DECISION
In the legal dispute
xxx,
Legal representative:
Attorney Sven Adam, Lange Geismarstraße 55,
37073 Göttingen
– Applicant –
against
Altmarkkreis Salzwedel, represented by the District Administrator,
Karl-Marx-Straße 32, 29410 Salzwedel
– Respondent –
The 31st Chamber of the Social Court of Magdeburg decided on March 3, 2025, through its presiding judge, Judge xxx of the Social Court:
The respondent is ordered by way of preliminary injunction to grant the applicant benefits in accordance with Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) at standard benefit level 1 provisionally until December 31, 2025, and subject to the right of recovery from February 18, 2025, until a final and binding decision is reached on the applicant's objection of February 10, 2025, against the respondent's decision of January 14, 2025.
The respondent shall bear the applicant's extrajudicial costs.
The application for legal aid and the appointment of lawyer Adam is rejected due to the claim for reimbursement of costs against the respondent.
REASONS
I.
The parties are arguing in preliminary legal proceedings for higher benefits under the Asylum Seekers' Benefits Act (AsylbLG).
According to his own statements, the applicant entered the Federal Republic of Germany (FRG) from Italy and applied for asylum in June 2017. The Federal Office for Migration and Refugees (BAMF) rejected the asylum application as inadmissible and submitted a transfer request to Italy under the Dublin III Regulation in June 2017. The applicant was deported to Italy. On November 30, 2018, the applicant re-entered the FRG. A subsequent asylum application submitted on December 4, 2018, was rejected by the BAMF as inadmissible in a decision dated February 5, 2021. The applicant holds a temporary suspension of deportation and has been subject to an enforceable deportation order since March 17, 2021.
The applicant first received basic benefits from the respondent on June 22, 2020 (the day of his assignment to the respondent) pursuant to Sections 3, 3a Paragraphs 1 and 2 of the Asylum Seekers' Benefits Act (AsylbLG) at the level of standard benefit rate 2. He is housed in communal accommodation. In his application, he stated that he holds the nationality of Guinea-Bissau. Most recently, the applicant received full basic benefits from January 2021 onwards, as per the decision dated January 19, 2021.
The respondent's immigration office repeatedly requested the applicant (including on February 14, 2022) to cooperate in obtaining identity documents, to submit certificates, documents, and data carriers relevant to determining his nationality, and to provide evidence of efforts to establish his identity. At the hearing regarding the planned reduction of benefits pursuant to Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG), the applicant stated in a personal interview that he did not possess any documents and would not make any effort to obtain them. Due to the applicant's lack of cooperation in obtaining a passport, the respondent initially reduced his benefits for the period from September 22, 2021, to October 19, 2021 (decision of September 27, 2021) and for subsequent periods until June 22, 2024. Due to benefit reductions from March 22, 2023 to June 22, 2023 and from June 23, 2023 to December 22, 2023, lawsuits are pending before this court under file numbers S 31 AY 19/24 and S 31 AY 17/24. By decision dated January 16, 2024, as amended by a decision on the objection dated February 5, 2023 (presumably meant 2024), the respondent, thereby revoking the decision of January 19, 2021, effective September 22, 2021, granted benefits pursuant to Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) from December 23, 2023 to June 22, 2024. Regarding this period, a lawsuit is pending under file number S 31 AY15/24. Upon the applicant's request for preliminary legal protection (S 31 AY 5/24 ER), the court, by (final and binding) decision, ordered the suspension of the enforcement of the lawsuit (S 31 AY 15/24) against the decision of January 16, 2024, as amended by the objection decision of February 5, 2024.
