DECISION
In the legal dispute
xxx,
– Applicant –
Legal representative:
Attorney Sven Adam, Lange Geismarstraße 55,
37073 Göttingen
against
Konz Municipal Administration, represented by the Mayor,
Am Markt 11, 54329 Konz
– Respondent –
The 3rd Chamber of the Social Court of Trier decided on March 25, 2025, through the Vice President of the Social Court xxx:
1. The suspensive effect of the objection of 13 March 2025 against the decision of 12 February 2025 is ordered. The further application is rejected.
2. The respondent shall bear half 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 April/June 20xx, is a Sudanese citizen. He entered the federal territory on September 19, 2024, with a request for asylum and submitted a formal asylum application on October 7, 2024.
The applicant was assigned to the Trier-Saarburg district for reception and accommodation from December 3, 2024, which ordered his accommodation in the communal accommodation xxx in Konz. From June 3, 2025, the applicant was assigned to the municipality of Schweich (decision of the Trier-Saarburg district dated November 22, 2024).
By decision dated December 2, 2024, the respondent granted the applicant ongoing benefits under the Asylum Seekers' Benefits Act (AsylbLG) from December 3, 2024, to June 30, 2025, in the amount of €769.47 for December 2024. The amount of the benefits is calculated as the difference between the applicant's income and their needs. The amounts are paid monthly in advance to the listed recipients, provided the applicant's personal and financial circumstances remain unchanged. If the start of the assistance falls within a month, the entitlement is determined taking into account the corresponding pro rata amounts. For December 2024 (pro rata), the respondent calculated the benefits as follows:
| Needs assessment | |||
| Sociocultural subsistence level | 204,00 € | 197,20 € | |
| Physical minimum standard of living | 256,00 € | 247,47 € | |
| Accommodation costs | |||
| Base rent | 286,00 € | 276,47 € | |
| Heating costs excluding hot water costs | 50,00 € | 48,33 € | |
| Income to be used | 0,00 € | ||
| Benefit granted | 29 days | 769,47 € | |
The Federal Office for Migration and Refugees (BAMF) rejected the applicant's asylum application as inadmissible by decision dated January 16, 2025. 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 60 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 deportation order to Italy was based on Section 34a Paragraph 1 Sentence 1 of the Asylum Act.
By letter dated February 12, 2025, the respondent informed the applicant that, based on the decision of the Federal Office for Migration and Refugees (BAMF) dated January 16, 2025, there was no longer any entitlement to asylum benefits pursuant to Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG). According to Section 1 Paragraph 4 Sentence 2 of the AsylbLG, bridging benefits could be granted until departure, but for a maximum period of two weeks. The applicant was referred to the respondent's asylum caseworker to claim these bridging benefits. The applicant denies having received any knowledge of the letter.
On February 17, 2025, and March 7, 2025, the respondent's asylum caseworker purchased food for the applicant. On February 17, 2025, the food was valued at €35.92, and on March 7, 2025, the respondent paid the applicant €72.35.
On March 13, 2025, the applicant filed an objection against the granting of benefits under the Asylum Seekers' Benefits Act (AsylbLG) for the period from March 1, 2025, on which a decision has apparently not yet been made.
On the same day, he applied to the court for preliminary legal protection. He based his application on constitutional concerns regarding Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG), arguing that
the provision 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 asserted, gives rise to a direct constitutional entitlement to benefits, which must secure physical and socio-cultural existence. Within the framework of its mandate to protect human dignity and in fulfilling 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 AsylbLG completely excludes those affected from 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 cannot be relativized, even in the context of migration policy. Furthermore, the exclusion from benefits under Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) does not pursue a legitimate aim, as it is not intended to enforce any obligations to cooperate under asylum or residency law. Rather, it is clearly about the repressive sanctioning of individual behavior by those affected, in order to curb unwanted secondary migration. Moreover, 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.
In addition, the requirements of Section 1 Paragraph 4 of the AsylbLG are not fulfilled, as the Federal Office for Migration and Refugees (BAMF) has not determined that departure is legally and practically possible.
