VERDICT
In the legal dispute
xxx,
– Plaintiff –
Legal representative:
Attorney Sven Adam,
Lange Geismarstr. 55, 37073 Göttingen,
against
Offenbach District,
Department of Municipal Supervision and Law,
Werner-Hilpert-Str. 1, 63128 Dietzenbach,
– Defendant –
The 14th Chamber of the Social Court of Berlin, without oral proceedings, rendered the following judgment on June 16, 2025, through Judge xxx, Lay Judge Ms. xxx and Lay Judge Mr. xxx:
The defendant's decision of January 24, 2022 (file no.: 53377.73406.02) as amended by the appeal decision of May 30, 2022 is hereby overturned, and the defendant is ordered to withdraw the decision of January 7, 2020, and to pay the plaintiff benefits pursuant to Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) for the period from February 1, 2020, to June 30, 2020, taking into account any benefits already paid for this period.
The defendant must reimburse the plaintiff for his necessary extrajudicial costs.
FACTS
The plaintiff also objects to a reduction in benefits pursuant to Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) and requests higher benefits under the AsylbLG for the period from February 2020 to June 2020.
The plaintiff is an Afghan national and entered Germany on January 4, 2016. On August 8, 2016, he submitted an asylum application, which the Federal Office for Migration and Refugees (BAMF) rejected with a decision dated February 16, 2017. Due to incorrect addressing, the decision was not properly served, and the plaintiff did not actually receive it until November 23, 2017. On November 24, 2017, he filed a lawsuit against this decision with the Administrative Court. According to the BAMF, an enforceable deportation order had been in effect since March 29, 2017. However, as a result of the failed service of his rejection notice in November 2017, the plaintiff initially received a temporary residence permit, which was valid until November 14, 2018. On November 15, 2018, he was granted a temporary suspension of deportation again, based on the deemed receipt of the rejection notice dated February 27, 2017. This suspension was subsequently extended regularly. No new deportation order was issued. According to the file, no efforts were made to deport the plaintiff. However, at each renewal appointment, he was asked to obtain his national passport or to cooperate in obtaining it. He consistently refused to complete or sign the corresponding applications. On August 11, 2020, the Frankfurt am Main Administrative Court granted him refugee status by court order.
During the originally disputed period from January 1, 2020, to January 31, 2021 (hereinafter: benefit period 1), and during the still disputed period from February 1, 2020, to June 30, 2021 (hereinafter: benefit period 2), the plaintiff lived in communal accommodation within the defendant's jurisdiction. He received analogous benefits from the defendant pursuant to Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Section 27a of Book Twelve of the German Social Code (SGB XII) at standard benefit level 1, based on a notice of approval dated November 19, 2019, which stipulated that the analogous benefits would be tacitly renewed monthly. By letter dated January 7, 2020, the defendant notified the plaintiff of a planned reduction in benefits due to a lack of cooperation in obtaining a passport. The hearing notice cited the plaintiff's lack of cooperation as the reason for the planned benefit reduction and set a deadline of January 24, 2020, for the plaintiff to respond and provide further information. The plaintiff did not respond. The defendant then issued the contested decision of January 27, 2020, determining that the plaintiff's entitlement to benefits under the Asylum Seekers' Benefits Act (AsylbLG) was restricted from February 1, 2020, to June 30, 2020, pursuant to Section 1a Paragraph 3 of the AsylbLG. During this period, the defendant made two monthly payments totaling €164.00.
The plaintiff, through his legal representative, filed a request on November 4, 2021 – apparently assuming he was assigned to standard benefit level 2 – for a review of benefit period 1, and in a further request of the same date for a review of benefit period 2, requesting full benefits at standard benefit level 1. The defendant rejected this request with review decisions dated January 24, 2022. On January 25, 2022, the plaintiff filed an objection to both review decisions, arguing that the reduction under Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) and the benefits under Sections 3, 3a Paragraph 1 No. 2 lit. b, Paragraph 2 No. 2 lit. b of the AsylbLG (i.e., standard benefit level 2) were unconstitutional.