The immigration authority informed the respondent on July 18, 2024, that the applicant had submitted a birth certificate and thus demonstrated a willingness to cooperate in the identity verification process. An authenticity check revealed that the document was unusable. By decision dated July 29, 2024, the respondent granted benefits pursuant to Sections 3 and 3a Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) for the period from June 23, 2024, until further notice. The applicant filed an objection to this decision on August 12, 2024. The applicant withdrew his application for preliminary legal protection, filed with the same court on August 14, 2024, seeking benefits at the level of standard benefit rate 1 (S 31 AY 42/24 ER), due to employment commencing on August 15, 2024, and limited to December 20, 2024 (employment contract dated July 29, 2024), and the resulting income sufficient to cover his needs. By decision dated December 23, 2024, the respondent revoked the decision of July 29, 2024, effective September 1, 2024, demanded repayment of the benefits paid in September 2024, and rejected the applicant's objection as unfounded by decision dated December 23, 2024. The applicant then filed a lawsuit against this decision with the same court (S 31 AY 8/25). With the consent of the parties involved, the proceedings were suspended by decision of 28 February 2025 due to pending proceedings before the Federal Constitutional Court by the referral decision of the Federal Social Court under file number B 8 AY 1/22 R.
By letter dated November 14, 2024, the employer terminated the employment relationship within the probationary period, effective November 29, 2024. In November 2024, the applicant received income of €2,121.48 gross / €1,242.03 net (payroll statement dated December 12, 2024).
On January 7, 2025, the applicant applied for benefits under the Asylum Seekers' Benefits Act (AsylbLG) and, during a personal interview on January 14, 2025, stated that he would soon be returning to work. He indicated that he could sign an employment contract starting January 15, 2025. By decision dated January 14, 2025, the respondent granted benefits pursuant to Sections 3 and 3a of the AsylbLG, effective January 1, 2025, until further notice, in the amount of €397.00 per month, against which the applicant filed an objection on February 10, 2025.
The applicant also filed an application for preliminary legal protection with the Magdeburg Social Court on February 18, 2025, by means of a letter from his attorney dated February 10, 2025. The applicant seeks the granting of benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) at standard benefit level 1. The applicant argues that the provisions of Sections 3 and 3a, paragraph 1, no. 2b, and paragraph 2, no. 2b of the AsylbLG are manifestly unconstitutional, as they violate 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 welfare principle of Article 20, paragraph 1 of the Basic Law (GG), and contravene the general principle of equality. In addition to numerous first-instance decisions by social courts in preliminary injunction proceedings, he also referred to the decision of the Federal Constitutional Court (BVerfG) of October 19, 2022, published on November 23, 2022, under file number 1 BvL 3/21. In that decision, the BVerfG declared Section 2 Paragraph 1 Sentence 4 Number 1 of the Asylum Seekers' Benefits Act (AsylbLG) incompatible with Article 1 Paragraph 1 of the Basic Law (GG) in conjunction with the social welfare principle enshrined in Article 20 Paragraph 1 GG, insofar as a single adult is only granted a standard allowance at the level of standard allowance level 2. The BVerfG's decision is also applicable to the provisions of Section 3a Paragraph 1 Number 2b and Section 3a Paragraph 2 Number 2b of the AsylbLG. His constitutionally guaranteed minimum subsistence level is currently no longer secure.
The applicant requests that
the respondent be ordered, by way of an interim injunction, to grant the applicant, provisionally and subject to the right of recovery, the requested benefits in the constitutionally compliant amount at standard benefit level 1 from the date of receipt of this application by the court, until a final and binding decision is reached on the applicant's objection of 10 February 2025 against the respondent's decision of 14 January 2025, taking into account the legal opinion of the court.
The respondent requests that
the application be dismissed.
The respondent argues that there is no entitlement to higher benefits. For individuals living in communal accommodation, the provision of benefits for necessary personal needs and other necessary expenses is based on standard benefit level 2 according to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG). No other legal provision exists. The decision of the Federal Constitutional Court (BVerfG) does not apply, as the applicant does not receive benefits under Section 2 Paragraph 1 Sentence 4 No. 1 of the AsylbLG. Regarding a new employment relationship that was promised on January 14, 2025, the applicant stated during a personal interview on February 27, 2025, that an employment contract had not yet been concluded and he had not worked.
