DECISION
In the legal dispute
xxx,
– Applicant –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55,
37073 Göttingen
against
Hermeskeil Municipal Administration,
represented by the Mayor,
Langer Markt 17, 54411 Hermeskeil
– Respondent –
The 3rd Chamber of the Social Court of Trier decided on February 24, 2025, through the Vice President of the Social Court xxx:
1. The respondent is ordered by way of preliminary injunction to grant the applicant provisional benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act at standard benefit level 1 for the period from February 6, 2025, until a final and binding decision is reached on the objection to the decision of January 23, 2025, but no later than March 23, 2025, taking into account benefits already received. The application beyond this is dismissed.
2. The respondent shall bear 1/3 of the applicant's extrajudicial costs.
3. The applicant is granted legal aid for the exercise of his rights in the first instance, with the appointment of lawyer Sven Adam, Göttingen, under the conditions of a lawyer residing in the district of the Social Court of Trier.
REASONS
I.
The applicant seeks higher benefits under the Asylum Seekers' Benefits Act (AsylbLG) by way of preliminary legal protection.
The applicant, born in xxx 2005, is a Syrian national. He entered Germany on July 8, 2024, via Italy and Switzerland, with a request for asylum, and submitted a written asylum application on July 23, 2024. According to the applicant, he was subjected to identification procedures, including the taking of fingerprints, by the Italian authorities during his journey.
The Trier-Saarburg district, to which the applicant was assigned for reception and accommodation, ordered by letter to the respondent dated September 12, 2024, the accommodation of the applicant in the communal accommodation xxx, for the period from September 24, 2024 to March 23, 2025. From March 24, 2025, he is assigned to the municipality of Schweich (decision of the Trier-Saarburg district dated September 12, 2024).
The respondent granted the applicant ongoing benefits under the Asylum Seekers' Benefits Act (AsylbLG) by decision dated September 24, 2024, effective from September 24, 2024. She calculated and quantified the benefits for the months of September 2024 (pro rata) and October 2024 on the following basis:
| Needs assessment | |
| Sociocultural subsistence level | 204,00 € |
| Physical minimum standard of living | 256,00 € |
| Accommodation costs | |
| Base rent | 380,00 € |
| Heating costs including hot water costs | 50,00 € |
| Income to be used | 0,00 € |
The notification contains the following addendum: "The amounts will be paid monthly in advance to the payees listed in the annex, as long as your personal and financial circumstances have not changed."
The respondent paid the benefits to secure the subsistence minimum for November 2024 to the applicant by check.
The Federal Office for Migration and Refugees (BAMF) rejected the applicant's asylum application as inadmissible by decision dated October 15, 2024. It determined that no grounds for prohibition of deportation existed under Section 60, paragraphs 5 and 7, sentence 1 of the Residence Act (AufenthG) and ordered the applicant's deportation to Italy. Furthermore, the BAMF imposed a statutory entry and residence ban pursuant to Section 11, paragraph 1 of the Residence Act (AufenthG) and limited it to 15 months from the date of deportation. The asylum application was deemed inadmissible under Section 29, paragraph 1, number 1 of the Asylum Act (AsylG) because Italy was responsible for processing the asylum application due to the applicant's illegal entry across the Dublin external border and the deemed consent provision of Article 13, paragraph 1 in conjunction with Article 22, paragraph 7 of the Dublin III Regulation. The Federal Office for Migration and Refugees (BAMF) stated that, according to its findings, no grounds for prohibiting deportation existed. The applicant must be informed that the member state responsible for the asylum application is the one in which the first illegal border crossing into the European Union or the first asylum application took place. If an applicant then seeks asylum in another member state and submits a further application there, the member state of the illegal border crossing or the first application remains responsible. Italy has become responsible for processing the applicant's asylum application. The applicant will be informed of the possibility of voluntary departure, provided this has been coordinated with all relevant authorities. The deportation order to Italy is based on Section 34a Paragraph 1 Sentence 1 of the Asylum Act.
By decision dated November 15, 2024, the respondent recalculated the benefits granted to the applicant and set the entitlement for December 2024 at €672.00 (need for socio-cultural subsistence minimum €34.22 + need for physical subsistence minimum €207.78 + housing costs €430). In support of this, the respondent referred to the decision of the Federal Office for Migration and Refugees (BAMF) dated October 15, 2024, according to which the benefits were reduced pursuant to Section 1a Paragraph 4 in conjunction with Section 1a Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) for the period from December 1, 2024, to March 31, 2025. During this period, the applicant would only receive benefits to cover the need for food and accommodation, including heating, as well as personal hygiene and healthcare. The notification states: "This permit is initially granted for one month; if the conditions remain the same, the permit period will be extended by each additional month in which the conditions are met."
