DECISION
In the legal dispute
xxx,
Applicant,
Legal representative:
Attorney Sven Adam
, Lange-Geismar-Straße 55, 37073 Göttingen
against
State of Hesse,
represented by the Regional Council of Gießen,
Lilienthalstraße 2, 35394 Gießen,
Respondent,
The 16th Chamber of the Social Court of Darmstadt decided on April 4, 2025, through the presiding judge, Judge xxx of the Social Court:
The suspensive effect of the applicant's objection of 21 March 2025 against the respondent's decision of 18 March 2025 is ordered.
The respondent must reimburse the applicant for the necessary extrajudicial costs incurred.
REASONS
I.
The parties are in dispute in the preliminary legal protection proceedings regarding the order for the suspensive effect of an objection against the cancellation of benefits under the Asylum Seekers' Benefits Act (AsylbLG).
The applicant is an Afghan national, entered the Federal Republic of Germany on 01.02.2025 and submitted a formal asylum application on 07.02.2025.
By decision dated 11 February 2025, the applicant was granted benefits to cover his necessary personal needs in accordance with Section 3 Paragraphs 1 and 2 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Section 3a Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) in the amount of €169.87 in February 2025 and €173.00 per month from March 2025.
The Federal Office for Migration and Refugees (BAMF) rejected the applicant's asylum application as inadmissible by decision dated 26 February 2025 and ordered his deportation to Belgium.
The respondent then notified the applicant by letter dated March 5, 2025, regarding a planned termination of benefits pursuant to Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG). The applicant subsequently stated that he had no family who could support him financially and that he could not survive without benefits. He further stated that the termination of benefits was likely contrary to European law and unconstitutional.
By decision dated March 18, 2025, the respondent revoked the decision of February 11, 2025, with immediate effect pursuant to Section 9 Paragraph 4 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Section 45 of Book Ten of the Social Code – Social Administrative Procedure and Social Data Protection (SGB X). The applicant will henceforth no longer receive benefits under the AsylbLG pursuant to Section 1 Paragraph 4 AsylbLG, except for bridging benefits until his departure, but for a maximum period of two weeks until April 4, 2025. The Federal Office for Migration and Refugees (BAMF) issued a subsequent decision on February 26, 2025, regarding the obligation to leave the country, which established that the decision granting benefits under the AsylbLG on February 11, 2025, was unlawful. At the time the decision granting benefits was issued, it was not known that the applicant had already been granted international protection by another Member State of the European Union or by a third country participating in the distribution mechanism within the meaning of Section 1a, Paragraph 4, Sentence 1. Had this fact been known, the applicant would not have been entitled to benefits under this law. His reliance on the validity of the administrative act is not worthy of protection under Section 45, Paragraph 2, Sentence 3, Number 2 of the German Social Code, Book X (SGB X), because the administrative act is based on incorrect information, as he failed to disclose that he had already been granted international protection in another country. Gross negligence is present, as he should have been aware that he could not be granted international protection in another country if he had already been granted it in another. An unlawful, favorable administrative act with continuing effect, such as the decision granting benefits dated February 11, 2025, can only be revoked within two years of its notification, according to paragraph 2. The decision was demonstrably served on him by confirmation of receipt on March 10, 2025, thus the two-year period was observed. Therefore, the revocation of the benefit decision is justified. By decision of the Federal Office for Migration and Refugees (BAMF) dated February 26, 2025, the asylum application was rejected as inadmissible pursuant to Section 31 Paragraph 6 of the Asylum Act (AsyIG), and deportation to the member state Belgium was ordered pursuant to Section 34a Paragraph 1 Sentence 1, second alternative, of the Asylum Act (AsylG). It was also determined that departure was legally and factually possible for him. Therefore, the applicant has no entitlement to benefits under this Act pursuant to Section 1 Paragraph 4 Number 2 of the Asylum Seekers' Benefits Act (AsylbLG). Until his departure, but for a maximum of two weeks from the date of notification of this termination notice, he will receive limited assistance (bridging benefits) pursuant to Section 1 Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG). These bridging benefits will include the benefits under Section 1a Paragraph 1 and Section 4 Paragraph 1 Sentence 1 and Paragraph 2 of the AsylbLG, i.e., benefits to cover the need for food and accommodation, including heating, as well as personal hygiene and healthcare, and benefits for the treatment of acute illnesses and pain, or, in the case of pregnancy, benefits for medical and nursing care, midwifery services, medicines, dressings, and remedies. These benefits will be provided exclusively in kind. Cash benefits are excluded. In the hearing on March 5, 2025, the applicant did not provide sufficient grounds to establish a case of particular hardship. The bridging benefits would be discontinued no later than April 4, 2025, meaning he would have to leave the initial reception center of the state of Hesse immediately.
The applicant, through his legal representative, lodged an objection to this by letter dated March 21, 2025.
The applicant, through his legal representative, filed an application with the Darmstadt Social Court on March 23, 2025, for an order suspending the effect of the objection.
