DECISION
In the legal dispute
xxx,
– Applicant –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55,
37073 Göttingen
against
City Administration of Trier,
represented by the Mayor,
Am Augustinerhof 3,
54290 Trier
– Respondent –
The 3rd Chamber of the Social Court of Trier decided on March 17, 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 11 February 2025 until a decision is reached on the objections to the decisions of 13 February 2025 and 27 February 2025 or until the applicant is transferred, but no later than 25 April 2025, taking into account benefits already received.
2. The respondent shall bear the applicant's extrajudicial costs.
3. The applicant is granted legal aid for the exercise of her rights in the first instance, with the appointment of lawyer Sven Adam, Göttingen, under the conditions applicable to 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 November 1971, is an Egyptian citizen. She entered Austria on August 7, 2024, with a request for asylum and submitted a formal asylum application on August 22, 2024. For the purpose of conducting the asylum procedure, she was granted a temporary residence permit until February 22, 2025; a certificate of residence was subsequently issued until April 25, 2025.
The Federal Office for Migration and Refugees (BAMF) rejected the applicant's asylum application as inadmissible by decision dated November 18, 2024. In its decision, the BAMF determined that there were no grounds for prohibiting deportation under Section 60, paragraphs 5 and 7, sentence 1 of the Residence Act (AufenthG) and ordered the applicant's deportation to Austria. 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 12 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 Austria was responsible for processing the asylum application based on the issued visa, pursuant to Article 12, paragraph 2 of the Dublin III Regulation. The BAMF stated that no grounds for prohibiting deportation existed. The applicant must be informed that upon entering the territory of the Dublin Member States, she cannot simply choose the state that will process her asylum application. This is governed by the criteria for determining responsibility under the Dublin III Regulation, according to which Austria is responsible for processing her asylum application. The applicant is advised of the possibility of voluntary departure, provided this is coordinated with all relevant authorities. The deportation order to Austria is based on Section 34a Paragraph 1 Sentence 1 of the Asylum Act.
By a decision of the State of Rhineland-Palatinate, Supervisory and Service Directorate, dated 07.11.2024, the applicant was assigned to the area of responsibility of the respondent, who accommodated her in the communal accommodation “Eurener Straße 50” from 03.12.2024.
On December 10, 2024, the applicant received a cashier's check for €350 from the respondent.
On February 11, 2025, the applicant filed an objection to the granting of benefits since December 3, 2024.
On the same day, she applied to the court for an interim injunction, requesting the provisional granting of benefits.
By decision dated February 13, 2025, the respondent granted the applicant ongoing benefits pursuant to Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) for the period from December 3, 2024, until February 20, 2025 (current validity of the residence permit). According to the decision of the Federal Office for Migration and Refugees (BAMF) dated November 18, 2024, the asylum application was rejected as inadmissible pursuant to Section 29 Paragraph 1 No. 1 of the Asylum Act (AsylG), and deportation to Austria was ordered pursuant to Section 34a Paragraph 1 Sentence 1 of the Asylum Act. The BAMF's decision also (at least implicitly) established that the applicant was legally and factually able to leave the country. Therefore, she falls under the exclusion from benefits pursuant to Section 1 Paragraph 4 Sentence 1 No. 2 of the Asylum Seekers' Benefits Act (AsylbLG), and bridging benefits in the amount of the benefits under Section 1a Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) are provided. She has already received a check for €350.00, which will be taken into account in the payment.
The respondent calculated the amount of the approved benefits as follows:
For December 2024 (03.12.2024-31.12.2024 = 29 days):
| Accommodation and heating needs (AsylbLG) | |
| Basic rent | 320,00 € |
| Net rental costs | 320,00 € |
| Approved rental costs for 29 days | 309,33 € |
| Needs according to the Asylum Seekers' Benefits Act (AsylbLG) | |
| Benefits according to § 1a AsylbLG (€242.00 *29/30) | 233,93 € |
| Total requirement | 543,26 € |
For January 2025:
| Accommodation and heating needs (AsylbLG) | |
| Basic rent | 320,00 € |
| Net rental costs | 320,00 € |
| Needs according to the Asylum Seekers' Benefits Act (AsylbLG) | |
| Benefits according to § 1a AsylbLG | 232,00 € |
| Total requirement | 552,00 € |
For February 2025 (01.02.2025-20.02.2025 = 20 days):
| Accommodation and heating needs (AsylbLG) | |
| Basic rent | 320,00 € |
| Net rental costs | 320,00 € |
| Approved rental costs for 20 days | 213,33 € |
| Needs according to the Asylum Seekers' Benefits Act (AsylbLG) | |
| Benefits according to § 1a AsylbLG (232.00 € *20/30) | 154,67 € |
| Total requirement | 368,00 € |
By decision dated February 27, 2025, the respondent granted the applicant ongoing benefits under the Asylum Seekers' Benefits Act (AsylbLG) from February 21, 2025, until further notice, but initially due to the limited validity of the residence permit until April 25, 2025, pursuant to Section 1a of the AsylbLG. The amount of the benefits is €552.00 for the months of February and March 2025, and €460.00 for the month of April (April 1-25).