By further notice dated January 3, 2025, the respondent recalculated the benefits for January 2025, setting them at €662.00 (need for socio-cultural subsistence minimum €32.80 + need for physical subsistence minimum €199.20 + accommodation costs €430). The reason given for the recalculation was the adjustment of benefits pursuant to Sections 3 and 1a of the Asylum Seekers' Benefits Act (AsylbLG) effective January 1, 2025. Regarding the reduction in benefits, reference was made to the notice dated November 15, 2024. This approval was initially granted for one month; if the conditions remained unchanged, the approval period would be extended by one additional month for each month in which the conditions were met.
By decision dated January 23, 2025, the respondent discontinued the benefits granted, effective February 1, 2025. The respondent justified this decision by stating that, according to the decision of the Federal Office for Migration and Refugees (BAMF) dated October 15, 2024, the applicant met the requirements of Section 1 Paragraph 4 Sentence 1 Number 2 of the Asylum Seekers' Benefits Act (AsylbLG). Therefore, the applicant was not entitled to benefits under the AsylbLG, and the benefits were discontinued. The respondent ordered the applicant to comply immediately with his obligation to leave the country and to vacate his room in the communal accommodation immediately, and no later than February 14, 2025. Should the applicant not have departed by February 1, 2025, and be in need of assistance at that time, they will be granted limited assistance once within a two-year period for a period of two weeks (February 1-14, 2025) in accordance with Section 1 Paragraph 4 Sentences 2 to 4 of the Asylum Seekers' Benefits Act (AsylbLG) to bridge the gap until their departure (bridging benefits). If special circumstances so require, the applicant may be granted other benefits in accordance with Section 3 Paragraph 1 Sentence 1 and Section 4 of the AsylbLG, or benefits for a period exceeding two weeks, to overcome particular hardship and to cover a temporary need (hardship benefits in accordance with Section 1 Paragraph 4 Sentence 6 of the AsylbLG).
The applicant filed an objection to the decision on February 6, 2025, which is evidently still pending.
He also applied to the court for preliminary legal protection. He bases his application on constitutional concerns regarding Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG). He argues that
the regulation violates the dignified minimum standard of living guaranteed by Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1 of the Basic Law (GG). This, he contends, gives rise to a direct constitutional entitlement to benefits, which must secure his physical and socio-cultural existence. Within the framework of its mandate to protect human dignity and in fulfillment of its social welfare mandate, the state is obligated to ensure that the material prerequisites for a life of human dignity are available. Section 1, paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) completely excludes those affected from benefits and thus contains a generalized restriction that is incompatible with the constitutional requirements established by the jurisprudence of the Federal Constitutional Court. The human dignity guaranteed in Article 1, paragraph 1 of the Basic Law (GG) cannot be relativized for migration policy purposes. The exclusion from benefits under Section 1, paragraph 4 of the AsylbLG pursues no legitimate aim, as it is not intended to enforce any obligations to cooperate under asylum or residence law. Rather, it is clearly about the repressive sanctioning of the individual's conduct in specific cases, with the aim of curbing unwanted secondary migration. Furthermore, Section 1, paragraph 4 of the AsylbLG violates EU law, as a reduction in benefits is only permissible if a subsequent application is filed or if there is an allegation of misconduct. Neither of these conditions is met. The minimum level of benefits guaranteed by EU law is not being upheld.
Furthermore, the requirements of Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) are not met, because the Federal Office for Migration and Refugees (BAMF) has not determined that departure is legally and practically possible. The respondent is also aware that deportations to Italy are currently not possible.
The applicant requests that
the suspensive effect of the objection of 06.2.2025 against the decision of 23.1.2025 be reinstated and that the respondent be ordered by way of an interim injunction to grant him, provisionally and subject to the right of recovery until a final decision on the objection is reached, the requested benefits in the statutory amount from 06.2.2025 onwards, taking into account the legal opinion of the court.
The respondent requests that
the application be rejected.