He is of the opinion that there are constitutional concerns regarding Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG). The provision of Section 1a AsylbLG is manifestly 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 (cf. Federal Constitutional Court, judgment of February 9, 2010, Case No.: 1 BvL 1/09, BVerfGE 125, 175). This is because there is a direct constitutional entitlement to benefits to guarantee a dignified minimum standard of living (Federal Constitutional Court, judgment of July 18, 2012, Case Nos.: 1 BvL 10/10 and 1 BvL 2/11, para. 90, referring to BVerfGE 125, 175, 223 with further references). The physical and socio-cultural existence of all people must be uniformly guaranteed. The human dignity that forms the basis of this claim belongs to everyone and is not lost even through supposedly "undignified" behavior (Federal Constitutional Court, judgment of November 5, 2019, Case No.: 1 BvL 7/16, first substantive ruling). The Basic Law guarantees, through Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1, a fundamental right to a dignified minimum standard of living. Article 1 Paragraph 1 establishes this right; the social welfare state mandate of Article 20 Paragraph 1 of the Basic Law obligates the legislature to actually guarantee a dignified minimum standard of living. The fundamental right is, in principle, inalienable and must be redeemed through an entitlement to benefits, but requires concretization and continuous updating by the legislature, which must align the benefits to be provided with the respective stage of development of the community and the existing living conditions with regard to the specific needs of those affected. The legislature has a margin of discretion in this matter. In exercising this discretion, it must also take into account obligations under international law (Federal Constitutional Court, judgment of November 5, 2019, Case No.: 1 BvL 7/16, para. 118, referring to BVerfGE 142, 353 <369 f. para. 36> with further references). The constitutionally guaranteed right to a dignified minimum standard of living extends to the absolutely necessary means as a unified guarantee to secure both physical existence and a minimum level of participation in social, cultural, and political life (see BVerfGE 125, 175 <223>; 132, 134 <172 para. 94>; 137, 34 <72 para. 75>; 142, 353 <370 para. 37>). The anchoring of this right to a dignified minimum standard of living in the fundamental right of Article 1 Paragraph 1 of the Basic Law means that the legislature, the executive, and the judiciary (Article 1 Paragraph 3 of the Basic Law) may not reduce individuals to mere physical survival, but rather guarantee dignity, going beyond mere existence and thus also social participation as members of society. It would contradict the non-relativizable principle of inviolability if only a minimum below what the legislator has already defined as the minimum were guaranteed; in particular, the guarantee under Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1 of the Basic Law cannot be divided into a "core area" of physical existence and a "peripheral area" of social existence. The legislature cannot refer to the sums allocated for socio-cultural needs in the lump-sum calculation of basic income support benefits, either for internal compensation or to justify a reduction in benefits, because physical and socio-cultural existence are uniformly protected by Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1 of the Basic Law (Federal Constitutional Court, judgment of November 5, 2019, Case No.: 1 BvL 7/16, para. 119, referring to BVerfGE 137, 34 <91 para. 117> with further references). If a person lacks the material means necessary to guarantee a life of human dignity because they cannot obtain them through their own employment, their own assets, or through contributions from third parties, the state, within the framework of its mandate to protect human dignity and in fulfillment of its social welfare mandate, is obligated to ensure that the material prerequisites for this life of human dignity are available (cf. BVerfGE 40, 121 <133 f.>; 125, 175 <222>; established case law). The human dignity on which this claim is based belongs to everyone, is fundamentally inalienable (cf. BVerfGE 45, 187 <229>), and is not lost even through supposedly "undignified" behavior (cf. BVerfGE 87, 209 <228>). It cannot be denied even to those accused of the most serious offenses (cf. BVerfGE 64, 261 <284>; 72, 105 <115>). The social welfare principle requires state support and care even for those whose personal and social development is hindered due to personal weakness or guilt, incapacity, or social disadvantage (cf. BVerfGE 35, 202 <236>). This obligation to secure a minimum standard of living cannot be relativized, even to achieve other objectives (Federal Constitutional Court, judgment of November 5, 2019, Case No.: 1 BvL 7/16, para. 119; cf. also BVerfGE 132, 134 <173 para. 95>). In its most recent decision on Section 1a of the Asylum Seekers' Benefits Act (AsylbLG a. In its decision of May 12, 2021 (Case No.: 1 BvR 2682/17), the Federal Constitutional Court clarified this point: A generalized restriction is inadmissible from the outset (see BSGE 123, 157 <162 para. 21; 164 para. 24>). A practice whereby socio-cultural needs are generally considered dispensable is therefore incompatible with constitutional requirements. Neither benefits for physical nor those for socio-cultural needs are freely available; they cannot be arbitrarily reduced or eliminated (see BVerfGE 152, 68 <113 f. para. 119>). The Federal Constitutional Court has ruled that Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) is inapplicable. F. considered the interpretation adopted by the Federal Social Court in the challenged decision to be compatible with constitutional requirements because Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) in its former version did not deprive anyone of benefits, but rather, according to the Federal Social Court's interpretation, allowed for a "restriction" of the entitlement to subsistence benefits to the "absolutely essential" in certain cases. According to the Federal Social Court's interpretation of the provision, which was decisive in the dispute, the responsible agency was to determine what further benefits were to be provided based solely on the specific circumstances of the individual case and on a needs-based approach. However, Section 1 Paragraph 4 of the AsylbLG would completely exclude those affected from receiving benefits. Section 