argues that the "waiting period" stipulated in Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) has long since been exceeded and that the duration of the applicants' stay was not deliberately influenced through abuse of rights. Therefore, they are entitled to benefits under Section 2 of the AsylbLG.
The applicant requests that
the respondent be ordered, by way of an interim injunction, to grant the applicants, provisionally and subject to the right of recovery, the requested benefits in the statutory amount pursuant to Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) 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 applicants' objection of August 13, 2024, against the de facto granting of benefits under the Asylum Seekers' Benefits Act (AsylbLG).
The respondent requests that
the application be rejected.
The respondent argues that there is no entitlement to benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG). The applicant herself abused her rights by influencing or extending her length of stay. The applicant has not proven her identity. The requirements of Section 2 Paragraph 1 Sentence 1 of the AsylbLG are not met.
For further details of the facts and the legal arguments, reference is made to the court file and the administrative and immigration files of the defendant.
II.
The application for preliminary legal protection is admissible and well-founded.
In this case, preliminary legal protection is governed by Section 86 Paragraph 2 Sentence 2 of the Social Courts Act (SGG). According to this provision, the court hearing the main proceedings may issue a preliminary injunction to regulate a provisional state of affairs with regard to a disputed legal relationship if such regulation appears necessary to avert substantial disadvantages. This is the case if, upon preliminary examination, the applicant has a claim to the requested benefit (claim for an injunction) and the enforcement of the claim cannot wait for a decision in the main proceedings due to particular urgency (ground for an injunction). The claim for an injunction and the ground for an injunction must be substantiated (Section 86b Paragraph 2 Sentence 4 SGG in conjunction with Section 920 Paragraph 2 of the Code of Civil Procedure – ZPO). In view of its provisional nature, the interim order may not, in principle, anticipate the final decision in the main proceedings (cf. LSG North Rhine-Westphalia of 26 January 2015 – L 7 AS 617/14 B; LSG Saxony of 19 December 2016 – L 7 AS 1001/16 B ER; HK-SGG/Binder § 86b Rn. 45).
The claim for an injunction and the grounds for the injunction are not isolated entities; rather, they 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. If the main action is 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 the main action is manifestly well-founded, the requirements for the grounds for the injunction are reduced. However, even then, a ground for the injunction cannot be dispensed with entirely (Lower Saxony-Bremen Higher Social Court, decision of November 15, 2013 – L 15 AS 365/13 B ER, para. 18, juris; Hesse Higher Social Court, decision of February 5, 2007 – L 9 AS 254/06 ER, para. 4, juris). Rather, the issuance of a preliminary injunction must be necessary to avert substantial disadvantages; that is, there must be an urgent emergency requiring an immediate decision. Such an emergency exists when one's livelihood is threatened or significant economic disadvantages are likely (Keller in: MeyerLadewig/Keller/Leitherer/Schmidt, SGG, 13th ed. 2020, § 86b para. 29a; Burkiczak in: Schlegel/Voelzke, jurisPK-SGG, 2nd ed., § 86b SGG (as of 03.02.2023), para. 412).
Based on this, and following a summary examination of the current state of facts and legal arguments, it is highly probable that the main proceedings will establish that the applicants are entitled to higher benefits under the Asylum Seekers' Benefits Act (AsylbLG) pursuant to Section 2 Paragraph 1 Sentence 1 AsylbLG.
According to Section 2 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) as amended on 08.05.2024, the Social Code Book XII (SGB XII) shall apply accordingly to those beneficiaries who have been residing in the federal territory for 36 months without significant interruption and who have not abusively influenced the duration of their stay.
The applicant No. 1 has been housed in communal accommodation since 25 September 2018 and has undoubtedly been staying in the federal territory for more than 36 months without significant interruption since then, and has not abusively influenced the duration of her stay.