The appeals authority rejected the appeals as unfounded in decisions dated May 27, 2022 (concerning benefit period 1) and May 30, 2022 (concerning benefit period 2). Regarding benefit period 1, it essentially stated that the benefit calculation had been carried out in accordance with the law and was based on accurate facts. The amount of benefits to be granted is determined by the legislature. The administration is not authorized to grant higher benefit amounts than those stipulated by law. The unconstitutionality of a federal regulation can only be determined by the Federal Constitutional Court. Since this has not yet occurred, the administration is bound by the regulations. Regarding benefit period 2, the appeals authority stated that it was established that the plaintiff had failed to comply with his obligations to cooperate in obtaining identification documents. According to the legal provisions, it is both possible and required to impose benefit restrictions in such a case. The plaintiff continued to receive the essential and unavoidable basic allowance. Regarding his argument that the standard benefit rates were unconstitutional, he reiterated his statements from the initial appeal decision.
In his lawsuit filed with the Berlin Social Court on June 21, 2022, the plaintiff continues to pursue his claim regarding benefit period 2. He argues that, according to the decision of the Federal Constitutional Court of November 5, 2019 (Case No.: 1 BvL 7/16) concerning sanctions under Book Two of the German Social Code (SGB II) and the findings therein, a sanction under Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) also cannot withstand constitutional requirements. He further reiterates his arguments from the objection proceedings regarding the unconstitutionality of Sections 3, 3a Paragraph 1 No. 2 lit. b, and Paragraph 2 No. 2 lit. b of the AsylbLG.
The plaintiff also filed a separate lawsuit with the Berlin Social Court on February 22, 2024, against the decision on his objection concerning benefit period 1. This lawsuit was initially registered under file number S 90 AY 139/22. By order of January 26, 2023, the cases were consolidated for joint hearing and decision. They were continued under the aforementioned file number. After the defendant informed the plaintiff by letter dated April 23, 2024, that a total of €81.67 had been overpaid for the 2020 benefit period, which would be offset against the plaintiff's claim for back payment for January 2020, the plaintiff declared the lawsuit for benefit period 1 settled by declaration dated April 26, 2024.
The plaintiff therefore ultimately requests
that the defendant's decision of January 24, 2022, as amended by the appeal decision of May 30, 2022, be set aside and that the defendant, by amending the granting of benefits for the period from February 1, 2020 to June 30, 2020, be ordered to grant the subsistence benefits monthly in the statutory amount, taking into account the legal opinion of the court.
The defendant requests
that the action be dismissed.
The defendant argues that the restriction of benefits was lawful because the plaintiff did not cooperate sufficiently in obtaining the passport. He further refers to his decision on the objection.
For further details of the facts and legal arguments, reference is made to the defendant's files and the court files.
REASONS FOR DECISION
The admissible claim is well-founded.
The local jurisdiction of the Berlin Social Court is derived from Section 57 Paragraph 1 Sentence 1 of the Social Court Act (SGG). According to this provision, the Social Court with local jurisdiction is the one in whose district the plaintiff has his registered office or residence at the time the action is filed, or, in the absence of either, his place of abode. At the time the action was filed, the plaintiff was officially registered in Berlin and thus within the jurisdiction of the Berlin Social Court.
The court was able to decide without an oral hearing pursuant to Section 124 Paragraph 2 of the Social Courts Act (SGG), because the parties involved had given their consent.
Due to the declaration of settlement dated April 26, 2024, the month of January 2020 is no longer in dispute. The only remaining claim is for the granting of benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) without the restriction under Section 1a Paragraph 3 of the AsylbLG. Since a review decision under Section 44 of the Tenth Book of the Social Code (SGB X) is at issue, the correct type of action is a combined action for annulment, performance, and enforcement (Section 54 Paragraphs 1 and 4 of the Social Courts Act (SGG)). The action for annulment aims at the reversal of the review decision, the action for performance aims at the reversal of the original decision, and the action for enforcement aims at a judgment ordering the payment of the benefit to be claimed (Baumeister in: juris-PK on Section 44 SGB X, marginal note 154 with further references to the case law of the Federal Social Court). The plaintiff's application was to be interpreted in this sense according to § 123 SGG, as it was also incorporated into the operative part of the judgment.