1 Paragraph 4 of the AsylbLG in its current version thus contains precisely that generalized restriction according to which socio-cultural needs are generally considered dispensable, which, according to the jurisprudence of the Federal Constitutional Court, is incompatible with constitutional requirements. Regarding Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG), reference is made to the decision of the Schleswig-Holstein Higher Social Court, ruling of June 15, 2020, file number: L 9 AY 78/20 B ER. The court stated therein: The Senate also considers a teleological reduction of Section 1a Paragraph 4 Sentence 2 of the AsylbLG to be constitutionally necessary. If a reduction in benefits were made dependent, based on the wording, solely on the fact that the beneficiary is subject to a European asylum regime, without explicitly linking it to specific misconduct, this would contradict the existing sanctions system in the AsylbLG and in the basic income support for job seekers (Book Two of the Social Code).<SGB II> ) as well as in the case of social assistance (Twelfth Book of the Social Code)<SGB XII> ), where the beneficiary has the power to avoid or terminate a reduction in benefits. Thus, the Federal Constitutional Court, in its judgment of July 18, 2012 (1 BvL 10/10, 1 BvL 2/11), with regard to the unconstitutionality of the level of cash benefits under Section 3 Paragraph 2 Sentences 2 and 3 in conjunction with Section 3 Paragraph 1 Sentence 4 of the Asylum Seekers' Benefits Act (AsylbLG) in its former version, already stated clearly that migration policy considerations, namely keeping benefits for asylum seekers and refugees low in order to avoid incentives for migration through a potentially high level of benefits compared internationally, would not justify a reduction of the benefit standard below the physical and socio-cultural minimum subsistence level. Because “the human dignity guaranteed in Article 1 Paragraph 1 of the Basic Law (GG) cannot be relativized in terms of migration” (Federal Constitutional Court, Judgment of July 18, 2012, loc. cit., juris para. 95; see also Federal Social Court, Judgment of May 12, 2017, B 7 AY 1/16, juris para. 29/32). In this context, the Senate concurred with the correct observation of the Bavarian State Social Court (decision of September 17, 2018, L 8 AY 13/18 B ER, juris para. 32 with further references), according to which benefits under Sections 3 et seq. of the Asylum Seekers' Benefits Act (AsylbLG) are already reduced compared to benefits under the German Social Code, Book II (SGB II) or Book XII (SGB XII), so that any further restriction of benefits would result in a further reduction of the benefit level and, in the case of a generous application of Section 1a para. 4 sentence 2 of the AsylbLG, there is a risk of an impermissible undercutting of the minimum standard of living for beneficiaries and their family members, which must always be guaranteed by the Constitution. Furthermore, there are considerable doubts as to whether the provision of Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG) complies with the principle of equal treatment under Article 3 Paragraph 1 of the Basic Law (GG), given that those affected by restrictions on their benefits under Section 1a Paragraphs 1-3 of the AsylbLG are accused of specific, self-inflicted misconduct under immigration law, resulting in a restriction of benefits, whereas Section 1a Paragraph 4 of the AsylbLG does not, according to its wording, regulate such a situation. Finally, the reasons for secondary migration remain unconsidered. For example, with regard to the European Convention on Human Rights, deportation to another EU member state is precluded if no guarantee declaration has been issued for minor children (see in detail Oppermann in: Schlegel/Voelzke, jurisPK-SGB XII, 3rd edition, Section 1a AsylbLG, marginal note 129 with further references). Taking into account the above considerations and, in particular, the necessity of a reduction of Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG) that preserves the legal norms, the Senate did not consider the applicants' entry into Germany to be a breach of duty. Notwithstanding the current entry and exit restrictions due to the coronavirus pandemic and the fact that the respondent also did not identify any specific misconduct on the part of the applicants, but rather referred to the circumstances at the time of entry, the constitutionally compliant interpretation of the provision in Section 1a Paragraph 4 Sentence 2 of the AsylbLG described above leads, at least with regard to the still unresolved residency status, to the non-application of this benefit reduction (see also the comparable decision of the Hamburg Social Court of July 8, 2019, S 28 AY 48/19 ER, juris para. 8). In this case, no individual breach of duty can be attributed to the applicants. Constitutional concerns regarding the restriction of benefits under Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) therefore exist because this restriction would infringe upon the affected person's fundamental right to a guaranteed minimum standard of living that ensures human dignity – in this case, quite obviously. The Basic Law does not preclude the decision to grant state benefits to secure a dignified existence only as a secondary measure and to therefore make them contingent on obligations to cooperate, which aim to overcome the need for assistance, provided that these obligations are proportionate to this objective (Federal Constitutional Court, judgment of November 5, 2019, Case No.: 1 BvL 7/16, para. 117). This does not preclude the legislature from making the use of social benefits to secure a dignified existence contingent on the principle of subsidiarity, i.e., from making them available only when people cannot primarily secure their own existence (Federal Constitutional Court, judgment of November 5, 2019, Case No.: 1 BvL 7/16, para. 119; see also BVerfGE 125, 175 <222>; 142, 353 <371 para. 39>; see also BVerfGE 120, 125 <154 ff.