VERDICT
in the legal dispute
1. xxx,
– Plaintiff –
2. xxx,
– Plaintiff –
Procedural representative:
Attorney Sven Adam,
Lange-Geismar-Str. 55, 37073 Göttingen
– regarding clauses 1 and 2 –
against
City of Stuttgart – Office for Social Affairs and Participation,
represented by the Mayor,
Eberhardstr. 33, 70173 Stuttgart
– Defendant –
The 9th Chamber of the Stuttgart Social Court,
based on the oral hearing of March 25, 2025 in Stuttgart,
with Judge xxx (further supervising judge) presiding and Lay Judges xxx and xxx presiding, has ruled as follows:
The appeal decision of 5 January 2024 is overturned and the defendant is ordered to grant the plaintiffs analogous benefits in the statutory amount pursuant to Section 2 AsylbLG from 1 February 2023 to 31 October 2023.
The decisions of 16 April 2024, as amended by the decisions on the objections of 18 July 2024, are hereby revoked, and the defendant is ordered to revoke the decisions of 27 January 2022, 21 September 2022, and 18 January 2023, and is ordered to grant analogous benefits in the statutory amount pursuant to Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) from 1 February 2022 to 31 January 2023.
The defendant must reimburse the plaintiffs for their extrajudicial costs.
FACTS
The parties are in dispute over the granting of analogous benefits under the Asylum Seekers' Benefits Act (AsylbLG) for the period from 1 January 2022 to 31 October 2023.
The first plaintiff, born in 1968, and the second plaintiff, born in 1970, are married and Iranian citizens. They entered Germany on September 16, 2019, and together with their son, born in 2005, have been assigned to communal accommodation in Stuttgart since October 29, 2019, where they have lived ever since.
Both initially held a residence permit until 30 January 2022, and since then have held a tolerated stay due to missing travel documents according to § 60a para. 2 sentence 1 of the Residence Act.
The Stuttgart Administrative Court definitively rejected her asylum application with a judgment dated November 10, 2021.
By notice/order dated March 2, 2022, the defendant's immigration office requested the plaintiffs to submit valid travel documents by June 2, 2022. By letter dated July 21, 2023, the defendant also requested the plaintiffs to submit valid travel documents.
The defendant did not reduce benefits in accordance with Section 1a of the Asylum Seekers' Benefits Act (AsylbLG).
Instead, by decision of 9 November 2023 (in the expedited proceedings S 9 AY 3729/23), it granted the plaintiffs (as well as their son from 1 October 2022) analogous benefits pursuant to Section 2 AsylbLG after four years of residence from 1 November 2023 onwards, for reasons of proportionality.
On November 2, 2023, the plaintiff's representative contacted the defendant and filed an objection against the implied grant of benefits from February 1, 2023 to May 31, 2023 and the period from June 1, 2023 to October 31, 2023, which the defendant rejected with a notice of objection dated January 5, 2024.
The lawsuits filed with the Stuttgart Social Court on January 21, 2024, are directed against this decision. The plaintiffs argue that the deadline stipulated in Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) has long since expired. They maintain that they did not abuse their right to remain in the country.
Also on November 2, 2023, the plaintiff's representative requested a review of the benefit periods from January 1, 2022 to September 30, 2022 and from October 1, 2022 to January 31, 2023, which the defendant rejected with notices dated April 16, 2024 and appeal decisions dated July 18, 2024, citing the lack of travel documents.
The plaintiffs filed lawsuits against this decision with the Stuttgart Social Court on August 18, 2024.
The court consolidated the four lawsuits with decisions dated February 27, 2024 and August 15, 2024.
The plaintiffs request that
the appeal decision of January 5, 2024, be set aside and that the defendant be ordered to grant the plaintiffs analogous benefits in the statutory amount pursuant to Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) from February 1, 2023, to October 31, 2023, as well as to set aside the decisions of April 16, 2024, as amended by the appeal decisions of July 18, 2024, and to order the defendant to set aside the decisions of January 27, 2022, September 21, 2022, and January 18, 2023, and to grant analogous benefits in the statutory amount pursuant to Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) from February 1, 2022, to January 31, 2023.
The defendant requests that
the action be dismissed.
She considers the amount of compensation to be appropriate and points out that the plaintiffs had abused their rights by failing to obtain passports.
