DECISION
In the legal dispute
xxx
– Applicant –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
State capital Erfurt,
represented by the Mayor,
Fischmarkt 1, 99084 Erfurt
– Respondent –
The 6th Chamber of the Social Court of Gotha, through its presiding judge, Judge xxx, decided without oral proceedings on February 24, 2025:
1. The suspensive effect of the objection to the reduction notice of December 14, 2024, is ordered with effect from January 1, 2025, and the respondent is ordered to grant the applicant, provisionally and subject to repayment, cash benefits in the total amount of €441.00 per month from January 1, 2025, until a legally binding decision is reached on the objection, but no later than May 31, 2025. The application is otherwise dismissed.
2. The respondent shall reimburse the applicant for the necessary extrajudicial costs.
3. The applicant is granted legal aid without installment payments for the proceedings from December 23, 2024, and lawyer Sven Adam, Lange-Geismar-Straße 55, 37073 Göttingen, is appointed as his legal counsel in accordance with the application.
REASONS
I.
The applicant seeks, by way of preliminary legal protection, the full payment of cash benefits under the Asylum Seekers' Benefits Act (AsylbLG).
The applicant, born in 1986 and of Iranian nationality, was assigned as an asylum seeker by the Thuringian State Social Court on November 9, 2023, to the respondent, and by the respondent to the community accommodation xxx in Erfurt, and receives benefits under the Asylum Seekers' Benefits Act.
Most recently, the respondent granted him cash benefits in the amount of €460.00 for the month of June 2024 by decision dated May 27, 2024. The costs for accommodation, heating, household goods, apartment maintenance, and household energy were provided as benefits in kind. The general information stated: "If no changes occur, the benefit will continue to be paid automatically on a monthly basis at the amount specified in this decision."
The notice contained the following information regarding legal remedies:
“An objection may be lodged against this notice within one month of its notification. The objection must be addressed to the Erfurt City Administration, Social Services Department, Juri-Gagarin-Ring 150, 99084 Erfurt. It may be submitted in writing or by declaration for the record. The objection may also be submitted via De-Mail with sender confirmation as defined in Section 5 Paragraph 5 of the De-Mail Act to the De-Mail address stadtverwaltung@erfurt.de-mail.de. Submitting the objection by simple email does not meet the requirements for written form.”
In June 2035 and the following months, €460.00 was paid out.
By decision dated February 15, 2024, the applicant's asylum application was rejected as inadmissible pursuant to Section 29 of the Asylum Act (AsylG). The same decision also determined that no prohibitions on deportation existed under Section 60, paragraphs 5 and 7, of the Act on the Residence, Employability and Integration of Foreigners in the Federal Territory (Residence Act – AufenthG); furthermore, deportation to Croatia was ordered, and the entry and residence ban pursuant to Section 11, paragraph 1, of the Residence Act was limited to 19 months from the date of deportation.
The applicant, through his authorized representative, filed a lawsuit with the Administrative Court of Meiningen and also requested an order suspending the effect of the decision of February 15, 2024. The application for a stay of execution was rejected by the Administrative Court of Meiningen in its decision of May 30, 2024.
By letter dated June 3, 2024, the Federal Office for Migration and Refugees forwarded the decision of the Administrative Court of May 30, 2024 to the immigration authority of the respondent and informed them that the deportation order had been enforceable since May 30, 2024.
By letter dated August 22, 2024, the immigration office notified the applicant of his transfer to Croatia. The applicant was requested to be available at his assigned accommodation in 99086 Erfurt, xxx, between 0:00 and 06:00 on October 21, 2024, for the purpose of terminating his stay.
On October 21, 2024, the applicant's relocation to an unknown destination was recorded.
By fax also dated October 21, 2024, the Thuringian State Administration Office cancelled the flight to Croatia scheduled for the applicant at 7:20 a.m. on the same day, as the applicant's whereabouts were unknown according to information from the Thuringian State Police.
By letter dated November 5, 2024, the applicant's move from unknown to the previous communal accommodation on October 24, 2024, was reported.
On November 7, 2024, the transfer deadline was extended to November 30, 2025.