The defendant's decision of January 24, 2022, as amended by the appeal decision of May 30, 2022, is unlawful and infringes the plaintiff's rights. The plaintiff is entitled to the revocation of the decision of January 27, 2020, as the requirements of Section 44 Paragraph 1 of the German Social Code, Book X (SGB X) are met.
According to Section 44 Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X), if it turns out in an individual case that the law was incorrectly applied or that the decision was based on facts that prove to be incorrect, and if, as a result, social benefits were wrongfully withheld or contributions were wrongfully collected, the administrative act must be revoked with retroactive effect, even after it has become legally binding. These conditions are met here, because the defendant wrongfully restricted the benefits under the Asylum Seekers' Benefits Act (AsylbLG).
The decision of January 27, 2020, is formally lawful, in particular, it was issued in accordance with the applicable procedure. The defendant heard the plaintiff before restricting the benefits, in accordance with Section 28 Paragraph 1 of the Hessian Administrative Procedure Act (HVwVfG), which also applies to administrative acts that establish a restriction of entitlement under Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) (see Baden-Württemberg Higher Social Court, judgment of November 8, 2018 – L 7 AY 4468/16 – juris para. 35). Such a hearing requires that the person concerned be heard regarding a specific set of circumstances and be given a sufficient period to submit a statement (Federal Social Court, NVwZ 1986, 596). The period is defined as the time between receipt of the hearing notice and dispatch of the statement, without taking postal delivery times into account. A period of 14 days plus postal delivery time is generally considered reasonable for hearings (see Federal Social Court, judgment of October 5, 1995 – 2 RU 11/94 – juris para. 17). The hearing notice of January 7, 2020, set such a reasonable deadline of January 24, 2020, i.e., 17 days. It cites the lack of cooperation in obtaining a passport as the reason for the benefit reduction. This request meets the requirements for a lawful hearing, as it made it sufficiently clear to the plaintiff why the reduction was intended.
However, the reduction in benefits from February 1, 2020 to June 30, 2020 pursuant to Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) is materially unlawful.
The legal basis for the defendant's restriction of benefits is Section 1a Paragraph 3 in conjunction with Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG). According to Section 1a Paragraph 3 of the AsylbLG, persons entitled to benefits under Section 1 Paragraph 1 Numbers 4 and 5 of the AsylbLG, for whom deportation cannot be carried out for reasons attributable to them, receive only benefits in accordance with Paragraph 1 from the day following the enforceability of a deportation threat or deportation order. According to Section 1a Paragraph 1 of the AsylbLG, persons entitled to benefits under Section 1 Paragraph 1 Number 5 of the AsylbLG, for whom a departure date and a possibility of departure have been established, are not entitled to benefits under Sections 2, 3, and 6 of the AsylbLG from the day following the departure date, unless the departure could not be carried out for reasons beyond their control. Until their departure or deportation, they will only receive benefits to cover their needs for food and accommodation, including heating, as well as personal hygiene and healthcare. Only in exceptional circumstances can they be granted other benefits as defined in Section 3 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG).
The conditions for restricting benefits under Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) are not met. While the plaintiff did not comply with his obligation under immigration law to cooperate in obtaining a passport, this obligation arises from Section 48 Paragraph 3 and Section 49 Paragraph 2 of the Residence Act (AufenthG). Section 3 Paragraph 1 of the Residence Act stipulates that foreigners must possess a valid passport. The plaintiff was repeatedly requested by the immigration authorities and the defendant to cooperate in obtaining a passport. Ultimately, he refused to sign the corresponding application form and declared that he did not wish to apply for a passport. Even before this, he had apparently made no effort for years to obtain travel documents for his return home. However, it would have been both possible and reasonable for him to obtain the necessary identity documents, should they no longer be in his possession.