The term "abuse of rights" within the meaning of Section 2 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) is not defined anywhere in the AsylbLG itself. According to the jurisprudence of the Federal Social Court (BSG) on Section 2 of the AsylbLG in the version applicable until February 28, 2015, it comprises, as reprehensible misconduct, an objective component – the element of abuse – and a subjective component – culpability. Objectively speaking, abuse of rights presupposes dishonest conduct that is disapproved of by the legal system. The nature, extent, and consequences of the breach of duty are so serious within the scope of application of Section 2 Paragraph 1 of the AsylbLG that, in light of the principle of proportionality, the breach of duty must be given considerable weight. Conduct is considered an abuse of rights only if, taking into account the specific circumstances of the individual case, the particular situation of a foreigner in the Federal Republic of Germany, and the specific characteristics of the Asylum Seekers' Benefits Act (AsylbLG), it is inexcusable in the sense of being socially unacceptable (see Federal Social Court [BSG] judgment of June 17, 2008 – B 8/9b AY 1/07 R, para. 33 et seq., juris). The Federal Social Court continues to adhere to this jurisprudence (see, for example, Federal Social Court [BSG] judgment of June 24, 2021 – B 7 AY 4/20 R, para. 16, juris).
According to the wording of the law (which remains unchanged in this respect), neither the passage of time nor subsequent good conduct on the part of the foreigner can lead to the granting of analogous benefits. Thus, the foreigner is, in principle, permanently excluded from the greater alignment with living conditions in Germany and better social integration that the payment of analogous benefits is intended to achieve (see Federal Social Court, judgment of June 24, 2021 – B 7 AY 4/20 R, para. 17, juris).
To raise the accusation of abusive manipulation of the length of stay, persistent breaches of duty – potentially spanning years – are required; the mere late submission of passport photos, for example, is insufficient. A single breach of duty – if the required cooperation is provided shortly thereafter – will hardly be able to justify the serious accusation of abuse of rights from the perspective of proportionality. Likewise, the authorities may not demand actions that are doomed to failure from the outset. Rather, when considering which specific acts of cooperation are reasonable, all circumstances and particularities of the individual case must be taken into account. The conduct of the authorities is also significant, especially whether they have clearly and unambiguously communicated to the foreign nationals which specific acts of cooperation are required. Only by considering the aforementioned criteria can it ultimately be assessed whether a breach of the duty to cooperate objectively justifies the accusation of abuse of rights. Considering the serious consequences of a permanent exclusion from privileged benefits in cases of abuse of rights, strict requirements must be placed on the determination of abusive conduct in cooperation activities (cf. Filges in: Schlegel/Voelzke, jurisPK-SGB XII, 4th ed., § 2 AsylbLG (as of 19.11.2024), para. 152).
Based on the applicable standard, the mere fact that a person entitled to benefits – as in this case – was granted a temporary suspension of deportation for persons with unclear identity pursuant to Section 60b of the Residence Act (AufenthG) under the Asylum Seekers' Benefits Act (AsylbLG) is not an abuse of rights. Rather, it must be examined whether the conditions for an abuse of rights, according to the principles developed by the Federal Social Court (BSG), are met in the respective individual case (see also Filges in: Schlegel/Voelzke, jurisPK-SGB XII, 4th ed., Section 2 AsylbLG (as of November 19, 2024), para. 164).
According to the immigration file, the Karlsruhe Regional Council requested the responsible immigration authority on January 2, 2023, to issue a temporary suspension of deportation (Duldung) pursuant to Section 60b Paragraph 1 of the German Residence Act (AufenthG), even though a Duldung had previously always been issued pursuant to Section 60a Paragraph 2 Sentence 1 of the German Residence Act (due to family ties or lack of travel documents). The changed basis for the Duldung is not apparent to the court based on the file alone. Previously, the applicant had been requested by the Karlsruhe Regional Council, by order dated October 28, 2022, to submit valid travel documents for her child xxx. Furthermore, the immigration file shows that the applicant (item 1) had already submitted her Gambian birth certificate on January 20, 2020, and her Gambian passport, issued on September 28, 2021, to the immigration authority on July 17, 2024. The immigration file does not give rise to any doubts about the applicants' identities. In particular, the court finds no evidence that applicant no. 1 has provided a false identity (e.g., false name or place of birth). Given the serious consequences of a permanent exclusion from benefits, it is insufficient for the respondent to assume, based solely on the issuance of a temporary suspension of deportation under Section 60b of the Residence Act, that the identity has not been conclusively established. Rather, the respondent is obligated to conduct an independent examination in each individual case in accordance with the aforementioned principles established by the Federal Social Court.