The applicant lodged an objection against the decisions of 13 February 2025 and 27 February 2025, arguing that she was entitled to benefits in accordance with Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) during the relevant benefit periods, as the reduction in benefits was unconstitutional and contrary to European law.
The applicant declared her application for an interim injunction settled to the extent of the benefits already granted, but maintained her application for the remaining amount, arguing that it violated constitutional concerns regarding Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG). She contended that
the provision infringed upon 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, she argued, gave rise to a direct constitutional entitlement to benefits, which must secure physical and socio-cultural existence. The state, she asserted, was obligated, within the framework of its mandate to protect human dignity and in fulfillment of its social welfare mandate, to ensure that the material prerequisites for a life of human dignity were available. Section 1, paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) completely excludes those affected from receiving benefits and thus contains a generalized restriction that is incompatible with the constitutional requirements as defined 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 applies in her case. 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 factually possible.
The applicant most recently (by letter dated March 3, 2025) expressly requests that
the respondent be ordered by way of an interim injunction to grant her provisionally and subject to the right of recovery until a final and binding decision is reached on her objection of February 11, 2025 against the de facto granting of benefits in the form of the decision of February 13, 2025 and the objection of March 3, 2025 against the decision of February 27, 2025 in the amount of basic benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) in the standard benefit level 1 from February 11, 2025.
The respondent requests that
the application be rejected.
The respondent argues that
the applicant has no entitlement to higher benefits (at least in preliminary injunction proceedings). It grants benefits in accordance with the statutory provisions. As outlined in the contested decisions, the applicant fulfills the substantive requirements of Section 1 Paragraph 4 Sentence 1 No. 2 of the Asylum Seekers' Benefits Act (AsylbLG). The respondent also interprets the provision in a manner consistent with constitutional and European law. Specifically, Section 1 Paragraph 4 Sentence 6 of the AsylbLG was interpreted broadly within the remaining scope of discretion with regard to the time frame, and no limitation to the two-week period generally provided for by the wording of the law was imposed. The bridging benefits are granted until the time of voluntary departure or transfer to the Member State responsible for conducting the asylum procedure. The time limit is solely determined by the validity of the certificate of enforceable obligation to leave issued by the immigration authority. Whether the current residence permit will be extended is not within her decision-making authority, and she is unable to make a prediction in this regard. The bridging benefits are not provided solely as in-kind benefits, but as cash benefits. The applicant's provision of housing and food is guaranteed. The satisfaction of her most basic needs is ensured – without time limit – in the form of cash benefits. Clarification of the outstanding legal issues within the framework of the ongoing objection and potential legal proceedings is reasonable.
With her application for an interim injunction, the applicant, submitting a declaration of her personal and financial circumstances, requested legal aid and the appointment of attorney 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 based on Section 86b Paragraph 2 of the Social Courts Act (SGG) is admissible and well-founded. The applicant is to be granted provisional benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG).
Pursuant 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, provided that no case exists for ordering or restoring suspensive effect or immediate enforcement pursuant to Section 86b Paragraph 1 SGG, 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 this case, a regulatory order pursuant to Section 86b Paragraph 2 Sentence 2 of the Social Court Act (SGG) is appropriate, as the applicant seeks the preliminary establishment of a legal position. An order suspending the effect of the objections is not possible in this case. This would neither achieve the applicant's objective of legal protection nor improve her legal position, because no prior (higher) benefit award exists for the period in dispute here, from February 11, 2025, to April 25, 2025.
The desired legal protection can be granted if the regulation appears necessary, particularly in ongoing legal relationships, to avert significant disadvantages, prevent imminent violence, or for other reasons. For this to be the case, 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 an 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 in the main proceedings must be probable and must not be resolved or anticipated by the preliminary injunction. Therefore, if the examination conducted in the expedited proceedings already reveals that the right asserted by the applicant does not exist in her favor, a preliminary injunction is also not possible under Section 86b Paragraph 2 of the Social Court Act (SGG), because a legally secure and worthy legal position is then lacking.
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.
Measured against this standard, both a claim for an injunction and grounds for such an injunction exist. Given the factual and legal situation, it must be assumed that the objections or a lawsuit on the merits have a clear prospect of success, which, due to the relevance of fundamental rights and the referral already decided by the Federal Social Court (BSG) to the European Court of Justice (ECJ), cannot be to the detriment of the applicant in the context of a preliminary ruling.
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 her asylum application by the Federal Office for Migration and Refugees (BAMF) decision of November 18, 2024, she is a foreign national subject to enforceable deportation. She is also in need of assistance (cf. Section 7 Paragraph 1 Sentence 1 AsylbLG), as she has no income or assets.