At the court's request, the applicant stated that there was currently no employment relationship.
For further details of the parties' submissions and the facts of the case, reference is made to the administrative files of the respondent and the court files S 31 AY5/24 ER, S 31 AY42/24 ER, S 31 AY15/24, S 31 AY17/24, S 31 AY19/24 and S 31 AY 8/25, which were the subject of the decision-making process.
II.
The application for preliminary legal protection is admissible and well-founded.
1. Pursuant to Section 86b Paragraph 2 of the Social Court Act (SGG), the court may 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 would hinder or substantially prevent the applicant from exercising a right. 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. According to Section 86b Paragraph 2 Sentence 4 of the SGG in conjunction with Section 920 Paragraph 2 of the Code of Civil Procedure (ZPO), the prerequisite for issuing a preliminary injunction is the demonstration of both a claim for an injunction (i.e., a substantive claim for performance in the main proceedings) and grounds for an injunction (i.e., the urgency of the regulation to avert substantial disadvantages). A claim for an injunction and grounds for an injunction are deemed credible if their factual prerequisites exist with a high degree of probability (cf. Keller in: Meyer-Ladewig/Keller/Leitherer/Schmidt, SGG, 13th edition 2020, § 86b para. 41).
The more serious the threatened violation of fundamental rights and the higher the probability of its occurrence, the more intensive the factual and legal analysis of the matter must be, even in preliminary injunction proceedings. If a clarification of the factual and legal situation commensurate with the threatened violation of fundamental rights is not possible in expedited proceedings—for example, because it would require further factual investigations that cannot be carried out within the short time available—a decision may be made based on a balancing of interests (Federal Constitutional Court).<BVerfG> , Decision of 14 March 2019 – 1 BvR 169/19 – juris Rn. 15 with further references).
Taking into account the necessary balancing of interests, the applicant has credibly demonstrated a claim to an injunction.
The applicant lives in communal accommodation within the meaning of Section 53 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) and indisputably receives benefits under Sections 3 and 3a of the AsylbLG. However, in light of the decision of the Federal Constitutional Court (BVerfG) of October 19, 2022, he is entitled to these benefits to the extent of standard benefit level 1. In its decision of October 19, 2022 – 1 BvL 3/21 – published on November 23, 2022, the Federal Constitutional Court ruled that special benefit level 2 for a single adult housed in communal accommodation, as provided for in the parallel provision of Section 2 Paragraph 1 Sentence 4 No. 1 of the AsylbLG, is incompatible with the Basic Law (Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1 of the Basic Law) (fundamental right to a guaranteed minimum standard of living that ensures human dignity). The legislator's assumption that it is possible and reasonable for benefit recipients to utilize the opportunities for shared resources offered in accommodations, and to consider the resulting savings when calculating their subsistence needs (see BT-Drs. 19/10052, pp. 24 et seq.), is, in principle, not objectionable under constitutional law according to the principle of subsidiarity. However, this obligation to share resources is only proportionate in the narrower sense if it is sufficiently ensured that the conditions for fulfilling these conditions and thus achieving corresponding savings actually exist in the communal accommodations. For this to be the case, there must be explicit indications of such conditions in the context of shared accommodation (§ 53 AsylG) or reception facilities (§ 44 AsylG) (see BVerfG of 19 October 2022 – 1 BvL 3/21 – juris para. 74 et seq.).
The Federal Constitutional Court has ordered a transitional arrangement according to which, for single adults who are housed in communal accommodation, a standard allowance in the amount of standard allowance level 1 instead of 2 is recognized under the conditions of Section 2 Paragraph 1 Sentence 1 and Sentence 4 No. 1 AsylbLG.