By decision dated November 14, 2024, the applicant was granted cash benefits in the amount of €242.00 "for the month of December 2024." The costs for accommodation, heating, household goods, apartment maintenance, and household energy were again provided as benefits in kind. At the same time, the previous benefit payments were discontinued as of December 1, 2024. The justification for the benefit reduction was based on Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG). On October 21, 2024, measures to terminate the applicant's residence in the communal accommodation assigned to him could not be carried out due to his unknown whereabouts. The applicant was aware that he was obligated to leave the country due to the discontinuation of his asylum proceedings. Absence in the form of going into hiding, i.e., going to an unknown location and thus evading the immigration authorities, constitutes a reason attributable to the applicant himself. It was further stated that until his departure or deportation, the applicant would only receive benefits to cover his basic needs for food, accommodation (including heating), and personal hygiene. It was also pointed out that the reduction in benefits under Section 14 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) is limited to six months. This restriction can be lifted by leaving the country or by providing evidence to establish his identity. Even attempts to clarify his identity, for example, by scheduling and attending appointments at the embassy or consulate in his home country or by obtaining personal documents that would establish his identity, could, in individual cases, lead to the lifting of the benefit restriction.
The instructions on legal remedies attached to the decision were identical to those for the decision of May 27, 2024.
On December 23, 2024, the applicant, represented by legal counsel, filed an objection to the decision of May 27, 2024, and referred to the incorrect legal remedy instructions regarding the objection period.
Also on December 23, 2024, the applicant applied for preliminary legal protection before the Social Court.
In support of his claim, the authorized representative, after reviewing the files, submits in writing on January 9, 2025, that the decision of November 14, 2024, was not served on the applicant; however, the objection of December 23, 2024, also covers the decision of November 14, 2024. Alternatively, an objection is also lodged against this decision.
The court stated that it was unclear on what basis the respondent derived a residency obligation at the address of the collective accommodation. No night-time order or similar document could be found in the social welfare file.
Furthermore, the restriction of benefits under Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) in cases of alleged violations of a residency obligation is unconstitutional. Reference is made to the jurisprudence of the Federal Constitutional Court (BVerfG) regarding the strict requirements of proportionality for sanctions (BVerfG, Judgment of November 5, 2019, Case No.: 1 BvL 7/16). Based on this jurisprudence, the sanction under Section 1a Paragraph 3 AsylbLG must, on the one hand, be suitable, necessary, and proportionate to the alleged duty to cooperate that is subject to the sanction, and on the other hand, the sanctioned person must have the opportunity to avert the reduction of subsistence benefits through their own conduct. Neither of these conditions is met in the present case. The sanction is not suitable for achieving its objective – ensuring the individual's presence at the time of the attempted deportation – because the attempted deportation has already failed. It has also not been proven that a sanction under Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) leads to compliance with the obligation to be present for any further deportation attempts. The person affected by the sanction in the case of a (merely) alleged violation of the obligation to be present has no possibility whatsoever of averting the sanction through their own conduct or of creating the conditions to receive benefits in full.
Furthermore, the provision of Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) is clearly unconstitutional, as it violates the fundamental right to a dignified minimum standard of living guaranteed by Article 1 Paragraph 1 of the Basic Law (GG) in conjunction with the social state principle of Article 20 Paragraph 1 GG, to which there is a direct constitutional entitlement. Reference is made to the decisions of the Federal Constitutional Court of February 9, 2010, Case No.: BvL 1/09, BVerfGE 125, 175, of July 18, 2012, Case Nos.: 1 BvL 10/10 and 1 BvL 2/11, and of November 5, 2019, Case No.: 1 BvL 7/16.
The applicant essentially requests that
the suspensive effect of the objection against the reduction notice of November 14, 2024 be ordered and that the respondent be ordered by way of an interim injunction to grant the applicant cash benefits in the statutory amount from the date of application (December 23, 2024) provisionally and subject to recovery until a legally binding decision on the applicant's objection of December 23, 2024.
The respondent requests that
the application be rejected.
She explains that the restriction of benefits imposed by the decision of November 14, 2024, effective from December 1, 2024, results from the fact that the applicant is subject to an enforceable deportation order as of May 30, 2024. There are no grounds for suspending the deportation.