She argues that
the termination of benefits and the granting of bridging benefits were carried out in accordance with Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) and the circular issued by the Ministry for Family, Women, Culture and Integration on December 5, 2024. The Federal Office for Migration and Refugees (BAMF) pointed out in its decision the possibility of voluntary departure, provided this was coordinated with the relevant authorities. If the actual or legal possibility of departure did not exist, the BAMF would not have made these statements; the possibility of departure is therefore established. Deportations to Italy are currently possible in principle. However, this is not the decisive factor; rather, the prerequisite is that deportation is ordered pursuant to Section 34a Paragraph 1 Sentence 1, Alternative 2 of the Asylum Act (AsylG), which is the case here.
With the application for an interim injunction, the applicant, submitting a declaration of his personal and financial circumstances, requested the granting of legal aid and the appointment of lawyer Sven Adam, Göttingen.
For further details of the facts and the legal arguments, reference is made to the contents of the case file and the administrative file submitted by the respondent.
II.
The application is admissible and partially justified. The applicant is entitled to the provisional granting of benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG).
The applicant seeks, by way of preliminary legal protection, the provisional granting of benefits. In this case, this request can only be validly achieved by applying for a preliminary injunction. The decisive factor for determining how preliminary legal protection is to be granted is the legal remedy available in the main proceedings. In this case, that would be a combined action for annulment and performance (§ 54 para. 1 and 4 of the Social Courts Act).
1. a benefit under this law is wholly or partially withdrawn or the benefit award is revoked, or
2. a restriction of the entitlement to benefits is determined in accordance with Section 1a or Section 11 Paragraph 2a.
The decision of January 23, 2025, does not meet these requirements. It neither withdraws benefits under the Asylum Seekers' Benefits Act (AsylbLG) in whole or in part, nor does it revoke a benefit award or establish a restriction of benefits pursuant to Section 1a or Section 11 Paragraph 2a of the AsylbLG.
Withdrawal of benefits means that an already granted, ongoing, i.e., regularly recurring, benefit is no longer provided in whole or in part. The benefit entitlements cease "from the time the withdrawal decision takes effect, i.e., prospectively, for the duration of the withdrawal decision's validity" (Markus Sichert in: Hauck/Noftz SGB I, Section 66, marginal note 26; Stephan Gutzler in: Lilge/Gutzler, SGB I, Section 66, marginal note 27). In the present case, there is no prior, ongoing benefit award.
None of the benefit notices issued by the respondent before January 23, 2025, constitute a continuing administrative act. Whether and to what extent a benefit award constitutes a continuing administrative act must be determined by interpretation based on the objective standard of the recipient (see, with further references, Federal Social Court, judgment of May 27, 2014 – B 8 SO 26/12 R –, juris). The objective scope of a decision under the Asylum Seekers' Benefits Act (AsylbLG) can be limited to one month if the approval is granted, for example, "from July 1, 2003," but is limited to that month and includes a corresponding addendum (Federal Social Court, Judgment of June 17, 2008 – B 8/9b AY 1/07 R –, juris).
Based on this, the respondent, in its decisions of September 24, 2024, November 15, 2024, and January 3, 2025, granted benefits limited to the months specified in those decisions. It expressly made no decision for the subsequent periods. According to the addendum included in each decision, the approval for the following months was to be granted later, assuming the circumstances remained unchanged. If the circumstances remained unchanged, this decision was made by payment in the sense of a tacit decision pursuant to Section 33. Paragraph 2 of the German Social Code, Book Ten (SGB X) is announced (see Federal Social Court, judgment of June 17, 2008 – B 8/9b AY 1/07 R –, juris) and is also implemented, unless a new, explicit, deviating approval has been granted for the following month by written decision. This practice corresponds to the nature of benefits under the Asylum Seekers' Benefits Act (AsylbLG), which are not pension-like long-term benefits and allow the administration to react immediately to the short-term changes that almost regularly occur in this benefit area.
No benefit award has been revoked pursuant to Sections 45 and 48 of the German Social Code, Book X (SGB X). For the future, this would only be possible if it had been a continuing administrative act, which, as just explained, is not the case. The granting of benefits for the past is not affected by the decision of January 23, 2025.
The granting of bridging benefits does not constitute a restriction of the entitlement to benefits under Section 1a or Section 11 Paragraph 2a of the Asylum Seekers' Benefits Act (AsylbLG). Even according to the wording of the law, the granting of bridging benefits is not a restriction of benefits, but rather is linked to an exclusion from benefits that is expressly stipulated in Section 1 Paragraph 4 of the AsylbLG. Section 1a of the AsylbLG, which does not address the case of Section 1 Paragraph 4 of the AsylbLG, is therefore not applicable, just as Section 11 Paragraph 2a of the AsylbLG is not. Consequently, the suspensive effect of the objection is also not eliminated under Section 11 Paragraph 4 Number 2 of the AsylbLG.