>). The social welfare state also depends on the fact that public funds intended to assist its needy members are only used in cases where genuine need exists (BVerfGE 142, 353 <371 para. 39>). Conserving the state's limited financial resources in this context ensures its future capacity to shape policy, particularly for achieving the social welfare objective (Federal Constitutional Court, judgment of November 5, 2019, Case No.: 1 BvL 7/16, para. 124). The social welfare principle enshrined in Article 20, Paragraph 1 of the Basic Law directly obligates all state bodies, but its realization requires a high degree of concretization, primarily by the legislature (see BVerfGE 65, 182 <193>; 71, 66 <80>). Within its broad scope of assessment and discretion, the legislature must decide which path and means should be used to pursue the social welfare objective (see BVerfGE 59, 231 <263>; 82, 60 <80>). This is limited by the obligation to guarantee every person a dignified minimum standard of living (cf. BVerfGE 125, 175 <222>). The legislature does not fail in this mandate if it makes the granting of state assistance contingent on the inability of those affected to help themselves. It may therefore pursue the principle of subsidiarity, according to which existing possibilities for self-sufficiency take precedence over state welfare (Federal Constitutional Court, 5 November 2019, Case No.: 1 BvL 7/16, para. 125). The Basic Law also does not preclude a decision by the legislature to require those who receive state social security benefits to actively participate in overcoming their need for assistance or to prevent such need from arising in the first place (Federal Constitutional Court, 5 November 2019, Case No.: 1 BvL 7/16, para. 126). In contrast, a legitimate aim of such obligations to cooperate cannot be seen as promoting the development of one's own personality. Such paternalism is alien to the Basic Law. There is no "sovereignty of reason" of state organs over those entitled to fundamental rights (cf. BVerfGE 142, 313 <339 para. 74> with further references); rather, the Basic Law demands respect for the autonomous self-determination of individuals (cf. BVerfGE 142, 313 <344 para. 86>), without simply abandoning helpless people to their own devices (cf. BVerfGE 142, 313 <338 f. para. 73>). Article 1, paragraph 1 of the Basic Law protects human dignity as it is understood and self-aware in one's individuality (BVerfGE 49, 286 <298>). This excludes obligations to cooperate that are aimed at state paternalism or attempts at "improvement" (cf. BVerfGE 128, 282 <308>). A reduction in benefits or even an exclusion of benefits can uphold the requirements of Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1 of the Basic Law if they are not aimed at repressively punishing misconduct, but rather at ensuring that obligations to cooperate are fulfilled, obligations that serve precisely to avoid or overcome existential need (Federal Constitutional Court, judgment of November 5, 2019, Case No.: 1 BvL 7/16, para. 131). Considerations of migration policy cannot, in the first place, justify lowering the standard of benefits below the physical and socio-cultural minimum subsistence level. The human dignity guaranteed in Article 1 Paragraph 1 of the Basic Law cannot be relativized in the context of migration policy (Federal Constitutional Court, judgment of July 18, 2012, Case Nos. 1 BvL 10/10 and 1 BvL 2/11, BVerfGE 132, 134, para. 121). The exclusion of Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) therefore clearly does not pursue a legitimate aim within the meaning of the Federal Constitutional Court's jurisprudence (cf. Federal Constitutional Court, judgment of November 5, 2019, Case No. 1 BvL 7/16, paras. 126 et seq.). The provision is not intended to enforce any obligation to cooperate under asylum or residence law. The legislature's sole aim is evidently the repressive sanctioning of individual behavior by those affected, intended to have a deterrent effect on others and compel them to leave voluntarily. The restriction on benefits under Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) only requires that another state be responsible for the asylum application. Those affected have no recourse whatsoever. The legislator intends to curb undesirable secondary migration in this way. However, according to the jurisprudence of the Federal Constitutional Court (BVerfG of November 5, 2019, Case No.: 1 BvL 7/16, paragraphs 126 et seq.), the legitimate aim of a benefit-related sanction can only be to avoid or overcome existential need (contrary to the Federal Social Court's ruling of May 12, 2017, Case No.: B 7 AY 1/16 R, paragraphs 29 et seq. with further references). This is clearly not the case here. The Hessian State Social Court therefore stated in its decision of March 31, 2020 (Case No.: L 4 AY 4/20 B ER): Prior to the Federal Constitutional Court's decision on the sanctions under Book II of the German Social Code (SGB II), the panel deciding on this matter had, according to the standards set out in BVerfGE 132, 134, adopted a constitutionally compliant interpretation to the effect that the restriction of entitlement in terms of time is limited by a consolidation of residence according to the circumstances of the individual case, but in any event to the period stipulated in Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) (see detailed panel decision of December 9, 2013 – L 4 AY 17/13 B ER –, juris para. 24 et seq., in particular para. 31 et seq.). Comparable considerations of proportionality can also be found – as described above – in the judgment of the Federal Constitutional Court of November 5, 2019 – 1 BvL 7/16 – in paragraph 133. However, in light of the requirements now established by the Federal Constitutional Court regarding the legitimate objectives of duties to act or refrain from acting, and the resulting restriction of entitlements, this limitation is no longer sufficient. An objective of a duty to act or refrain from acting that is not covered by Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1 of the Basic Law cannot, from the outset, lead to a constitutionally compliant reduction in benefits. This is precisely the case here, however, if the objective of preventing entry motivated by social welfare benefits is and remains the sole basis for the reduction in benefits, without the conduct during the receipt of benefits being relevant in any way. A constitutionally compliant interpretation that would supplement the definition of the offense with an unwritten element of currently unlawful or abusive conduct (cf. regarding Section 1a Paragraph 7 of the Asylum Seekers' Benefits Act: Social Court Landshut, decision of January 23, 2020 – S 11 AY 79/19 ER and of January 28, 2020 – S 11 AY 3/20 ER – juris, as well as Social Court Munich, decision of February 10, 2020 – S 42 AY 82/19 ER – juris) would ultimately lead to the inapplicability of the provision. This is because the only conceivable case of such a constitutionally recognized breach of duty or abuse of rights