The applicant's absence does not constitute the grounds for the sanction, nor does it represent the presumed punitive characteristic of the benefit restriction; rather, it is the reason for applying the sanction. The sanction is imposed for illegal, unauthorized residence in Germany. The applicant's deliberate absconding, contrary to the imposed obligation to be present, merely constitutes the reason for their own actions, which—in the sense of the legislation—has led to the measure being effectively unenforceable.
The applicant's view that his regular presence makes it possible to enforce deportation measures again misunderstands the sanctioning principle of Section 1a of the Asylum Seekers' Benefits Act (AsylbLG). The core of the sanction is not absence from the accommodation, but rather the unlawful presence in Germany. Even if one were to accept the argument that, due to his regular presence, the enforcement of deportation measures no longer fails for reasons attributable to the benefit recipient, he would still be subject to the sanction under Section 1a Paragraph 1 of the AsylbLG.
There are no constitutional concerns regarding the benefit restriction in Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG), as there is no right to an unconditional minimum subsistence level. Reference is made to the decisions of the Bavarian State Social Court of November 11, 2016 (Case No.: L 8 AY 29/16 B ER) and the Lower Saxony-Bremen State Social Court of December 17, 2024 (Case No.: L 15 SO 49/24 B ER).
For further details, reference is made to the contents of the court file and the administrative file that was consulted.
II.
The application for preliminary legal protection is admissible under Section 86b of the Social Courts Act (SGG).
It must first be assumed, by way of interpretation, that the applicant, represented by a lawyer, is seeking an order for the suspension of the effect of the objection against the decision on the restriction of benefits (hereinafter also referred to as the reduction decision) of November 14, 2024, pursuant to Section 86b Paragraph 1 No. 2 of the Social Court Act (SGG), because this decision does not have a suspensive effect pursuant to Section 11 Paragraph 4 No. 2 of the Asylum Seekers' Benefits Act (AsylbLG).
In addition, the full payment of cash benefits is being pursued by way of an interim injunction pursuant to Section 86b Paragraph 2 of the Social Court Act (SGG). While the suspension of the reduction notice of November 14, 2024, would render the grant notice of May 27, 2024, ineffective and the granted benefits would have to be paid in full, the cash benefits under Section 3a of the Asylum Seekers' Benefits Act (AsylbLG) were not granted indefinitely or until further notice from June 2024 onwards by the notice of May 27, 2024, but expressly only for the month of June 2024. No written approval was issued for the subsequent months. Insofar as cash benefits were nevertheless paid out in the same amount in the following months, the approval was not granted by means of an administrative act dated May 27, 2024, but rather in another way pursuant to Section 33 Paragraph 2 of the Tenth Book of the German Social Code (SGB X) – namely, as stated in the decision of May 27, 2024, “without application based on tacit monthly renewal” – and thus implicitly by payment (cf. Federal Social Court, judgment of June 17, 2008, file no.: B 8/9b AY 1/07 R, cited according to juris). In the absence of an approval notice for the months from July 2024 to the present, a preliminary injunction would therefore have to be issued to ensure that, if the suspensive effect of the reduction notice of November 14, 2024, is ordered, a provisional back payment of the reduced benefits is also guaranteed.
The applications, as understood in this way, are also admissible; in particular, they are not precluded by the binding effect of the decisions of May 27, 2024 and November 14, 2024, pursuant to Section 77 of the Social Court Act (SGG).
Although an objection was only filed on December 23, 2024, against the decision of May 27, 2024, which included instructions on legal remedies, and thus not within the one-month period stipulated in Section 84 Paragraph 1 Sentence 1 of the Social Court Act (SGG), the one-year period stipulated in Section 66 Paragraph 2 of the SGG applies here. This is because the instructions on legal remedies are incorrect due to their incompleteness (regarding the requirement for complete instructions on legal remedies and the specific requirements, see, for example, the Federal Social Court, judgment of September 27, 2023, Case No.: B 7 AS 10/22, paragraphs 16, 17, and the Hessian State Social Court, decision of November 11, 2024, Case No.: L 4 AY 13/24 ER, paragraphs 32 et seq., both cited according to juris).