The suspensive effect of the objection to the decision of January 23, 2025, which could be established declaratorily, did not achieve the applicant's legal objective, nor did it improve his legal position. Therefore, preliminary legal protection can only be granted pursuant to Section 86b Paragraph 2 Sentence 2 of the Social Court Act (SGG), as the applicant seeks to expand his legal position. A prior or simultaneous order for the suspensive effect is not required. For the period in dispute here, beginning on February 6, 2025, there is no prior (higher) benefit award.
According to Section 86b Paragraph 2 of the Social Court Act (SGG), the court of first instance may, upon application, issue a preliminary injunction concerning the subject matter of the dispute if there is a risk that a change in the existing state of affairs could frustrate or significantly impede the realization of a right of the applicant (Sentence 1). Preliminary injunctions are also permissible to regulate a provisional state of affairs with regard to a disputed legal relationship if such regulation appears necessary to avert significant disadvantages (Sentence 2).
In the present case, a regulatory order pursuant to Section 86b Paragraph 2 Sentence 2 of the Social Court Act (SGG) is appropriate, as the preliminary establishment of a legal position is sought. The requested legal protection can be granted if the regulation appears necessary, particularly in the case of ongoing legal relationships, to avert significant disadvantages, to prevent imminent violence, or for other reasons.
For this to be granted, it must be credibly demonstrated that the applicant's asserted right against the respondent exists (claim for an injunction) and that the applicant would suffer significant disadvantages without the issuance of the requested preliminary injunction (ground for the injunction). According to the purpose of Section 86b Paragraph 2 of the Social Court Act (SGG), the instrument of preliminary legal protection regulated therein is intended to prevent irreparable administrative decisions and thus final circumstances that can no longer be corrected by the court. Accordingly, a preliminary injunction can only be obtained before a court decision on the merits if, without the requested injunction, the applicant would suffer serious and unreasonable disadvantages that cannot be averted in any other way and that could not be remedied by the subsequent decision on the merits. Furthermore, success on the merits must be probable, and the preliminary injunction must not render the main proceedings moot or preempt them. If the examination conducted in the expedited proceedings already reveals that the right claimed by the applicant does not exist in his favor, then a preliminary injunction is also not possible under Section 86b Paragraph 2 of the Social Court Act (SGG), because there is then no legally secure and worthy legal position.
If fundamental rights are affected, the factual and legal situation must be examined not only summarily, but conclusively (Federal Constitutional Court, decision of May 12, 2005 – 1 BvR 569/05 –, juris). A decision based on a careful and sufficiently substantiated assessment of the consequences is only permissible if a review of legality – to be carried out according to the aforementioned standards – cannot be realized even considering the short time regularly available in preliminary injunction proceedings (cf. Federal Constitutional Court, decision of 14 September 2016 – 1 BvR 1335/13 –, juris). The circumstances at the time of the court's preliminary decision are regularly decisive for assessing the requirements for the order.
Based on this, the court is convinced that both a claim for an injunction and grounds for such an injunction exist. Given the facts and the law, the applicant's request will most likely be successful in the main proceedings.
According to Section 3 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG), those entitled to benefits under Section 1 receive benefits to cover their needs for food, accommodation, heating, clothing, healthcare, and household goods and consumables (essential needs). In addition, according to Section 3 Paragraph 1 Sentence 2 of the AsylbLG, they are granted benefits to cover their personal needs of daily life (essential personal needs). If these needs, with the exception of those for accommodation, heating, household goods, apartment maintenance, and household energy, are fully covered by cash benefits, the monthly amount is determined in Section 3a Paragraphs 1 and 2 of the AsylbLG, as amended by the respective version of the announcement regarding the benefit rates pursuant to Section 3a Paragraph 4 of the Asylum Seekers' Benefits Act.
The applicant belongs to the group of persons entitled to benefits under the law pursuant to Section 1 Paragraph 1 Number 5 of the Asylum Seekers' Benefits Act (AsylbLG). As a result of the rejection of his asylum application by the Federal Office for Migration and Refugees (BAMF) decision of October 15, 2024, the applicant is a foreigner subject to enforceable deportation. He is also in need of assistance (cf. Section 7 Paragraph 1 Sentence 1 AsylbLG), as he has no income or assets.