The applicant requests that
the respondent be ordered, by way of an interim injunction, to grant him provisionally and subject to the right of recovery until a legally binding decision is reached on his objection of 13 March 2025 against the de facto refusal of benefits, taking into account the legal opinion of the court, the requested benefits in the statutory amount for the period from 16 March 2025 to 3 June 2025.
Alternatively,
to order the suspensive effect of his objection of 13 March 2025 against the decision of 12 February 2025.
The respondent clearly requests that
the application be rejected.
She argues that
the applicant's asylum application was rejected as inadmissible by the Federal Office for Migration and Refugees (BAMF) on January 16, 2025, and that deportation to Italy was ordered. According to Section 1 Paragraph 4 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG), this means there is no entitlement to benefits under this law. Bridging benefits in the form of in-kind benefits can be granted for a period of two weeks. These in-kind benefits were granted to the applicant; his asylum caseworker purchased the food items requested by the applicant, which were then provided to him as in-kind benefits.
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 applicant's request, expressly formulated as a request for performance in the main application, is unsuccessful; his request must be granted in accordance with the alternative request for the suspensive effect of the objection to the decision of 12 February 2025 pursuant to Section 86b Paragraph 1 Sentence 1 No. 2 of the Social Courts Act (SGG).
The applicant seeks at least the continued, at least provisional, payment of full benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG). The applicant can achieve this objective by obtaining an order suspending the effect of his objection of March 13, 2025, against the decision of February 12, 2025; a subsequent preliminary injunction pursuant to Section 86b Paragraph 2 of the Social Court Act (SGG) is not required. The corresponding main application must therefore be rejected.
Pursuant to Section 86b Paragraph 1 Sentence 1 No. 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 respondent granted the applicant ongoing benefits under the Asylum Seekers' Benefits Act (AsylbLG) for the period from December 2, 2024 to June 30, 2025, by decision dated December 2, 2024. This is a continuing administrative act; the objection to the apparent partial withdrawal of this decision by the decision of February 12, 2025, has no suspensive effect.
Benefits under the Asylum Seekers' Benefits Act (AsylbLG), like social assistance benefits under Chapter 3 of Book XII of the German Social Code (SGB XII), are generally not pension-like, long-term benefits. Based on the jurisprudence of the Federal Administrative Court (BVerwG) regarding benefits under the Federal Social Assistance Act, subsistence assistance in these situations is viewed as aid in a specific emergency situation. The BVerwG (judgment of November 30, 1966 – VC 29.66 –, juris) assumed that the situation of the person seeking assistance is constantly changing and that the assistance must be adapted to this situation, requiring adjustments almost daily; the social assistance provider is presented with a new case for intervention virtually every day. Whether the administration actually regulates the case for assistance according to this principle and grants assistance only for short periods, e.g., one week, based on a constantly repeated review of the prerequisites for its granting (cf. Federal Administrative Court, judgment of January 18, 1979 – 5 C 4/78 –, juris), or whether and to what extent a benefit award constitutes a continuing administrative act, must be determined by interpretation according to the standard of an objective recipient (cf. with further references Federal Social Court, judgment of May 27, 2014 – B 8 SO 26/12 R –, juris) and verified according to general rules of interpretation (Federal Social Court, judgment of December 9, 2008 – B 8/9b SO 11/07 R –; judgment of June 17, 2008 – B 8/9b AY 1/07 R –, both juris). The objective regulatory content of a decision in the area of the Asylum Seekers' Benefits Act (AsylbLG) can be limited to a period of one month if the approval is granted, for example, "from July 1, 2003", but the approval is limited to that month and is accompanied by a corresponding addition (BSG, Judgment of June 17, 2008 – B 8/9b AY 1/07 R -, juris).
Measured against this standard, the respondent, in its decision of December 2, 2024, granted benefits from December 3, 2024, to June 30, 2025, and clearly did not limit its decision solely to the month of December 2024. While it did not include a calculation for the period from January 2025 onwards with the decision, the decision does not indicate any limitation of its scope in the sense that a grant for the months after December 2024 was still pending. The decision lacks a conceivable addendum stating that a decision for subsequent months (even if circumstances remain unchanged) is still pending; a decision by payment in the sense of a tacit decision pursuant to Section 33 Paragraph 2 of the German Social Code, Book Ten (SGB X), in the event of unchanged circumstances, is not announced (cf. Federal Social Court, Judgment of June 17, 2008 – B 8/9b AY 1/07 R –, juris). From the perspective of a reasonable recipient, the decision of December 2, 2024, constituted a continuing administrative act limited to June 30, 2025. In the absence of any other information from the respondent, the applicant, upon reasonable consideration of the circumstances, could assume that he would be granted benefits under the Asylum Seekers' Benefits Act (AsylbLG) for the entire duration of the period specified in the decision.