According to Section 84 Paragraph 1 of the Social Court Act (SGG), the objection must be submitted in writing, in electronic form according to Section 36a Paragraph 2 of the First Book of the Social Code (SGB I), in lieu of written form according to Section 36a Paragraph 2a SGB I and Section 9a Paragraph 5 of the Online Access Act, or recorded at the office that issued the administrative act, within one month after the administrative act has been communicated to the appellant.
The instructions on legal remedies accompanying the decision of May 27, 2024, state, in addition to the option of submitting an objection in writing or by making a declaration for the record, that the objection can also be submitted via De-Mail with sender confirmation as defined in Section 5 Paragraph 5 of the De-Mail Act to the respondent's De-Mail address. This is one way in which the written form requirement can be replaced pursuant to Section 36a Paragraph 2a No. 3b) of the German Social Code, Book I (SGB I). No mention was made of the other options for replacing the written form requirement under Section 36a Paragraph 2a SGB I, nor of the possibility of submitting an electronic document bearing a qualified electronic signature pursuant to Section 36a Paragraph 2 SGB I.
However, the incomplete list could lead to an error on the part of the person concerned, which could prevent him from filing the legal remedy at all, in a timely manner or in the correct form (Federal Social Court, judgment of 27 September 2023, file no.: B 7 AS 10/22 R, para. 14, cited according to juris).
The reduction notice of November 14, 2024, contained the same defective legal remedy instructions, meaning it has not yet become legally binding and is therefore covered by the objection of December 23, 2024, against the notice of May 27, 2024. Notwithstanding this, the objection against the notice of November 14, 2025, communicated by letter of February 3, 2025, would also have been filed within the one-year time limit applicable to this notice for the reasons stated above.
The applications are also justified to the extent stated.
Regarding the order for the suspensive effect of the reduction notice of November 14, 2024
Pursuant to Section 86b Paragraph 1 Sentence 2 of the Social Court Act (SGG), the court of first instance may, upon application, order the suspensive effect in whole or in part in cases where an objection or appeal does not have suspensive effect. The order for suspensive effect also includes the restoration of the suspensive effect in cases where the authority has ordered immediate enforcement.
The restoration of suspensive effect is determined by weighing the public interest in immediate enforcement against the individual interest in postponing enforcement. Suspensive effect of an objection or appeal is generally granted if the contested decision proves to be manifestly unlawful. Conversely, an overriding interest in immediate enforcement is assumed if the contested administrative act is manifestly lawful. In cases where the prospects of success are uncertain, a general balancing of the interests involved must take place, considering the likelihood of success. In this context, the private interest in suspending enforcement generally carries more weight if the success of the appeal is highly probable. The examination of whether the contested decision is manifestly unlawful or lawful is conducted within the framework of a summary review; this means that a complete and conclusive clarification of the factual and legal situation does not take place.
The reduction notice of November 14, 2024 is already formally unlawful, as it was issued without the hearing required under Section 24 Paragraph 1 of the Tenth Book of the Social Code (SGB X), which is also not dispensable under Paragraph 2.
However, the lack of a hearing alone does not constitute a manifest illegality that outweighs the interest in suspending enforcement, because the violation of this procedural rule is disregarded under Section 41 Paragraph 1 Number 3 of the German Social Code, Book X (SGB X), if the hearing is subsequently held. According to Section 41 Paragraph 3 of the SGB X, this is possible up to the last instance of fact-finding.
However, the decision of November 14, 2024 is also largely unlawful in terms of substantive law, according to the summary review to be carried out.
The applicant is entitled to benefits under Section 1 Paragraph 1 No. 5 AsylbLG after a summary examination of the facts, as he is subject to an enforceable obligation to leave the country and is entitled to basic benefits under Sections 3 and 3a AsylbLG.
However, this entitlement may be restricted according to § 1a AsylbLG.
The respondent based the restriction of benefits on Section 1a Paragraph 3 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG). According to this provision, persons entitled to benefits under Section 1 Paragraph 1 Numbers 4 and 5, for whom deportation cannot be carried out for reasons attributable to themselves, receive only benefits in accordance with Paragraph 1 from the day following the enforceability of a deportation threat or deportation order.
The applicant has fulfilled the requirements for the application.