would be the maintenance of benefit payments by preventing the termination of residence, which is already independently regulated in Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act. This ultimately leads to the situation that Section 1a Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) in its former version and Section 1a Paragraph 2 of the AsylbLG – as in the present case – would have to remain inapplicable if their application would achieve the repressive objective of the provisions. Section 1a Paragraph 4 of the AsylbLG serves migration policy purposes with a repressive objective (see above). The Hessian State Social Court stated the following in the aforementioned decision: Furthermore, it would be an inadmissible migration policy objective to provide the authorities with the means to withhold humane subsistence in cases of deportation or transfer that are – as here – easily possible, in order to force departure without administrative enforcement (similarly Oppermann, in: Schlegel/Voelzke, jurisPK-SGB XII, Section 1a AsylbLG, marginal note 209). Furthermore, the exclusion pursuant to Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) does not meet the strict requirements of proportionality that must be met when reducing subsistence benefits to enforce cooperation obligations. This is because it stands in undeniable tension with the state's obligation to guarantee subsistence under Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1 of the Basic Law (GG). During the period of reduced benefits, those in need do not actually receive what they require to secure their subsistence, without being able to secure their own subsistence themselves. The legislature is withholding what it is obligated to guarantee under Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1 of the Basic Law; it is suspending what is constitutionally guaranteed to those in need, thereby imposing an extraordinary burden (Federal Constitutional Court, judgment of November 5, 2019, Case No.: 1 BvL 7/16, para. 132).
Such benefit reductions are only proportionate if the burdens placed on those affected are also in proper proportion to the actual achievement of the legitimate goal of overcoming need, i.e., securing a dignified existence, particularly through gainful employment. Their reasonableness depends primarily on whether the benefit reduction, considering its suitability for achieving this purpose and as the least restrictive, equally effective means, is proportionate to the burden placed on those affected. This presupposes, in particular, that it is actually possible for those affected to avert the reduction in state benefits through their own reasonable actions and to regain the subsistence-level benefits. The requirements of Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1 of the Basic Law are therefore only met if the benefits necessary to cover all essential living expenses are available to those in need and it is their own responsibility to create, in a reasonable manner, the conditions for receiving the benefit again even after a reduction (Federal Constitutional Court, judgment of November 5, 2019, Case No.: 1 BvL 7/16, para. 133). Since Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) offers those affected no opportunity to respond, the provision is incompatible with the Basic Law for this reason alone. Furthermore, it does not pursue the legitimate aim of overcoming the neediness of those affected. Moreover, when reducing benefits below the constitutionally mandated minimum subsistence level, the legislature must base its choice and design of its concept on a constitutionally sound assessment. Insofar as the legislature relies on forecasts regarding actual developments and, in particular, the effects of its regulations, these forecasts must be sufficiently reliable (see BVerfGE 88, 203 <262>). However, within the framework of Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG), the legislature is not pursuing any concrete objectives with regard to those affected by the exclusion. Furthermore, the choice and design of the concept of entitlement restrictions pursuant to Section 1a AsylbLG lacks a constitutionally sound assessment of its suitability, necessity, and proportionality (see BVerfGE 88, 203 <262>, Federal Constitutional Court decision of November 5, 2019, Case No.: 1 BvL 7/16, para. 134). The Federal Government simply has no data available in this regard. It follows that the Federal Government has no information on the suitability, necessity, and proportionality of the exclusion under Section 1 Paragraph 4 AsylbLG. Section 1(4) of the Asylum Seekers' Benefits Act (AsylbLG) also violates EU law. The only possible legal basis under EU law for Section 1(4) of the AsylbLG is Article 20(1)(c) of Directive 2013/33/EU (Reception Directive). According to this provision, Member States may, in justified exceptional cases, restrict or withdraw the material benefits granted within the framework of reception if an applicant has submitted a subsequent application pursuant to Article 2(q) of Directive 2013/32/EU (Asylum Procedures Directive). It is disputed whether a subsequent application pursuant to Article 2(q) of Directive 2013/32/EU can also exist if the initial application was submitted in another Member State, or whether the subsequent application must have been preceded by an initial application in the same Member State (the wording of Article 40(1) of the Asylum Procedures Directive also argues against this: “…in the same Member State…”). In case C-8/20, the European Commission stated that EU law precludes the cross-border application of the subsequent application concept. The cross-border application of this concept implies a certain degree of mutual recognition of negative asylum decisions, and such recognition is not generally provided for in current EU asylum law. There is strong support for the view that such a step towards mutual recognition would have to be expressly and clearly decided upon by the EU legislature, particularly since the consequences for asylum seekers of classifying an application as a subsequent application are considerable. Furthermore, a reduction pursuant to Article 20(1)(c) of Directive 2013/33/EU would only be permissible if the beneficiary could be accused of misconduct. A review in conjunction with the other grounds for reduction pursuant to Article 20(1)(a) and (b) and (2) to (4) of Directive 2013/33/EU shows that a restriction or withdrawal of the material benefits granted within the framework of reception always presupposes