While delayed cooperation in obtaining substitute travel documents over several years is generally considered socially unacceptable (see Filges in: Schlegel/Voelzke, jurisPK-SGB XII, 4th ed., § 2 AsylbLG (as of November 19, 2024), para. 161), the court finds no such delay clearly evident in this case. On the contrary, the applicant submitted her Gambian birth certificate on January 20, 2020, and her Gambian passport on July 17, 2024. She also stated to the immigration authorities that she had applied for the passport much earlier, but that there had been delays in bringing it to Germany. In light of the case file and the applicant's written statements in her immigration file, the court is convinced that the applicant made every effort to fulfill her duty to cooperate within the scope of her capabilities – particularly alongside caring for her three children. The Chamber is of the opinion that the delays that occurred do not justify the serious accusation of abuse of process and a permanent exclusion from benefits under the principle of proportionality. In this context, the respondent also failed to examine the extent to which the applicant (point 1) had already fulfilled her obligations to cooperate and, if applicable, what further obligations could reasonably have been expected of her.
Insofar as the respondent refers to the procurement of passports for the minor children xxx and xxx, the immigration file does not contain sufficient information on this matter. In particular, it is unknown whether the respondent has already taken any steps in this regard. However, the respondent should ascertain this – citing the existing duty to investigate ex officio – and this could easily be achieved by personally questioning the applicant (point 1) (if necessary, with the assistance of an interpreter).
Regardless of this, the subjective component (culpability) of the abuse of rights also appears highly questionable to the Chamber. This component is only fulfilled if there is intent both with regard to the factual circumstances and with regard to influencing the duration of the stay (so-called double intent, cf. Filges in: Schlegel/Voelzke, jurisPK-SGB XII, 4th ed., § 2 AsylbLG (as of November 19, 2024), para. 197). In this respect, the respondent has not even conducted a personal interview with the applicant to clarify the subjective component, so that any information on this point is lacking. However, in the Chamber's view, a personal interview would be essential, as it concerns the determination of a personal accusation of guilt, of which the trial judge must be convinced with near certainty (cf. Filges in: Schlegel/Voelzke, jurisPK-SGB XII, 4th ed., § 2 AsylbLG (as of 19.11.2024), para. 215).
In this context, the burden of proof for both the subjective and objective components lies with the authority, i.e., the respondent (see Grube/Wahrendorf/Flint/Leopold, 8th ed. 2024, AsylbLG § 2 para. 34, beck-online; BeckOK SozR/Korff, 74th ed. 1.9.2024, AsylbLG § 2 para. 12, beck-online). Any remaining doubts are therefore to the detriment of the respondent.
Given the subsistence-securing nature of the analogous benefits, the applicants have also credibly demonstrated the necessary grounds for the injunction. In this respect, and considering the interplay between the claim for an injunction and the grounds for the injunction (the greater the prospects of success in the main proceedings, the lower the requirements for the grounds for the injunction, and vice versa, cf. Meyer-Ladewig/Keller/Schmidt SGG/Keller, 14th ed. 2023, SGG § 86b para. 27, beck-online), higher benefits pursuant to Section 2 para. 1 of the Asylum Seekers' Benefits Act (AsylbLG) should be granted provisionally by way of an interim injunction (cf. Lower Saxony-Bremen State Social Court, decision of June 29, 2023 – L 8 AY 18/23 B ER, para. 10, juris)
The decision on costs is based on a corresponding application of Section 193 of the Social Court Act (SGG).
The following is information on legal remedies.
