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 8, 2025, through the presiding judge, Judge xxx of the Social Court:
1. The suspensive effect of the applicant's objection of April 1, 2025, against the respondent's decision of March 19, 2025, is ordered. The application is otherwise rejected.
2. The respondent shall reimburse the applicant for half of the necessary extrajudicial costs incurred.
REASONS
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 13 December 2024 and submitted a formal asylum application on 3 January 2025.
By decision dated 20 January 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 €220.87 in December 2024 and €173.00 per month from January 2025.
The Federal Office for Migration and Refugees (BAMF) rejected the applicant's asylum application as inadmissible by decision dated 21 January 2025 and ordered his deportation to Bulgaria.
Subsequently, the respondent notified the applicant by letter dated March 3, 2025, regarding a planned termination of benefits pursuant to Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG). The applicant then stated that he had no family who could support him financially and that he could not survive without benefits. He argued that the termination of benefits was likely contrary to European law and unconstitutional.
By decision dated March 19, 2025, the respondent revoked the decision of January 20, 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 7, 2025. The letter from the Federal Office for Migration and Refugees (BAMF) regarding the obligation to leave the country had subsequently revealed facts that would justify the issuance of the decision granting benefits under the AsylbLG on January 20, 2025, being 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 January 20, 2025, can only be revoked within two years of its notification, according to paragraph 2. The decision was demonstrably served on him by means of a receipt, 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), 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 law 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 his needs 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. The applicant did not provide any grounds for special hardship during the hearing. The bridging benefits will cease no later than April 7, 2025, at which point he must 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 01.04.2025.
The applicant, through his legal representative, filed an application with the Darmstadt Social Court on April 1, 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 "The Senate also considers a teleological reduction of Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (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)." No individual breach of duty can be found here. 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 therefore to 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 "Before the Federal Constitutional Court's decision on the sanctions under Book II of the German Social Code (SGB II), the Senate responsible for this case 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 Senate 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 explained above – in the judgment of the Federal Constitutional Court of November 5, 2019 – 1 BvL 7/16 – in para. 133. 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 related considerations..." However, this limitation is no longer sufficient given the restriction of entitlement. An objective of an obligation to act or refrain from acting, which 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 benefit reduction, without the conduct during the receipt of benefits being relevant in any way. A constitutionally compliant interpretation would require supplementing the elements of the offense with an unwritten characteristic of currently unlawful or currently 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 non-application of the provision. This is because the only conceivable case of such a breach of duty or abuse of rights, which would also be constitutionally recognized, 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 (AsylbLG). This would ultimately lead to Section 1a Paragraph 1 of the AsylbLG (old version) and Section 1a Paragraph 2 of the AsylbLG – as in the present case – having to remain inapplicable if the repressive objective of the provisions were realized through their application. 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 give the authorities the means, in the case of a deportation or transfer that is – as here – easily possible, to withhold a dignified subsistence level in order to force departure without administrative enforcement (similarly Oppermann, in: Schlegel/Voelzke, jurisPK-SGB XII, § 1a AsylbLG Rn. 209).” Moreover, 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 obligations to cooperate. 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 did not actually receive what they required to secure their livelihood, without being able to secure their own livelihood themselves. The legislature withheld what it was obligated to guarantee under Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1 of the Basic Law; it suspended what those in need are entitled to under their fundamental rights, 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 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 suitable means, is proportionate to the burden placed on those affected. This presupposes, in particular, that those affected are actually able to avert the reduction of state benefits through their own reasonable conduct 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 needs are available to those in need and it is their own responsibility to create, in a reasonable manner, the conditions for receiving the benefits 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 react, 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. Furthermore, when considering reductions in 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 it relies on forecasts regarding actual developments and, in particular, the effects of its regulation, these forecasts must be sufficiently reliable (see BVerfGE 88, 203 1. Does a Member State's legislation 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, 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, cover the minimum level described in Article 17(2) and (5) of Directive 2013/33/EU? If the answer to question 1 is no: 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 cases in which the applicant has previously submitted an application for international protection in another Member State? and on this basis the Federal Office for Migration and Refugees rejected the application as inadmissible under Regulation (EU) No 604/2013 and ordered deportation? Does the question of whether, in this constellation, a subsequent application within the meaning of Article 2q of Directive 2013/32/EU exists depend on 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 meaning that 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, is permissible? In the proceedings before the Federal Social Court concerning the application of Section 1a Paragraph 7 of the Asylum Seekers' Benefits Act (AsylbLG), the Senate was therefore right to consider the compatibility of the provision with European law, 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 the hearing report No. 27/24 of July 26, 2024, available at www.bundessozialgericht.de). This question is clearly applicable to Section 1 Paragraph 4 of the AsylbLG, which is the subject of this dispute. This legal opinion is shared within the social court system. 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 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 June 26, 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 belongs to the EU on the basis of…” The asylum application he submitted, on which a final decision has not yet been made, falls within the group of persons entitled to 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 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 benefits to be granted is based on a level of benefits equivalent to that afforded to nationals. While Article 17(5), second sentence, of Directive 2013/33/EU allows Member States the option of granting applicants for international protection less favorable treatment than their own nationals, the benefits must still correspond to an adequate standard of living (Article 17(2) of Directive 2013/33/EU). The scope of material benefits is determined in the form of cash payments. or vouchers by the Member States, based on the level of benefits that the Member State concerned applies, in accordance with its national legislation or practice, to guarantee its own nationals an adequate standard of living (Article 17(5) of Directive 2013/33/EU). Less favorable treatment compared to nationals is permitted, in particular where material support is provided partly in the form of benefits in kind or where 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 in the context of 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, point 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. The applicant, according to the available information, had not violated the accommodation assignment or failed to comply with his obligations to provide information and report. Nor had he submitted a subsequent application pursuant to Article 2(q) of Directive 2013/32/EU. On the contrary, the applicant had not submitted an asylum application at all, meaning that it had not been definitively rejected, he had not expressly withdrawn such an application, and he had not been rejected by the asylum authority 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, were already lacking. 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 April 1, 2025, against the respondent's decision of March 19, 2025, be reinstated and that the respondent be ordered by way of preliminary injunction to grant the applicant, provisionally and subject to the right of recovery, the requested benefits in the statutory amount from the date of receipt of this application by the court, until a final and binding decision is reached on the applicant's objection of April 1, 2025, against the respondent's decision of March 19, 2025, taking into account the legal opinion of the court.