However, the plaintiff was not subject to enforceable deportation during the entire period in dispute. As the immigration file shows, the rejection of the asylum application dated February 16, 2017, was not properly served. The deemed service provision of Section 10 Paragraph 2 Sentence 3 of the Asylum Act (AsylG) does not apply. According to this provision, the foreigner must accept service or notification to the last address provided to the relevant authority, regardless of whether this address was provided by the foreigner themselves or by a public authority (see Bergmann/Dollinger in: Bergmann/Dienelt, Ausländerrecht [Immigration Law], 15th ed., Section 10 AsylG, marginal notes 23 et seq.). The immigration file does not indicate that the plaintiff or a public authority provided the address used for service as the plaintiff's address. The plaintiff's official registration, dated March 21, 2016, lists the address "xxx". The plaintiff's residence permits, valid until February 11, 2017, and August 6, 2017, respectively, list the address "xxx". This corresponds to an official registration certificate dated March 24, 2016, according to which the plaintiff resided at xxx until May 24, 2016, and at xxx in xxx from May 24, 2016, onwards. It is unclear why the address "xxx" is used in the rejection notice and the accompanying proof of service; the notice was apparently simply addressed incorrectly. No attempt was made to deliver the notice to any of the plaintiff's actual addresses. Therefore, the requirement of deemed service upon posting is not met. Consequently, the plaintiff was not actually served with the notice until November 23, 2017.
The plaintiff filed a timely appeal against this decision on the following day. The asylum application was rejected on February 16, 2017, only as simply unfounded and not as manifestly unfounded, so that, pursuant to Section 75 Paragraph 1 Sentence 1 in conjunction with Section 38 Paragraph 1 of the Asylum Act (AsylG) in conjunction with Section 80 Paragraph 1 Sentence 1 of the Code of Administrative Court Procedure (VwGO), the appeal had suspensive effect by operation of law. For this reason, the plaintiff's status as an "asylum seeker" remained in effect during the appeal proceedings, and he should have been issued a temporary residence permit. This would have made him entitled to benefits under Section 1 Paragraph 1 Number 1 of the Asylum Seekers' Benefits Act (AsylbLG) and he would not have fallen under the scope of Section 1a Paragraph 3 of the AsylbLG. Furthermore, there was in fact no obligation to leave the country, the enforcement of which the plaintiff could have prevented by refusing to cooperate in obtaining a passport.
The reduction in benefits pursuant to Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) is therefore unlawful. Consequently, the question raised by the plaintiff regarding the constitutionality of reductions under Section 1a AsylbLG was irrelevant. Likewise, the question of the unconstitutionality of granting benefits at standard benefit level 2 was irrelevant, since the plaintiff received benefits at standard benefit level 1 throughout the entire period in dispute, a fact which was no longer in dispute between the parties, at least after the partial settlement declaration of April 26, 2024.
The plaintiff is therefore entitled to the reversal of the benefit restriction imposed in the decision of January 27, 2020. This also gives rise to the plaintiff's entitlement to analogous benefits pursuant to Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Sections 27 et seq. of Book XII of the German Social Code (SGB XII). In this regard, in addition to the in-kind benefits for accommodation already granted, a need equivalent to the standard benefit rate 1 must be taken into account. Since the imposed benefit restriction was unlawful pursuant to Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG), the plaintiff is to be granted these basic benefits without restriction for the period from February 1, 2020, to June 30, 2022, taking into account the benefits already provided.
The decision on costs is made pursuant to Section 193 of the Social Court Act (SGG), also taking into account the part of the action that has already been settled. It is irrelevant whether there were any prospects of success in this regard, since, given the low value of the claim in relation to the remaining disputed part, a cost apportionment would not be appropriate.
The following is information on legal remedies.