a breach of duty. Only under this condition can a justified exceptional case within the meaning of Article 20(1) of Directive 2013/33/EU exist. Here, no breach of duty can be attributed to the individual. There was neither a breach of duty in entering the Federal Republic of Germany nor a breach of duty in remaining there. Furthermore, Section 1(4), sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) violates Article 20(5) of Directive 2013/33/EU. Decisions regarding the restriction or withdrawal of material benefits granted during the reception process, or regarding sanctions under paragraphs 1, 2, 3, and 4 of Article 20, would then be made and justified on a case-by-case basis, objectively and impartially. These decisions would have to be made based on the specific circumstances of the individuals concerned, particularly with regard to the persons mentioned in Article 21, and taking into account the principle of proportionality. In accordance with Article 19, Member States would in any case guarantee access to medical care and ensure a dignified standard of living for all applicants. Section 1, paragraph 4, sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) fails to meet these requirements because it is structured as a mandatory decision, thus leaving no room for consideration of the principle of proportionality (see Hruschka, ZIAS 2020, 113, 123 et seq.). Furthermore, the benefits withheld under Section 1 of the AsylbLG do not guarantee a dignified standard of living within the meaning of the law. Article 20(5), third sentence, of Directive 2013/33/EU guarantees this. The level of benefits is determined by what is considered appropriate in the respective national context (Hessian State Social Court, judgment of April 13, 2021, Case No.: L 4 AY 3/21 B ER; Hruschka, ZIAS 2020, 113, 117). According to national constitutional law, there is a direct constitutional entitlement to benefits to guarantee a dignified minimum standard of living (Federal Constitutional Court, judgment of July 18, 2012, Case Nos.: 1 BvL 10/10 and 1 BvL 2/11, para. 90, referring to BVerfGE 125, 175, 223 with further references). Both physical and socio-cultural existence must be uniformly secured. The human dignity on which the claim is based belongs to everyone and is not lost even through supposedly “undignified” behavior (Federal Constitutional Court of 05.11.2019, Case No.: 1 BvL 7/16, 1st LS).
The Federal Social Court therefore referred the following questions to the European Court of Justice for a preliminary ruling on the interpretation of the Reception Directive in conjunction with the Dublin III Regulation by decision of 25 July 2024, file number B 8 AY 6/23 R: 1. Does a regulation of a Member State which, depending on their status as persons subject to enforceable deportation, grants applicants for international protection within the transfer period under Regulation (EU) No 604/2013 only 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, cover the minimum level described in Article 17(2) and (5) of Directive 2013/33/EU? Should question 1 be answered in the negative: 2.a) Is Article 20(1), first sentence, point (c) of Directive 2013/33/EU, in conjunction with Article 2q of Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection, to be interpreted as meaning that a subsequent application also covers situations in which the applicant has previously submitted an application for international protection in another Member State and, based on that, the Federal Office for Migration and Refugees rejected the application as inadmissible under Regulation (EU) No 604/2013 and ordered the applicant's deportation? Does the decisive factor in determining whether, in this situation, a subsequent application exists within the meaning of Article 2q of Directive 2013/32/EU, be the date of a withdrawal or the date of a decision by the other Member State under Article 27 or Article 28 of Directive 2013/32/EU? (c) Is Article 20(1), first sentence, point (c), in conjunction with Article 20(5) and (6) of Directive 2013/33/EU, in conjunction with the Charter of Fundamental Rights, to be interpreted as permitting a restriction of the benefits granted within the framework of reception to benefits to cover the need for food and accommodation, including heating, as well as personal hygiene and healthcare, and benefits in the event of illness, and – depending on the individual case – clothing and household goods and consumables? In the proceedings before the Senate concerning the application of Section 1a(7) of the Asylum Seekers' Benefits Act (AsylbLG), the question of the compatibility of the provision with European law was therefore rightly raised by the Senate, in particular whether the level of benefits provided for under national law for applicants during the transfer period under the Dublin III Regulation (Regulation (EU) No 604/2013) meets the requirements of the Reception Directive (see hearing report No. 27/24 of 26 July 2024, available at www.bundessozialgericht.de). This question is clearly applicable to Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG), which is the subject of this dispute. This legal opinion is shared in the social courts. The Trier Social Court stated in its decision of February 20, 2025, under file number S 3 AY 4/25 ER: Furthermore, there are considerable doubts as to the conformity of Section 1 Paragraph 4 Sentence 1 No. 2 of the AsylbLG, which is 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(2) of Directive 2013/2013/EC 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 appropriate 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 has not yet been finally decided, belongs to the group of persons entitled to such benefits 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 applicable (see the referral order of the Federal Social Court of 25 July 2024 – B 8 AY 6/23 R –, juris). The scope of the benefits to be granted is based on a level of benefits equivalent 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 correspond to an adequate standard of living (Article 17(2) of Directive 2013/33/EU). The level of material benefits, in the form of cash payments or vouchers, is determined by the Member States based on the level of benefits that the Member State in question applies, in accordance with its national legislation or practice, to ensure an adequate standard of living for its own nationals (Article 17(5) of Directive 2013/33/EU). Less favorable treatment compared to nationals is permitted, particularly if material support is provided