In the present case, a transfer of the applicant for October 21, 2021, was ordered by letter dated August 22, 2024, which was served on the applicant by registered mail with return receipt requested. However, the transfer could not be carried out. The applicant's booked return flight to Croatia had to be canceled. Therefore, the measure to terminate his stay could not be enforced. The measure was also unenforceable for reasons attributable to the applicant himself. With the transfer announced in writing on August 22, 2024, the applicant was instructed to be available in his assigned room no. K2/1 at his assigned accommodation in 99086 Erfurt, xxx, between 00:00 and 06:00 on October 21, 2024, for the purpose of terminating his stay. In the event that he was unable to remain in his assigned room due to natural needs, he was instructed to identify himself to the police officers present. He was also required to inform the immigration office and the staff present (social workers/social services/security) in writing or verbally of any planned or unplanned absence. In the event of a medical emergency, the immigration office was to be notified immediately. Should the medical emergency occur on the day of the procedure, the applicant was also to inform the police. Furthermore, the immigration office was to be informed immediately in writing (via email, mail, or in person) of any changes in the applicant's identity or residency status. However, on October 21, 2024, the applicant was not found at the accommodation, and his whereabouts were unknown. The applicant did not notify the authorities of his absence, nor was a medical emergency reported. Reasons why the applicant, contrary to the express instructions in the letter of August 22, 2024, was unable to inform the immigration authority and the staff present on site about his absence are neither apparent nor have been presented.
Nevertheless, the benefit restriction is unlawful because it was imposed for the wrong period. According to the clear wording, the benefit restriction under Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) begins on the day following the enforceability of a deportation threat or deportation order (Hessian State Social Court, decision of November 11, 2024, file no.: L 4 AY13/24 BER, para. 40, cited according to juris, confirmed by: Oppermann in: Schlegel/Voelzke, jurisPK-SGB XII, 4th ed., Section 1a AsylbLG, paras. 74, 74.1 (as of January 14, 2025)). In practice, this leads to the situation that justified benefit reductions for past periods can only be enforced in accordance with Sections 45 or 48 of the Tenth Book of the German Social Code (SGB X), and could therefore be rendered ineffective. However, the view that the restriction of entitlement only takes effect from the point in time when there is a reason attributable to the benefit recipient for the non-execution of the deportation measure is incompatible with the wording of the provision (Hessian State Social Court, loc. cit.). Since the restriction of benefits constitutes administrative intervention, such an interpretation of the provision, contrary to its clear wording and to the detriment of those affected, is not permissible.
Consequently, the restriction of benefits pursuant to Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) begins on May 31, 2024, since the order for deportation to Croatia from the decision of February 15, 2024 became enforceable with the rejection of the application for the restoration of the suspensive effect of the action against the rejected asylum application by decision of the Administrative Court of Meiningen on May 30, 2024.
According to Section 14 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG), the restrictions on benefits must be limited to six months. The six-month period begins when the restriction takes effect. The date of notification of the administrative act is not relevant (Adolph in Hailbronner, Ausländerrecht [Immigration Law], Section 14 AsylbLG, Duration of the Restriction of Benefits II.1 (Paragraph 6)).
Based on a start date of May 31, 2024, the benefit restriction is scheduled to end on November 30, 2024. However, a benefit restriction for December 2024 was imposed by a decision dated November 14, 2024, which therefore falls outside the timeframe.
The benefit restriction for December 2024, and presumably also for subsequent months (as explained), is not covered by Section 14 Paragraph 2 of the Asylum Seekers' Benefits Act (AsylbLG). According to this provision, the benefit restriction must continue if the breach of duty persists, provided the legal requirements for the benefit restriction continue to be met.
Since the benefit restriction ends by operation of law, it is necessary to review after this period whether the restriction can be maintained. This means the authority must re-examine whether the breach of duty continues and whether the conditions for a change in entitlement are still met. The phrase "still met" indicates that the past misconduct alone, regardless of whether it has already been corrected or not, no longer justifies a sanction after six months (Adolph, loc. cit., para. 10; see also Oppermann in: Schlegel/Voelzke, jurisPK-SGB XII, 4th ed., § 14 AsylbLG, para. 21 (as of January 14, 2025)). Furthermore, the purpose of the provision implies that misconduct known to the authority cannot be sanctioned for the first time after six months if it no longer exists (Adolph, loc. cit., para. 12).
