DECISION
In the legal dispute
xxx,
– Applicant –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55,
37073 Göttingen
against
City of Ludwigshafen am Rhein,
represented by the Mayor,
Europaplatz 1,
67063 Ludwigshafen am Rhein
– Respondent –
The 15th Chamber of the Social Court of Speyer decided on February 12, 2025, through
Judge xxx of the Social Court
:
1. The respondent is ordered by way of preliminary injunction to provide the applicant with provisionally higher benefits under the Asylum Seekers' Benefits Act (AsylbLG) in accordance with the provisions of Book Twelve of the Social Code (SGB XII) for the period from November 27, 2024 to July 31, 2025, but at the latest until the decision on the applicant's objection to the decision of February 1, 2024 and on the applicant's objection to the decision of December 11, 2024 becomes final and legally binding.
2. The respondent shall reimburse the applicant for his necessary extrajudicial costs.
REASONS
The application is admissible and well-founded.
1. According to Section 86b Paragraph 2 Sentence 2 of the Social Courts Act (SGG), preliminary injunctions to regulate a provisional state of affairs with regard to a disputed legal relationship are permissible if such regulation appears necessary to avert substantial disadvantages. The application is admissible in particular because the main legal dispute is not a purely contestable matter. The applicant seeks the granting of higher benefits.
A prerequisite for issuing a preliminary injunction is the existence of both a claim to the injunction (i.e., a legally valid entitlement to the provisionally sought benefit) and grounds for the injunction (in the sense of the urgency of a preliminary ruling). Both the grounds for the injunction and the claim to the 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)). Due to the provisional nature of a preliminary injunction, it should generally not prejudge a final decision on the merits. In its decision, the court may both weigh the consequences and conduct a summary review of the prospects of success on the merits. However, if, without granting preliminary legal protection, serious and unreasonable impairments are imminent that cannot be averted otherwise and that could no longer be remedied by the main proceedings, then the courts may only consider the prospects of success once the factual and legal situation has been conclusively clarified. If, however, the court is unable to fully clarify the facts and the legal situation in expedited proceedings, the decision must be based solely on a balancing of interests (Federal Constitutional Court, decision of May 12, 2005 – 1 BvR 596/05 – juris). If, as in this case, the benefits in question are those under the Asylum Seekers' Benefits Act (AsylbLG), which serve to ensure a life of human dignity and thus secure the minimum subsistence level, the paramount importance of these benefits for the recipient must be taken into account, with the consequence that, in cases of doubt, the benefits must be granted provisionally for constitutional reasons.
2. The applicant has substantiated a claim for an injunction. He has – which is undisputed between the parties – a claim to ongoing benefits to secure his livelihood under the Asylum Seekers' Benefits Act (AsylbLG). He also generally meets the eligibility requirements for the granting of so-called analogous benefits under Section 2 of the AsylbLG, i.e., higher benefits compared to the standard benefits under the AsylbLG, in accordance with Book Twelve of the German Social Code (SGB XII).
The only point of contention between the parties is whether the applicant, who entered Germany from Belarus on July 17, 2022, abused his rights by influencing his stay, which lasted longer than 18 months from January 18, 2024, within the meaning of Section 2 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) in the version applicable to him until February 26, 2024, pursuant to Section 20 AsylbLG. The applicant has credibly demonstrated that this is not the case.
The circumstance initially cited by the respondent as evidence of the applicant's abusive manipulation of his residence permit is the notification from the immigration authorities that the applicant had left his passport in Belarus and had failed to comply with the deadline of October 6, 2022, set for obtaining a passport. Furthermore, in the context of these preliminary injunction proceedings, the respondent argues that the applicant's "voluntary and conscious participation in the organized smuggling of illegal migrants into the European Union, a practice known to be used by the governments of Russia and Belarus as a 'weapon' against the European Union and, in particular, the Federal Republic of Germany due to its support of Ukraine in the war in Ukraine," indicates particularly antisocial behavior. The associated practice of circumventing border fortifications, especially those of Poland, often with the accompaniment and support of Belarusian government officials, in order to gain personal advantages through unauthorized entry and the associated transfer payments, was clearly and significantly unlawful and antisocial, even for the applicant himself. Therefore, the applicant's conduct must be considered to be a serious abuse of rights.