Regarding further details of the facts, reference is made to the electronically maintained court files (including those of proceedings S 9 AY 246/24, S 9 AY 3020/24 and S 9 AY 3021/24), the defendant's paper administrative files and the minutes of the public hearing of 25 March 2025.
REASONS FOR DECISION
The actions, which are admissible as combined actions for annulment and performance or as combined actions for annulment, declaratory judgment, and performance, are well-founded. The contested decisions are unlawful and infringe upon the plaintiffs' rights.
You are entitled to analogous services from 1 February 2022.
The subject of the dispute in the lawsuits filed on January 21, 2024, is the period from February 1, 2023 to October 31, 2023.
The lawsuits filed on August 14, 2024, concern (within the framework of a review application) the period from February 1, 2022 to January 31, 2023.
The dispute throughout the entire period from 1 February 2022 to 31 October 2023 concerns whether the plaintiffs are entitled to analogous benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) or not, because they have resided in the federal territory for 18 months without significant interruption and have not abusively influenced the duration of their stay (version of 15 August 2019, valid until 26 February 2024).
According to Section 44 Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X), the revocation of an unlawful, non-beneficial administrative act requires that, insofar as it emerges in an individual case that the law was incorrectly applied or that the decision was based on facts that prove to be incorrect, and insofar as social benefits were therefore wrongfully withheld or contributions were wrongfully collected, the administrative act must be revoked with retroactive effect, even after it has become legally binding. (4) 1
According to paragraph 4 of the regulation, social benefits are provided in accordance with the provisions of the special parts of this Code for a maximum period of four years prior to the revocation if an administrative act with retroactive effect has been revoked. The date of revocation is calculated from the beginning of the year in which the administrative act is revoked. If the revocation is made upon application, the application replaces the revocation itself when calculating the period for which retroactive benefits are payable.
According to Section 9 Paragraph 4 Sentence 2 No. 2 AsylbLG, Section 44 SGB X applies only with the proviso that instead of the period of four years according to Paragraph 4 Sentence 1, a period of one year applies.
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, even after its comprehensive revision effective March 1, 2015, by the Act Amending the AsylbLG and the Social Courts Act (SGG) of December 10, 2014 (Federal Law Gazette I 2187) and subsequent amendments. According to the Federal Social Court's (BSG) jurisprudence on Section 2 of the AsylbLG, this reprehensible misconduct comprises an objective component – the element of abuse – and a subjective component – culpability.
From an objective standpoint, abuse of rights presupposes dishonest conduct that is disapproved of by the legal system. Within the scope of Section 2 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) as amended by the law of August 19, 2007, the nature, extent, and consequences of the breach of duty are so serious for the foreigner (and, according to the version then in force, also for his children) 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. 35 juris, and BSG judgment of June 24, 2021 – B 7 AY 4/20 R –, para. 15 juris, most recently denied in the case of the use of church asylum). The state cannot invoke the defense of abuse of rights if it itself acts unlawfully or abusively (BSG judgment of June 17, 2008 – B 8/9b AY 1/07 R – para. 34 juris)
Taking these requirements into account, there is no abuse of rights on the part of the plaintiffs, because the mere existence of an obligation to leave the country and the two requests to obtain travel documents do not, in the event of failure to obtain travel documents, lead to an inexcusable and serious objective breach of duty comparable to the cases mentioned by the legislator (destruction of passports or provision of a false identity, cf. Federal Social Court, judgment of 17 June 2008 – B 8/9b AY 1/07 R –, para. 34 juris) or other constellations (delay of the asylum procedure due to a delayed asylum application, Higher Social Court of Baden-Württemberg, decision of 6 November 2017 – L 7 AY 2691/15, juris).
This is also in light of the fact that neither the defendant reduced the benefits, nor did the immigration authority take any further action – apart from the single warning – to shorten the period of stay.
The court also found no evidence of fault on the part of the plaintiffs.
Since the plaintiffs had already fulfilled the 18-month stay requirement on March 16, 2021, they are entitled to analogous benefits during the disputed period from February 1, 2022, which is why the action was to be granted.
The decision on costs is based on § 193 SGG and takes into account that the action was successful.
The following is information on legal remedies.