Whether the respondent is entitled to restrict the benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) to the amount provided for in Section 1a of the AsylbLG, in accordance with Section 1 Paragraph 4 Sentence 1 No. 2 of the AsylbLG, is to be considered open in light of the referral decision of the Federal Social Court (BSG), in particular it is questionable whether the benefit restrictions chosen by the respondent are in conformity with European law. By decision of 25 July 2024 – B 8 AY 6/23 R – the German Federal Social Court (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 in case of illness, as well as, depending on the circumstances of the individual case, clothing and household goods, covers the minimum level described in Article 17(2) and (5) of Directive 2013/33/EU. The Court is convinced that the question of compatibility with EU law arises in the same way when a restriction of benefits is now based on Section 1(4), sentence 1, no. 2 of the Asylum Seekers' Benefits Act (AsylbLG). Compliance with EU law in this sense is not achieved by the respondent's decision not to impose a (complete) exclusion of benefits and not merely to grant bridging benefits for a period of 14 days. Compared to the benefits stipulated in Section 3 of the Asylum Seekers' Benefits Act (AsylbLG), the benefits granted by the respondent are also limited. The legality of such a limitation of benefits has been referred to the European Court of Justice for a ruling.
Furthermore, the court cannot find that the applicant meets the substantive requirements of 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 decision of November 18, 2024, does not contain a (positive) finding by the Federal Office for Migration and Refugees (BAMF) that departure is legally and practically possible. While the BAMF determined that no prohibitions on deportation exist under Section 60, paragraphs 5 and 7 of the Residence Act (AufenthG) and ordered deportation pursuant to Section 34a, paragraph 1 of the Asylum Act (AsylG), it is doubtful that this also constitutes a finding by the BAMF 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 (AufenthG) stipulate different factual prerequisites than the actual and legal impossibility of departure (see also Section 60a, paragraph 2 of the Residence Act, which stipulates the factual and legal possibility), the wording of Section 1, paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) expressly requires a positive finding with the specified content. The deportation order under Section 34a, paragraph 1 of the Asylum Seekers' Benefits Act (AsylbG), which, according to sentence 1 of the provision, is issued as soon as it is established that deportation can be carried out, does not replace this finding. Otherwise, Section 1, paragraph 4, sentence 1, no. 2 of the Asylum Seekers' Benefits Act (AsylbLG) 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 factual prerequisites multiple times in one provision. The court therefore understands the finding by the Federal Office for Migration and Refugees (BAMF) stipulated in Section 1 Paragraph 4 Sentence 1 No. 2 of the Asylum Seekers' Benefits Act (AsylbLG) as an independent element of the offense, which is not apparent to date. Considering the normative differences, there is no indication that this element merely serves a clarifying function.
Furthermore, the Chamber has 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 provision 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 Paragraph 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 correspond to an adequate standard of living, guaranteeing the subsistence and the protection of the physical and mental health of applicants.
The applicant, by virtue of her 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 be commensurate with 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 questionable 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 her obligations to provide information and report. Nor has she submitted a subsequent application pursuant to Article 2(q) of Directive 2013/32/EU. Rather, the applicant did not file an asylum application in Austria. Consequently, no such application has been definitively rejected; she did not expressly withdraw such an application, nor was it rejected by the asylum authority after she had tacitly withdrawn it. Therefore, in this specific case, the factual prerequisites under Article 20(1) of Directive 2013/33/EU, which could justify the imposition of benefit restrictions or withdrawal, are not met.
The serious doubts regarding the conformity of Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) with European law, which are sufficiently substantiated by the referral decision of the Federal Social Court (BSG), must, in the present case, within the framework of the required balancing of interests to grant effective preliminary legal protection, be decided in favor of the applicant and lead to a preliminary obligation on the part of the respondent to provide benefits (BeckOK/Wahrendorf, SGG, § 86b Rn. 28, 30). This follows in particular from the function of the requested benefits as securing subsistence (cf. Federal Constitutional Court, decision of 18 July 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 regulatory order is intended to avert an existential disadvantage.
The applicant is to be granted benefits provisionally from the date of application to the court, February 11, 2025, until a decision is reached on the objections or the applicant is transferred, but no later than April 25, 2025. The decision of February 27, 2025, limits the benefits to this date; according to the applicant's request, this duration of benefits is the subject of the present proceedings.
The decision on costs follows from the corresponding application of Section 193 Paragraph 1 of the Social Court Act (SGG).
The decision is final and not subject to appeal (§ 172 para. 3 no. 1 SGG). The minimum amount in dispute for an appeal is not reached, as the applicant can only claim the difference between the benefits already granted and partially paid to her and the benefits under §§ 3, 3a AsylbLG for the period in dispute in the preliminary injunction proceedings from 11 February 2025 to 25 April 2025, totaling €554.80.
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 herself. 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).