partly in the form of benefits in kind or if the level of benefits applicable to nationals aims to guarantee a standard of living higher than that prescribed for applicants under this Directive (Article 17(5), second sentence, of Directive 2013/33/EU). Benefits granted during reception may be restricted or withdrawn in accordance with Article 20 of Directive 2013/33/EU. It is not apparent that Section 1(4), first sentence, no. 2 of the Asylum Seekers' Benefits Act (AsylbLG) meets this standard in the abstract; at least, 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 had not actually filed an asylum application in Italy (presumably Belgium was meant), so it had not been definitively rejected, he had not expressly withdrawn such an application, and he had not been 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. In this respect, reference is also made to the decisions of the Social Court of Landshut, decision of December 18, 2024, file no.: S 11 AY 19/24 ER, the Social Court of Darmstadt, decision of February 4, 2025, file no.: S 16 AY 2/25 ER, the Social Court of Karlsruhe, decision of February 19, 2025, file no.: S 12 AY 424/25 ER, and the Social Court of Speyer of February 20, 2025, file no.: S 15 AY 5/25 ER. The grounds for an injunction are also present. The applicant's constitutionally guaranteed minimum subsistence level is currently no longer secured. If subsistence-level benefits are not available, it is generally assumed that grounds for an injunction exist within the meaning of Section 86 Paragraph 2 Sentence 2 of the Social Court Act (SGG). For the purposes of preliminary legal protection – within which, for example, a referral to the Federal Constitutional Court pursuant to Article 100 Paragraph 1 of the Basic Law is not possible due to the lack of a swift resolution – a provisional grant appears unavoidable, at least by way of a balancing of interests (cf. regarding Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act, Social Court Landshut, judgment of September 8, 2021, Case No.: S 11 AY 38/21 ER; similarly regarding Section 1a Paragraph 7 of the Asylum Seekers' Benefits Act, Social Court Oldenburg, judgment of December 2, 2020, Case No.: S 26 AY 44/20; and regarding Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act, Social Court Stade, judgment of August 26, 2021, Case No.: S 5 AY 5/21 ER and Social Court Bayreuth, judgment of December 21, 2021, Case No.: S 13 AY). 45/21 ER). Constitutional concerns regarding the benefit restriction under Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) exist because this restriction would clearly infringe upon the affected person's fundamental right to a guaranteed minimum standard of living that ensures human dignity (see above). Furthermore, concerns under European law already exist due to the referral order of the Federal Social Court of July 25, 2024, under file number B 8 AY 6/23 R (see above), concerning the comparable provision in Section 1a Paragraph 7 of the AsylbLG. Since the prospects of success in the main proceedings are also uncertain due to the unclear compatibility of Section 1a Paragraph 4 of the AsylbLG with EU law, the respondent must also be obligated, within the framework of a balancing of interests, to grant the applicant provisionally full benefits in this respect.
The applicant requests
that the suspensive effect of the applicant's objection of 21 March 2025 against the respondent's decision of 18 March 2025 be ordered.
The respondent requests that
the application be rejected.
He is of the opinion that the application for interim relief is unfounded and should be dismissed without further consideration of the interests involved, because no legitimate interest of the applicant can be opposed to the legally mandated immediate enforceability of the administrative act. There is no legal entitlement to such an order. The respondent's decision to discontinue benefits was lawful. According to the file, the requirements of Section 1 Paragraph 4 Sentence 1 No. 2 of the Asylum Seekers' Benefits Act (AsylbLG) are met. For a more detailed explanation, reference is made in full to the decision of March 18, 2025. The applicant is entitled to benefits pursuant to Section 1 Paragraph 1 No. 5 of the Asylum Seekers' Benefits Act (AsylbLG). His asylum application was rejected as inadmissible by a decision of the Federal Office for Migration and Refugees (BAMF) pursuant to Section 29 Paragraph 1 No. 1 in conjunction with Section 31 Paragraph 6 of the Asylum Act. Furthermore, deportation to Belgium was ordered, and it was determined that no prohibitions on deportation existed pursuant to Section 60 Paragraphs 5 and 7 Sentence 1 of the Residence Act. This means the applicant's entitlement to benefits under the Asylum Seekers' Benefits Act (AsylbLG) ends, and he can only be granted limited assistance once within a two-year period, until his departure, but for a maximum of two weeks, to bridge the gap until his departure. The applicant is to be granted bridging benefits pursuant to Section 1 Paragraph 4 of the AsylbLG until April 4, 2025, at the latest. These include the benefits under Section 1a Paragraph 1 and Section 4 Paragraph 1 Sentence 1 and Paragraph 2 of the AsylbLG, which are provided as benefits in kind. Benefits beyond this will only be considered in individual cases due to special circumstances and to overcome particular hardship. The applicant was heard in advance of the intended decision. He stated that he depends on the benefits for his survival, as he has no family who can support him financially. He also pointed out the likely incompatibility of the provision with European law and the German Constitution. However, this does not constitute special circumstances or the existence of particular hardship. Furthermore, Section 1 Paragraph 4 Sentence 1 Number 2 of the Asylum Seekers' Benefits Act (AsylbLG) is applicable law and therefore mandatory. The application of Section 1 Paragraph 4 Sentence 1 Number 2 of the AsylbLG is also lawful. Any deviation by the benefit providers from the statutory provision of Section 1 Paragraph 4 Sentence 1 Number 2 of the AsylbLG would violate the principle of legality in administration. Due to the primacy of law, there is a requirement to apply the law and a prohibition against deviation, meaning that benefits can only be granted under the corresponding conditions. Moreover, the decision regarding the constitutionality of a law rests with the Federal Constitutional Court. Therefore, the application for preliminary legal protection must be rejected.