The court has significant doubts as to whether the applicant can be excluded from benefits pursuant to Section 1 Paragraph 4 Sentence 1 Number 2 of the Asylum Seekers' Benefits Act (AsylbLG). According to this provision, persons subject to enforceable deportation orders whose asylum application has been rejected as inadmissible by a decision of the Federal Office for Migration and Refugees (BAMF) pursuant to Section 29 Paragraph 1 Number 1 in conjunction with Section 31 Paragraph 6 of the Asylum Act (AsylG), for whom deportation has been ordered pursuant to Section 34a Paragraph 1 Sentence 1 Alternative 2 of the Asylum Act (AsylG), and for whom, according to the BAMF's determination, departure is legally and factually possible, are not entitled to benefits under the AsylbLG, even if the BAMF's decision is not yet legally binding.
The court cannot discern a (positive) finding by the Federal Office for Migration and Refugees (BAMF) that departure is legally and practically possible. While the notification from the Trier-Saarburg district administration to the respondent dated January 22, 2025 (email), stating that deportations to Italy were currently not possible, does not preclude such a finding, this notification pertains to the execution of deportations, not the possibility of departure, which is not identical to deportation. In any case, this is not a finding by the BAMF. In its decision of October 15, 2024, the BAMF did state that no prohibition of deportation existed under Section 60, paragraphs 5 and 7 of the Residence Act and ordered deportation pursuant to Section 34a, paragraph 1 of the Asylum Act. However, it appears highly doubtful that the BAMF thereby also made a finding that departure is legally and practically possible. The law distinguishes between prohibitions on deportation and the suspension of deportation because factual and legal reasons render deportation impossible (see Section 60a Paragraph 2 of the Residence Act). Even in the absence of a prohibition on deportation, deportation may be impossible for factual and legal reasons. Notwithstanding the fact that prohibitions on deportation under Section 60 Paragraphs 5 and 7 of the Residence Act stipulate different factual prerequisites than the factual and legal impossibility of departure (see also Section 60a Paragraph 2 of the Residence Act, which stipulates the factual and legal possibility), the law expressly requires a positive determination with the aforementioned content. According to the wording of the law, the Federal Office for Migration and Refugees (BAMF) must make an explicit determination that departure is possible (also) for legal and factual reasons. The deportation order pursuant to Section 34a Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG), which, according to the first sentence of the provision, is issued as soon as it is established that deportation can be carried out, does not replace this determination. Otherwise, Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act would also be redundant, since the threat of deportation is already a prerequisite for the exclusion from benefits. The court has no indication of an intention on the part of the legislature to include elements of the offense multiple times in one provision. The court therefore understands the determination by the Federal Office for Migration and Refugees (BAMF) stipulated in Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act as an independent element of the offense, which is not apparent to date. The reference to the possibility of voluntary departure included in the decision of October 15, 2024, is not a determination in itself, even linguistically, and does not constitute one.
Furthermore, there are considerable doubts about the conformity of Section 1 Paragraph 4 Sentence 1 No. 2 of the Asylum Seekers' Benefits Act (AsylbLG) cited here with European law; in any case, it is unclear whether the regulation is compatible with Article 17 of Directive 2013/33 EU (see also Frerichs in: Schlegel/Voelzke, jurisPK-SGB XII, Section 1 AsylbLG, marginal notes 199 et seq.).
According to Article 17(2) of the Directive of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection, Member States shall ensure that the material benefits provided in the context of reception are commensurate with an adequate standard of living which guarantees the livelihood and the protection of the physical and mental health of applicants.
The applicant, by virtue of his asylum application, which is still pending, belongs to the group of persons entitled to asylum under Article 3(1) of Directive 2013/33/EU. In cases where the asylum seeker has not (yet) actually been transferred to another Member State deemed responsible, the scope of application of the Directive is clearly established (see the referral order of the Federal Social Court of 25 July 2024 – B 8 AY 6/23 R –, juris).
The level of benefits to be granted is based on a level of benefits comparable to that afforded to the Member State's own nationals. While Article 17(5), second sentence, of Directive 2013/33/EU allows Member States to grant applicants for international protection less favorable treatment than their own nationals, the benefits must still correspond to an adequate standard of living (Article 17(2) of Directive 2013/33/EU). The level of material benefits, in the form of cash payments or vouchers, is determined by the Member States based on the level of benefits that the Member State in question applies, in accordance with its national legislation or practice, to ensure an adequate standard of living for its own nationals (Article 17(5) of Directive 2013/33/EU). Less favorable treatment compared to nationals is permitted, particularly if material support is provided partly in the form of benefits in kind or if the level of benefits applicable to nationals aims to guarantee a standard of living higher than that prescribed for applicants under this Directive (Article 17(5), second sentence, of Directive 2013/33/EU).