Contrary to the respondent's view, the applicant's conduct cited by her is not, according to the preliminary assessment of the adjudicating chamber, to be regarded as an abuse of rights within the meaning of Section 2 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG).
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 in the AsylbLG itself. According to the jurisprudence of the Federal Social Court (BSG), 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. Within the scope of application of Section 2 Paragraph 1 AsylbLG, the nature, extent, and consequences of the breach of duty are so serious that, in light of the principle of proportionality, the breach must be given considerable weight. Accordingly, 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 AsylbLG, it is inexcusable in the sense of being socially unacceptable (most recently BSG, Judgment of June 24, 2021 – B 7 AY 4/20 R –, para. 15, juris).
Since the authority must raise and substantiate the allegation of abusive self-influence regarding the length of stay and present all objective circumstances that could justify this allegation, the inability to prove abusive self-influence regarding the length of stay is to the detriment of the authority (see Filges in: Schlegel/Voelzke, jurisPK-SGB XII, 3rd ed., § 2 AsylbLG (as of November 19, 2024), para. 212). The burden of proof for the existence of abusive stay therefore rests with the respondent.
The applicant's overall conduct to facilitate entry into Germany, in particular crossing the Belarusian-Polish border, does not constitute an abuse of rights influencing the length of stay, because the applicant has thereby only achieved residence in Germany. The exclusion clause of Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) does not, from the outset, refer to potentially unlawful or abusive entry (see Filges in: Schlegel/Voelzke, jurisPK-SGB XII, 4th ed., Section 2 AsylbLG (as of November 19, 2024), para. 176). Furthermore, the applicant cannot be held responsible for the conduct and motives of foreign governments in facilitating illegal border crossings.
The (undisputed) fact that the passport was left behind in Belarus is insufficient to establish, in this case, an abuse of rights influencing the length of stay. According to the applicant's statements, which cannot be refuted in these preliminary injunction proceedings, his passport was retained in Belarus by another person. The file provides no concrete evidence to suggest that the applicant himself instigated this with the intention of abusively extending his then-pending stay in Germany. It is currently unclear whether, how, and if so, in exchange for what compensation the applicant can obtain his passport. This also applies to the possibility of obtaining a new passport from the Egyptian state, which, according to the applicant's as yet uncontested statements, would cost €7,000.
For these reasons, based on the current state of facts and legal arguments, it cannot be assumed that the applicant has abused his rights to influence the length of his stay.
The applicant has thus credibly demonstrated a claim to the granting of so-called analogous benefits pursuant to Section 2 of the Asylum Seekers' Benefits Act (AsylbLG).
3. The applicant has also sufficiently demonstrated grounds for an injunction. Since the requested benefits are intended to secure the minimum subsistence level, the applicant's need for assistance must be considered urgent. The respondent does not dispute the applicant's need for assistance, and this is also evidenced by the fact that benefits have already been granted.
The respondent was therefore obligated, as requested, to provide provisional analogous benefits pursuant to Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) from the date of receipt of the application for preliminary legal protection (November 27, 2024).
This applies regardless of whether the applicant's objection to the decision of February 1, 2024, is considered to be time-barred. The applicant has a right at any time to a review and, if necessary, amendment of the current benefit award pursuant to Sections 44 or 48 of the German Social Code, Book X (SGB X). Since the respondent's review decision of December 11, 2024, was also challenged by objection, the respondent's obligation had to be limited to the period until the final and legally binding conclusion of both objection proceedings (or until July 31, 2025).
4. The decision on costs is based on Section 193 Paragraph 1 Sentence 3 of the Social Court Act (SGG). The applicant has clearly expressed through his application for legal aid that he is also requesting reimbursement of his necessary extrajudicial costs from the respondent.
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