Section 14, paragraph 2 of the Asylum Seekers' Benefits Act (AsylbLG) does not apply in this case. The transfer, which failed on October 21, 2024, for reasons attributable to the applicant, cannot be sanctioned for the first time in December 2024 after the six-month period expired on November 30, 2024. Nor does it constitute a continuing breach of duty.
The applicant has, however, also fulfilled the criteria for a reduction in benefits pursuant to Section 1a Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG). The fact that the reduction notice of November 14, 2024, is not also based on this provision is irrelevant, as the legal basis can be interchanged.
According to Section 1a Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG), persons entitled to benefits under Section 1 Paragraph 1 No. 5, for whom a departure date and a departure option have been established, are not entitled to benefits under Sections 2, 3 and 6 from the day following the departure date, unless the departure could not be carried out for reasons beyond their control.
For the applicant, as a person entitled to benefits under Section 1 Paragraph 1 Number 5 of the Asylum Seekers' Benefits Act (AsylbLG), a departure date and a means of departure were fixed for October 21, 2024. A return flight to Croatia was booked for the applicant on October 21, 2024. The departure was carried out for reasons explained above, which the applicant is responsible for.
The restriction of benefits pursuant to Section 1a Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) begins on the day following the departure date, in this case October 22, 2024, and ends after six months pursuant to Section 14 Paragraph 1 of the AsylbLG, i.e., on April 21, 2024. The benefit reduction requested by the applicant for December 2024 is therefore covered by the benefit period.
However, according to the wording of the decision dated December 14, 2024, the restriction of benefits was expressly imposed only for December 2024. A tacit reduction of benefits by other means, such as paying out only the reduced benefits, is legally questionable. In the area of administrative intervention, to which the restriction of benefits belongs, stricter requirements regarding legal certainty must be applied.
The person affected must know why and for what period their rights – in this case, the right to full benefits – are being restricted.
The statement "The benefit award is valid for the specified month and is subject to the condition that the circumstances you have stated and on which the award is based do not change or correspond to the facts," together with the statement "If no change occurs, the benefit will continue to be paid automatically on a monthly basis at the amount specified in this notice. If the circumstances and the basis for entitlement change, the legal entitlement to benefits already granted or paid ceases from this point onward. Payments granted beyond this point are made without legal entitlement and must be repaid. This also applies if changes occur during a payment period.", contradicts the fact that the notice imposes a benefit restriction. It also contradicts the fact that the notice states that the restriction of entitlement is limited to six months according to Section 14 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG).
Furthermore, the decision is vague, as it does not clearly state the period for which the restriction is to apply. The specific start date and the temporary end date of the restriction must be expressly stated in an administrative act (Oppermann, loc. cit., para. 20). The operative part of the decision dated November 14, 2024, merely states that cash benefits under the Asylum Seekers' Benefits Act are granted for the month of December 2024 in the total amount of €242.00. A restriction of benefits for other months is not explicitly stated. This is also not unambiguously evident from the reasoning of the decision. It is merely stated that the restriction of benefits pursuant to Section 14 Paragraph 1 of the Asylum Seekers' Benefits Act is limited to six months. However, the decision does not specify for which months, excluding December 2024, the restriction is to apply. Based on the above, the restriction is only possible from October 22, 2024 to April 21, 2024.
Furthermore, the justification for the decision states that the applicant will only be granted benefits to cover his needs for food and accommodation including heating as well as personal and health care until his departure or deportation, i.e. indefinitely.
The restriction of benefits is therefore only sufficiently specific and legally correct for the month of December 2024 and is thus largely lawful.
Whether there are also benefit restrictions pursuant to Section 1a Paragraph 2 of the Asylum Seekers' Benefits Act (AsylbLG) (entry into the area of application of this Act in order to receive benefits under this Act) or Section 1a Paragraph 4 of the AsylbLG (existing third-country protection) is not to be examined here. These restrictions have a different objective and are therefore subject to entirely different conditions than Paragraphs 1 and 3, which require that the recipient of benefits is responsible for the impossibility of departure options or the unenforceability of measures terminating residence. A corresponding reinterpretation of the reduction notice of November 14, 2024, pursuant to Section 43 of the German Social Code, Book X (SGB X), is not possible based on the summary review that can only be undertaken here.