The respondent requests that
the application be rejected.
He is of the opinion that the application for interim relief is unfounded, as the applicant's interest in a stay of execution does not outweigh the authority's interest in enforcement in this case. The decision of March 19, 2025, is not manifestly unlawful. Furthermore, the applicant's asserted claim to an injunction and grounds for an injunction do not exist. For a more detailed explanation, reference is made in full to the decision of March 19, 2025. Insofar as the decision, under "I.", reproduces the wording of Section 1 Paragraph 4 Sentence 1 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG), this constitutes a manifest error pursuant to Section 42 of the Administrative Procedure Act (HVwVfG). This is also evident from the fact that, under "II." in the decision... The authority bases its decision on Section 1 Paragraph 4 Sentence 1 Number 2 of the Asylum Seekers' Benefits Act (AsylbLG), stating that the applicant's asylum application was rejected as inadmissible pursuant to Section 31 Paragraph 6 of the Asylum Act (AsylG), and that his deportation to the Member State Netherlands was ordered pursuant to Section 34a Paragraph 1 Sentence 1, second alternative, of the Asylum Act (AsylG), and that it was determined that the applicant's departure was legally and factually possible. Section 1 Paragraph 4 Sentence 1 Number 2 of the Asylum Seekers' Benefits Act (AsylbLG) is not contrary to EU law. Member States – and thus all national authorities – are obliged to enforce the obligation to leave the country on the basis of Regulation (EU) No. 604/2013. The restriction of benefits pursuant to Section 1 Paragraph 4 Sentence 1 Number 2 of the Asylum Seekers' Benefits Act (AsylbLG) is intended to safeguard this obligation to leave the country at the level of benefit law (referral decision of the Federal Social Court (BSG) of July 25, 2024, BeckRS 2024, 25076, para. 12; Bundestag printed matter 20/12805, p. 21). Regulation (EU) No. 604/2013 is directly applicable European law. This directly applicable European law takes precedence over Directive 2013/33/EU, which is not directly applicable, and national constitutional law. Pursuant to Article 29 Paragraph 1 Sentence 1 of Regulation (EU) No. 604/2013, Member States are directly obliged to carry out the transfer of the asylum seeker if their application is rejected as inadmissible on the basis of the Regulation. The applicant, as the benefits authority, must comply with this obligation to transfer asylum seekers and is therefore required to implement a restriction of benefits – as stipulated in Section 1 Paragraph 4 Sentence 1 Number 2 of the Asylum Seekers' Benefits Act (AsylbLG) – to facilitate the transfer. Asylum seekers falling under the provisions of Section 1 Paragraph 4 Sentence 1 Number 2 of the AsylbLG would receive bridging benefits for a period of two weeks. Within this period, it is reasonable to expect asylum seekers to leave the Federal Republic of Germany and return to the Dublin State that has exclusive responsibility for their asylum procedure (Bundestag Printed Matter 20/12805, p. 31). Without the provision of Section 1 Paragraph 4 Sentence 1 Number 2 of the AsylbLG, the already poorly functioning Dublin system would collapse. The provision is therefore required under European law to ensure the practical implementation of the Dublin Regulation (see also LPK-SGB XII/Birk AsylbLG § 1 para. 26). Furthermore, there is no violation of constitutional law. In this context, reference is made to the convincing reasoning of the Osnabrück Social Court (decision of January 27, 2020 – S 44 AY 76/19 ER, BeckRS 2020, 669). According to the Federal Constitutional Court, considerations of migration policy, 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, may not justify lowering the standard of benefits below the physical and socio-cultural subsistence level (NVwZ 2012, 1024). However, these reasoning refers specifically to the general calculation of the standard benefit rate. The Federal Constitutional Court's statements are decisive only for this area. The granting of benefits taking into account a benefit reduction pursuant to Section 1 Paragraph 4 Sentence 1 Number 2 of the Asylum Seekers' Benefits Act (AsylbLG) is not, however, a regular granting of benefits pursuant to Section 3 AsylbLG. The standard rates are therefore not generally kept low to prevent migration, but rather a reaction to a specific situation. According to the explanatory memorandum to the law, migration policy considerations do not underlie the provision of Section 1 Paragraph 4 Sentence 1 Number 1 AsylbLG. Rather, as evidenced by the explanatory memorandum to the law, the legislature justifiably assumed that the affected group of persons were generally foreigners who, as a matter of general assumption, had only recently entered Germany, and that it was therefore justified to assume that, as a rule, it would not involve any disproportionate effort for them to leave Germany again at short notice and return to the country responsible for examining their application for international protection under the Dublin Regulation (Bundestag printed matter 20/12805, p. 31). Section 1, paragraph 4, sentence 1, number 2 of the Asylum Seekers' Benefits Act (AsylbLG) concerns the specific provision of benefits to accompany an obligation to leave the country based on Regulation (EU) No. 604/2013, which is not objectionable under constitutional law. Regulation (EU) No. 604/2013 takes precedence over the national constitution.