The Chamber is convinced that this reasoning of the Federal Constitutional Court also applies to the parallel provisions for benefit recipients in collective accommodations under Section 3a of the Asylum Seekers' Benefits Act (AsylbLG), since it is highly probable that Section 3a Paragraph 1 No. 2b AsylbLG and Section 3a Paragraph 2 No. 2b AsylbLG are also unconstitutional (see Frerichs in: Schlegel/Voelzke, jurisPK-SGB XII, 3rd edition, Section 3a AsylbLG (as of November 28, 2022), paragraphs 44-18). The circumstances are comparable, as there is no evidence that actual savings are regularly achieved or could be achieved through shared resources in the collective accommodations.
The Federal Government, through the Federal Ministry of Labour and Social Affairs (BMAS), has already announced that the Federal Constitutional Court's ruling should also be applied to the granting of basic benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG). The reasoning underlying the unconstitutionality of the provision—namely, that there is no credible evidence that savings are regularly achieved or can be achieved in collective accommodations through shared resources that would justify a 10% reduction in benefits—is of a fundamental nature. The BMAS therefore assumes that the ruling also applies to the parallel provisions in Section 3a, paragraph 1, number 2, and paragraph 2, number 2, of the AsylbLG for benefits under the basic benefits scheme. Individual states (e.g., Berlin) have already stipulated that in the future, all single adults entitled to benefits under the Asylum Seekers' Benefits Act (AsylbLG) who are housed in communal accommodation, a reception center, or, if applicable, emergency accommodation, are entitled to the standard benefit rate or the standard benefit level for single adults according to standard benefit level 1, provided they do not live as young adults in their parents' household (regardless of the type of accommodation) (see, for example, the circular from the Berlin Senate Department for Integration, Labour and Social Affairs, Soz No. 01/2023, on the implementation of Sections 2 and 3, 3a of the Asylum Seekers' Benefits Act (AsylbLG)).
The 8th Senate of the Federal Social Court (BSG) has now suspended proceedings B 8 AY 1/22 R and referred the question to the Federal Constitutional Court as to whether Section 3a Paragraph 1 No. 2b of the Asylum Seekers' Benefits Act (AsylbLG) and Section 3a Paragraph 2 No. 2b of the AsylbLG, insofar as a single adult living in communal accommodation is only granted a benefit at level 2, are compatible with Article 1 Paragraph 1 of the Basic Law in conjunction with the social welfare principle from Article 20 Paragraph 1 of the Basic Law.
Furthermore, grounds for an injunction exist. Given the prevailing prospects of success in the main proceedings, as outlined above, and with reference to the Federal Constitutional Court's decision of October 19, 2022, a restrictive jurisprudence focused on demonstrating urgency is not warranted in preliminary legal protection (Frerichs, loc. cit., para. 44.19). The bank statements requested from the respondent by the initial order of February 19, 2025, served solely to verify the (continued) receipt of wages. However, the applicant is currently not receiving any income from employment. Should the applicant resume such employment, the respondent must proceed – as has already been done in the past – in accordance with Section 48 Paragraph 1 Sentence 2 No. 3 of the German Social Code, Book X (SGB X).
2. The decision on costs is based on a corresponding application of Section 193 of the Social Court Act (SGG).
3. The application for legal aid was to be rejected because, based on the court's cost decision, the applicant has a claim for reimbursement against the respondent, which is due and enforceable. According to Section 73a Paragraph 1 Sentence 1 of the Social Court Act (SGG) in conjunction with Section 114 of the Code of Civil Procedure (ZPO), a party who, according to their personal and financial circumstances, cannot afford the costs of litigation, receives legal aid upon application if the intended legal action or defense offers a reasonable prospect of success and does not appear frivolous. It is irrelevant whether the need for legal protection for a legal aid application is already lacking due to the claim for reimbursement of costs (cf. Thuringian Higher Social Court, decision of 26 April 2012 – L 8 SO 58/12 ER) or whether the claim for reimbursement of costs constitutes assets within the meaning of Section 115 Paragraph 3 Sentence 1 of the German Code of Civil Procedure and thus the neediness within the meaning of the law ceases to exist (cf. Saxony-Anhalt Higher Social Court, decision of 17 December 2008 – L 5 B 414/07 AS).
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