There are no constitutional concerns regarding the remaining benefit reduction in December 2024. The restriction of benefits under Section 1a Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG), like that under Paragraph 3, expressly requires reprehensible conduct and culpability on the part of the benefit recipient. This corresponds to the existing sanctions system in both the Asylum Seekers' Benefits Act and the Second, Third, and Twelfth Books of the German Social Code. Benefit recipients under the Asylum Seekers' Benefits Act, like job seekers, the unemployed, and social assistance recipients, have the power to avoid or terminate a benefit reduction themselves (see in detail Bavarian State Social Court, Judgment of September 10, 2024, Case No.: L 8 AY 11/24, paragraphs 87 et seq., cited according to juris, with reference to Federal Social Court, Judgment of May 12, 2017, Case No.: B 7 AY 1/16 R, paragraph 32).
The strict proportionality requirements are taken into account by the hardship clause § 1a para. 1 sentence 3 AsylbLG, according to which, insofar as special circumstances exist in individual cases, other benefits within the meaning of § 3 para. 1 sentence 1 may also be granted (cf. Hessian State Social Court, decision of 11 November 2024, file no.: L 4 AY 13/24 B ER, para. 38, cited according to juris).
The applicant neither demonstrated nor substantiated a specific personal need that is not covered by the reduced benefits. The general assertion that the constitutionally guaranteed minimum subsistence level is not met is insufficient.
Notwithstanding the foregoing, constitutional concerns regarding Section 1a Paragraph 3 in conjunction with Paragraph 1 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG) preclude a provisional obligation to provide unrestricted benefits in preliminary injunction proceedings (see Higher Social Court for the State of North Rhine-Westphalia, decision of November 8, 2024, file no.: L 20 AY 16/24 B ER, para. 56). The same applies to the benefit reduction under Section 1 Paragraph 1 Sentences and 2 of the AsylbLG, which is also based on the recipient's representation, and all the more so when – as in this case – only a period of eight days is affected. The applicant seeks preliminary injunction from the date of application (December 23, 2024). The benefit restriction is only effective until December 31, 2024.
The order suspending the effect of the objection to the reduction notice of November 14, 2024, is therefore to be issued only from January 1, 2025. Since the restriction may only be imposed for a maximum of six months, the suspension must be ordered until a decision is reached on the objection, but no later than May 31, 2025 (the expiry of the benefit reduction presumably intended by the respondent, starting December 1, 2024).
For the preliminary injunction to pay the benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) in full
Pursuant to Section 86b Paragraph 2 of the Social Court Act (SGG), the court hearing the main proceedings may, upon application, issue a preliminary injunction concerning the subject matter of the dispute, provided that a case under Section 86b Paragraph 1 SGG does not apply, if there is otherwise 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 substantial disadvantages (Sentence 2). The application is well-founded if the court, based on a sufficient factual basis, can affirm a claim for an injunction by establishing prima facie evidence or through official investigation. Such a claim exists if the substantive law in question in the main proceedings is established with a high degree of probability. Furthermore, a ground for an injunction must be affirmed in weighing the risk to the realization of the right on the one hand and the necessity of regulation on the other.
The applicant must therefore demonstrate both the necessity of a preliminary ruling, the so-called ground for the order, and the existence of a right to be secured, the so-called claim for an order (§ 86b para. 2 SGG in conjunction with § 920 para. 2 of the Code of Civil Procedure (ZPO)).
The conditions of Section 86b Paragraph 1 of the Social Court Act (SGG) do not apply. As explained above, the decision of May 27, 2024, granted full cash benefits only for the month of June 2024. For the subsequent months up to November 2024, the full amount was only implicitly granted through payment. Therefore, the decision of May 27, 2024, lacks any regulatory effect for the months following June 2024, which would be revived by the order suspending the effect of the objection to the reduction decision of November 14, 2024. To ensure the payment of the full cash benefits by way of preliminary legal protection, a regulatory order must therefore be issued for the duration of the ordered suspension of the effect of the objection to the reduction decision of November 15, 2024.