This original, unreduced benefit award is contradicted by the decision of February 12, 2025, which revokes the benefit award, at least in part. Pursuant to Sections 86a Paragraph 2 No. 4 of the Social Court Act (SGG) and 11 Paragraph 4 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG), the applicant's objection to this decision has no suspensive effect.
The decision as to whether, as an exception, the court will nevertheless order the suspension of enforcement pursuant to Section 86b Paragraph 1 Sentence 1 No. 2 of the Social Court Act (SGG) is based on a comprehensive balancing of the applicant's interest in suspension on the one hand and the public interest in enforcement on the other. This balancing of interests must take into account the extent to which doubts exist as to the legality of the contested administrative act or whether enforcement would result in undue hardship for the applicant that is not justified by overriding public interests. Since Section 86a Paragraph 2 No. 4 of the SGG generally shifts the risk of enforcement to the addressee of the decision, in these cases only such doubts as to the legality of the decision can justify an overriding interest in suspension that make the success of the legal remedy appear at least highly probable.
In the present case, the public interest in enforcing the restriction of benefits pursuant to Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) in the decision of February 12, 2025, must yield to the applicant's interest in a stay of execution, as there is no public interest in enforcing an unlawful administrative act. The decision of February 12, 2025, is already formally unlawful because it lacks the hearing required under Section 1 Paragraph 1 of the Rhineland-Palatinate State Administrative Procedure Act (LVwVfG) in conjunction with Section 28 Paragraph 1 of the Administrative Procedure Act (VwVfG) prior to the issuance of the administrative act. The respondent did not give the applicant the opportunity to comment on the facts relevant to the restriction of benefits before issuing the decision. Since the hearing was not dispensable under Section 28 Paragraph 2 or 3 of the VwVfG, this constitutes a fundamental procedural error. Whether this defect has been remedied by the access to the files granted to the applicant's legal representative in the interim pursuant to Section 45 of the Administrative Procedure Act (VwVfG) can ultimately remain undecided, as there are also considerable doubts about the substantive legality of the decision of February 12, 2025.
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), as the respondent ordered in its decision of February 12, 2025. 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.
Although the applicant is subject to an enforceable deportation order as a result of the rejection of his asylum application by the BAMF decision of 16 January 2025, and his asylum application has been rejected as inadmissible pursuant to Section 29 Paragraph 1 No. 1 in conjunction with Section 31 Paragraph 6 of the Asylum Act, and deportation has been ordered.
The court cannot discern a (positive) finding by the Federal Office for Migration and Refugees (BAMF) that departure is legally and factually 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 appears doubtful that this also constitutes a finding by the BAMF that departure is legally and factually 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 actual 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 expressly determine that departure is possible (also) for legal and factual reasons. The deportation order under Section 34a, paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG), 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 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 factual prerequisites multiple times in one provision. The court therefore understands the finding of the BAMF stipulated in § 1 para. 4 AsylbLG as an independent element of the offense, which is not apparent to date.
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 Directive 2013/33/EU 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, guaranteeing 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 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 already 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 his obligations to provide information and report. Nor has he submitted a subsequent application pursuant to Article 2(q) of Directive 2013/32/EU. Rather, the applicant did not actually submit an asylum application in Italy, so it has not been definitively rejected, he did not expressly withdraw such an application, and he was not rejected by the asylum authorities after tacitly withdrawing it. Therefore, 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.
Notwithstanding 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 must, in light of the referral decision of the Federal Social Court (BSG), at least be considered open. 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 necessitate, in order to grant effective preliminary legal protection in the present case, that the applicant's interest in deferral outweighs the interest in enforcement. 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).
The decision on costs follows from the corresponding application of § 193 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.