For further details and documents, as well as for the further submissions of the parties, reference is made to the contents of the court file and the administrative file of the respondent, which were the subject of the decision.
II.
The application for an order suspending the effect of the applicant's objection to the decision of 18 March 2025 is admissible.
Pursuant to Section 86b Paragraph 1 Number 2 of the Social Court Act (SGG), the court may, upon application, order the suspension of enforcement in whole or in part in cases where an objection or appeal does not have suspensive effect. If the contested administrative act is manifestly unlawful, there is no reason for immediate enforcement. If the contested decision is lawful, the balancing of interests favors the authority. If the outcome is uncertain, a general balancing of interests applies. Within this balancing of interests, the obligation to protect fundamental rights is of particular importance. According to the Federal Constitutional Court (BVerfG) (NJW 2003, 3617 (3618 f.)), the function of preventive measures, which pursue a safeguarding purpose for an interim period, includes, as an exception, temporarily postponing the fundamental rights holder's right to legal protection in order to initiate urgent measures in the interest of the common good in a timely manner. Whether these conditions are met depends on a comprehensive assessment of the circumstances of the individual case and, in particular, on whether further authorization would pose concrete dangers to important public interests. The protective function of procedural law is thus subject to the influence of fundamental rights (BeckOGK/Wahrendorf, November 1, 2024, SGG § 86b Rn. 81, 82, beck-online). The more serious the threatened violation of fundamental rights and the higher its probability of occurrence, the more intensive the factual and legal analysis of the matter must be, even in preliminary legal protection proceedings. If, in the event of imminent violations of fundamental rights, a clarification of the factual and legal situation corresponding to the threat is not possible in expedited proceedings – for example, because this would require further factual investigations that cannot be carried out in the short time available – it is not constitutionally objectionable if the decision on granting preliminary legal protection is then based on a balancing of interests (see: Hessian State Social Court, decision of September 15, 2024 – L 4 AY 19/24 B ER –, para. 32, juris).
The grounds for the order have been substantiated, as the applicant has credibly demonstrated that he has neither income nor assets. The benefits reduced pursuant to Section 1a Paragraph 4 in conjunction with Section 1a Paragraph 2 of the Asylum Seekers' Benefits Act (AsylbLG) generally only cover a portion of the necessary needs within the meaning of Section 3 Paragraph 1 Sentence 1 of the AsylbLG. This jeopardizes his constitutional right to a dignified minimum standard of living (see Federal Constitutional Court, Judgment of November 5, 2019 – 1 BvL 7/16 – juris para. 120, Higher Social Court of Saxony-Anhalt, Decision of February 5, 2025 – L 8 AY 21/24 B –, para. 33, juris).
The application was to be granted as part of the balancing of interests.
The subject of this dispute is the objection to the revocation of the benefit decision under the Asylum Seekers' Benefits Act (AsylbLG). The contested decision revoked the benefits under the AsylbLG based on the application of Section 1 Paragraph 4 Number 2 Sentence 1 of the AsylbLG.
According to paragraph 1, number 5, those entitled to benefits whose asylum application has been rejected as inadmissible by a decision of the Federal Office for Migration and Refugees pursuant to Section 29, paragraph 1, number 1 in conjunction with Section 31, paragraph 6 of the Asylum Act, for whom deportation has been ordered pursuant to Section 34a, paragraph 1, sentence 1, second alternative of the Asylum Act, and for whom, according to the determination of the Federal Office for Migration and Refugees, departure is legally and factually possible, even if the decision is not yet final, are not entitled to benefits under this Act. It is undisputed between the parties that the applicants fall within the aforementioned group of persons.
It cannot be conclusively determined at this time whether the action would be successful on the merits. In weighing the consequences, the referral decision of the Federal Social Court of 25 July 2024 (B 8 AY 6/23) to the European Court of Justice must be taken into account. The legal questions raised regarding Section 1a Paragraph 7 of the Asylum Seekers' Benefits Act (AsylbLG) have direct implications for the relevant provision here and are therefore significant with regard to the protection of fundamental rights. The answers to these questions are also likely to have a direct impact on the benefit restriction under Section 1 Paragraph 4 No. 2 of the AsylbLG, which is relevant here.
Taking into account the enforcement interest of the authority versus the interest of the applicant, the enforcement interest must take a back seat. This is because, in view of the pending main proceedings, the applicant's right to a dignified basic standard of living until actual deportation to Belgium must be given priority.
Accordingly, the application was to be granted.
The decision on costs is based on § 193 SGG and follows the outcome of the proceedings.
The following is information on legal remedies.