Benefits granted during reception may be restricted or withdrawn in accordance with Article 20 of Directive 2013/33/EU. It is doubtful whether Section 1(4), first sentence, no. 2 of the Asylum Seekers' Benefits Act (AsylbLG) meets this standard in the abstract; in any case, it is not apparent that the requirements are met in the specific case. According to the available information, the applicant has not violated the accommodation assignment or failed to comply with his obligations to provide information and report. The court is also unable to establish that the applicant has submitted a subsequent application pursuant to Article 2(q) of Directive 2013/32/EU. The Federal Office for Migration and Refugees (BAMF) also has no such information; in its decision of October 15, 2024, it explicitly points out that the applicant has not yet initiated asylum proceedings in Italy. Therefore, the factual prerequisites under Article 20(1) of Directive 2013/33/EU, which could justify the imposition of restrictions or withdrawal of benefits, are not met.
Regardless of the doubts outlined above regarding the conformity of Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) with EU law, the question of the conformity of benefit restrictions under the AsylbLG with EU law is, in any case, to be considered open in light of the referral decision of the Federal Social Court (BSG). By decision of July 25, 2024 – B 8 AY 6/23 R – the BSG referred the question to the European Court of Justice (ECJ) as to whether a regulation of a Member State which grants applicants for international protection, depending on their status as persons subject to enforceable deportation, within the transfer period under Regulation (EU) No. 604/2013, exclusively an entitlement to accommodation, food, personal hygiene and medical treatment, as well as, depending on the circumstances of the individual case, clothing and household goods, covers the minimum level described in Article 17 Paragraphs 2 and 5 of Directive 2013/33/EU. The question of compatibility with European law must be raised all the more when not only the restriction of benefits, but, as in this case, an exclusion of benefits for the named group of persons to which the applicant belongs, is stipulated.
The serious doubts regarding the conformity of Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) with European law must, in the present case, be decided in favor of the applicant within the framework of the required balancing of interests to grant effective preliminary legal protection and lead to a preliminary obligation on the part of the respondent to provide benefits (BeckOK/Wahrendorf, SGG, Section 86b, marginal notes 28, 30). This follows in particular from the function of the requested benefits as securing subsistence (cf. Federal Constitutional Court, decision of July 18, 2012 – 1 BvL 10/10, 1 BvL 2/11 –, juris).
In this sense, grounds for an injunction also exist. The applicant is not receiving the requested subsistence benefits, so it must be assumed that the injunction is intended to avert an existential disadvantage.
The applicant is to be granted benefits provisionally from February 6, 2025. This time limit is based on the applicant's assignment to the respondent's area of responsibility. According to the current information, the respondent will no longer have jurisdiction beyond March 23, 2025. The applicant's unrestricted request for benefits beyond this date must therefore be rejected.
The decision on costs follows from the corresponding application of Section 193 Paragraph 1 of the Social Court Act (SGG) and corresponds to the outcome (losing and winning).
III.
Legal aid is granted pursuant to Section 73a of the Social Court Act (SGG) and Sections 114 et seq. of the Code of Civil Procedure (ZPO) because, as previously explained, the application for a preliminary injunction in the matter has sufficient prospects of success and the applicant, taking into account the information provided in the declaration of personal and financial circumstances, cannot raise the necessary funds to conduct the litigation himself. Attorney Sven Adam is appointed pursuant to Section 73a Paragraph 1 Sentence 1 of the Social Court Act (SGG) in conjunction with Section 121 Paragraph 2 of the Code of Civil Procedure (ZPO), with the proviso that no further costs will be incurred as a result of his appointment (Section 121 Paragraph 3 of the Code of Civil Procedure (ZPO)).
This decision granting legal aid is final and not subject to appeal by the parties – Section 73a Paragraph 1 of the Social Court Act (SGG) in conjunction with Section 127 Paragraph 2 of the Code of Civil Procedure (ZPO). However, it can be appealed by the public treasury within three months of the pronouncement of the decision (Section 127 Paragraph 3 ZPO).
The following is information on legal remedies.