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.
1. The application for an order suspending the effect of the applicant's objection to the decision of 19 March 2025 is admissible.
The objection has no suspensive effect pursuant to Section 11 Paragraph 4 No. 1 AsylbLG, since the respondent revoked the decision of January 20, 2025, concerning the grant of benefits pursuant to Section 45 SGB X in conjunction with Section 9 Paragraph 4 No. 1 AsylbLG, with the contested decision of March 19, 2025.
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 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 Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG), persons entitled to benefits under Paragraph 1 Number 5 who have 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, which continues to exist, (No. 1) or (No. 2) 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.
According to sentence 2, foreigners in need of assistance who fall under sentence 1 will be granted limited assistance once within two years, until their departure, but for a maximum period of two weeks, in order to bridge the period until their departure (bridging benefits); the two-year period begins with the receipt of the bridging benefits according to sentence 2.
The provision was amended with effect from October 31, 2024, by the Act to Improve Internal Security and the Asylum System of October 25, 2024 (Federal Law Gazette 2024 I No. 332; Bundestag Printed Paper 20/12805, draft bill; Bundestag Printed Paper 20/13413, recommendation for a resolution and report of the Committee on Internal Affairs and Community) by the exclusion of benefits for so-called Dublin III cases in No. 2. Prior to the amendment, this group of persons was subject to a restriction of entitlement under Section 1a Paragraph 7 of the Asylum Seekers' Benefits Act (AsylbLG), which has since been repealed (Frerichs in: Schlegel/Voelzke, jurisPK-SGB XII, 4th ed., Section 1 AsylbLG (as of March 31, 2025), marginal note 12_1). There is a systematic link between the exclusion from benefits under Section 1 Paragraph 4 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) for persons subject to enforceable deportation orders (Section 1 Paragraph 1 No. 5 AsylbLG) who have already been granted international protection in another state (see paragraphs 193 et seq.) and the restriction of entitlement under Section 1a Paragraph 4 Sentence 2 AsylbLG (Frerichs in: Schlegel/Voelzke, jurisPK-SGB XII, 4th edition, Section 1 AsylbLG (as of March 31, 2025), paragraph 19).
The requirements of Section 1 Paragraph 4 No. 2 of the Asylum Seekers' Benefits Act (AsylbLG) appear to be met upon preliminary review. Therefore, the respondent's decision is likely to be unobjectionable. However, until the applicant's actual deportation, significant constitutional and European law concerns exist regarding the exclusion from benefits (see also Social Court Karlsruhe, decision of February 25, 2025 – S 12 AY 379/22 ER –, juris). It cannot be conclusively determined here whether the action would be successful on the merits. This is because, in weighing the consequences, the referral decision of the Federal Social Court of July 25, 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) also have direct implications for the relevant provision here and are thus significant with regard to the protection of fundamental rights. The answers to these questions are likely to have a direct impact on the restriction of benefits under Section 1 Paragraph 4 No. 2 of the Asylum Seekers' Benefits Act (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 basic humane care until actual deportation takes place must be given priority.
2. Insofar as the applicant additionally seeks the granting of provisional benefits for the period in dispute pursuant to Section 86b Paragraph 2 of the Social Court Act (SGG), the necessary legal interest is lacking. Due to the order granting suspensive effect to the objection against the decision revoking the benefits, the benefit decision is reinstated, so that the applicant's request has already been fulfilled.
Accordingly, the application was partially granted.
The decision on costs is based on § 193 SGG and follows the outcome of the proceedings.
The following is information on legal remedies.