The applicant is entitled to full cash benefits for the months of January 2025 to May 2025, as the benefit restriction imposed by the decision of November 14, 2024 is clearly unlawful for the reasons stated above.
Given the obvious illegality of the benefit reduction, which amounts to almost 44% of the full cash benefit, it is unreasonable to expect the applicant to wait for a legally binding decision on their objection. Therefore, grounds exist for an injunction to ensure that the benefits are paid in full until a legally binding decision is reached on the objection, but no later than May 31, 2025. After the six-month period stipulated in Section 14 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG), the benefits must be granted again without restriction, provided the applicant is still residing in Germany at that time and no other grounds for reduction have been met. Therefore, the interim injunction need not extend beyond the period for which the benefits were presumably to be reduced according to the decision of November 14, 2024.
The amount of the full cash benefits is determined by the rates applicable since 1 January 2025 pursuant to Section 3a Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) as amended by the announcement made pursuant to Section 3a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) on 23 October 2024 (Federal Law Gazette I, No. 325 of 29 October 2024).
For the determination of the benefit rates pursuant to Section 3a of the Asylum Seekers' Benefits Act (AsylbLG), benefit level 1 must also be applied by way of preliminary injunction, since the respondent, despite the applicant being a single adult in communal accommodation, had already assigned the applicant benefit level 1 in the grant notice of May 27, 2024, and also in the reduction notice of November 14, 2024, apparently in accordance with the jurisprudence of the Federal Constitutional Court of October 19, 2022 (Case No.: 1 BvL 3/21, cited according to juris) regarding the unconstitutionality of the provision in Section 2 Paragraph 1 Sentence 4 No. 1 AsylbLG. This procedure is also supported by the referral order of the Federal Social Court of September 26, 2024, Case No.: September 26, 2023 (published in the 7th calendar week of 2025). This also corresponds to the recommendations of the Federal Ministry of Labour and Social Affairs, which amend the regulations in Section 3a Paragraph 1 No. 2b and Paragraph 2 No. 2b of the Asylum Seekers' Benefits Act (AsylbLG) based on the decision of the Federal Constitutional Court (Bundestag, Plenary Protocol 20/72, Verbatim Report p. 8440, answer to question 24). Finally, the referral decision of the Federal Social Court of 26 September 2024 (Case No.: B 8 AY 1/22R, cited according to juris, published in the 7th week of 2025) also supports this approach. In its reasoning for the referral decision, the Federal Social Court stated that the Federal Constitutional Court's statements regarding the unconstitutionality of Section 2 Paragraph 1 Sentence 4 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG) as amended on August 13, 2019, must be taken into account equally when assessing the constitutionality of the regulations on the receipt of basic benefits in Section 3a Paragraph 1 No. 2b and Paragraph 2 No. 2b of the Asylum Seekers' Benefits Act (AsylbLG) and lead to the unconstitutionality of the provisions.
The standard rates for needs level 1 according to Section 3a Paragraph 1 No. 2a and Paragraph 2 No. 2a of the Asylum Seekers' Benefits Act (AsylbLG) have been €196.00 and €245.00 per month since January 1, 2025, totaling €441.00. Benefits already paid out since January 2025 are to be credited to the month for which the payment was made.
The provisional granting of benefits in the aforementioned amount is subject to the right of recovery in the event of an adverse outcome in the main proceedings.
The decision on costs is based on Section 193 of the Social Court Act (SGG). Since the respondent's success rate is marginal (eight days of success compared to at least five months and eight days of failure), it is equitable to order the respondent, by way of a corresponding order pursuant to Section 155 Paragraph 1 Sentence 3 of the Administrative Court Procedure Act (VwGO), to bear all of the applicant's necessary extrajudicial costs.
Legal aid is granted pursuant to Section 73a Paragraph 1 Sentence 1 of the Social Court Act (SGG) in conjunction with Sections 114 Paragraph 1 Sentence 1 and 121 Paragraph 2 of the Code of Civil Procedure (ZPO). The sufficient prospect of success is evident from the foregoing explanations.
The following is information on legal remedies.
