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 10, 2025, through its presiding judge, Judge xxx of the Social Court:
1. The suspensive effect of the applicant's objection of 04.04.2025 against the respondent's decision of 24.03.2025 is ordered.
2. The respondent shall 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 14 January 2025 and submitted a formal asylum application on 20 January 2025.
By decision dated 22 January 2025, the applicant was granted benefits to cover her 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).
The Federal Office for Migration and Refugees (BAMF) rejected the applicant's asylum application as inadmissible by decision dated 19 February 2025 and ordered her deportation to France.
The respondent then notified the applicant by letter dated March 6, 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 she had submitted an unsuccessful asylum application in France. She explained that she had not been able to integrate anywhere because she could not live safely. She had a cousin in Germany, which is why she felt comfortable there and wanted the opportunity to remain. She needed money for everyday expenses. She believed the termination of benefits was likely contrary to European law and unconstitutional.
By decision dated March 24, 2025, the respondent revoked the decision of January 22, 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 German 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 her departure, but for a maximum period of two weeks until April 10, 2025. The decision of the Federal Office for Migration and Refugees (BAMF) of February 19, 2025, regarding the obligation to leave the country, subsequently revealed facts that justify the issuance of the decision granting benefits under the AsylbLG on January 22, 2025, as 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. Her reliance on the validity of the administrative act is not worthy of protection pursuant to Section 45 Paragraph 2 Sentence 3 Number 2 of the German Social Code, Book X (SGB X), because the administrative act was based on incorrect information, as she had not disclosed that she had already been granted international protection in another country. Gross negligence is present, as she should have been aware that she could not be granted international protection in another country if she had already been granted it in another.
By decision of the Federal Office for Migration and Refugees (BAMF) dated February 19, 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 of France was ordered pursuant to Section 34a Paragraph 1 Sentence 1 Alternative 2 of the Asylum Act (AsylG). It was also determined that departure was legally and practically possible for her. Therefore, the applicant is not entitled to benefits under the Asylum Seekers' Benefits Act (AsylbLG) pursuant to Section 1 Paragraph 4 Number 2 of this Act. Until her departure, but for a maximum of two weeks from the date of notification of this decision to discontinue her benefits, she will receive limited assistance (bridging benefits) pursuant to Section 1 Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG). The bridging benefits would include the benefits under Section 1a Paragraph 1 and Section 4 Paragraph 1 Sentence 1 and Paragraph 2 of the Asylum Seekers' Benefits Act (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 would be provided exclusively in kind.
The granting of financial assistance is excluded. In the hearing on March 6, 2025, the applicant failed to provide sufficient grounds to establish a case of particular hardship. The bridging benefits will cease no later than April 10, 2025, and she must therefore leave the initial reception center of the State of Hesse immediately.
The applicant, through her legal representative, lodged an objection to this decision by letter dated April 4, 2025.
The applicant, through her legal representative, filed an application with the Darmstadt Social Court on April 7, 2025, for an order suspending the effect of the objection.
She 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, in Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1, guarantees a fundamental right to a dignified minimum standard of living and mandates the legislature to actually ensure such a minimum standard of living. If a person lacks the material means necessary to guarantee a life of human dignity because they cannot obtain them from 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 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 for the purpose of achieving 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 recent decision on Section 1a of the Asylum Seekers' Benefits Act (AsylbLG aF) (Federal Constitutional Court, 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 held that Section 1a of the Asylum Seekers' Benefits Act (AsylbLG aF), as interpreted by the Federal Social Court in the challenged decision, was still compatible with constitutional requirements because Section 1a AsylbLG aF did not deprive individuals 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 version of the provision that ultimately determined the case, as interpreted by the Federal Social Court, the responsible agency was to determine the specific needs based solely on the concrete circumstances of each individual case. However, Section 1 Paragraph 4 AsylbLG completely excludes those affected from receiving benefits. Section 1 Paragraph 4 AsylbLG in its current version thus contains precisely the generalized restriction that socio-cultural needs are generally considered dispensable, which, according to the Federal Constitutional Court's jurisprudence, is incompatible with constitutional requirements.
Migration policy considerations cannot, in the first place, justify lowering the standard of living below the physical and socio-cultural minimum for survival. The human dignity guaranteed in Article 1 Paragraph 1 of the Basic Law cannot be relativized by 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 clearly the repressive sanctioning of individual behavior intended to deter others and pressure them into voluntary departure. This is because the restriction of 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 legislature intends to curb unwanted 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, para. 126 et seq.), the only legitimate aim of a benefit-related sanction can be to prevent or overcome existential need (contrary to the Federal Social Court's ruling of May 12, 2017, Case No.: B 7 AY 1/16 R, para. 29 et seq. with further references). This is clearly not the case here.
Section 1a paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) serves migration policy purposes with a repressive objective. The Hessian State Social Court stated in its decision of March 31, 2020 (Case No.: L 4 AY 4/20 B ER): 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 the provision of a dignified basic standard of living in order to force departure without administrative enforcement (similarly Oppermann, in: Schlegel/Voelzke, jurisPK-SGB XII, § 1a AsylbLG Rn. 209).
Furthermore, the exclusion under 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 such reductions are in clear conflict 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 livelihood, without being able to secure their own livelihood themselves. 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 their need, i.e., securing a dignified existence, particularly through gainful employment. However, the legislator does not pursue any concrete objectives regarding those affected by the exclusion within the framework of Section 1 Paragraph 4 of the AsylbLG. Furthermore, the choice and design of the concept of entitlement restrictions pursuant to Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) lacks a constitutionally sound assessment of its suitability, necessity, and proportionality (cf. 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 in this regard. It follows that the Federal Government has no information on the suitability, necessity, and proportionality of the exclusion under Section 1 para. 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 unlawful conduct. This is because 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 unlawful conduct. Only under this condition can a justified exceptional case within the meaning of Article 20(1) of Directive 2013/33/EU exist. In this case, no unlawful conduct can be attributed to the individual. The individual neither entered Germany unlawfully nor remained there unlawfully. Moreover, 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 pursuant to Section 1 of the Asylum Seekers' Benefits Act (AsylbLG) do not guarantee a dignified standard of living within the meaning of Article 20(5), third sentence, of Directive 2013/33/EU. 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 right 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). Physical and socio-cultural existence 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, 5 November 2019, Case No.: 1 BvL 7/16, 1st Headnote).
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 Federal Social Court concerning the application of Section 1a(7) of the Asylum Seekers' Benefits Act (AsylbLG), the Senate rightly considered 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 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 court system. In this respect, reference is also made to the decisions of the Trier Social Court of February 20, 2025, file number: S 3 AY 4/25 ER; the Landshut Social Court, decision of December 18, 2024, file number: S 11 AY 19/24 ER; the Darmstadt Social Court, decision of February 4, 2025, file number: S 16 AY 2/25 ER; the Karlsruhe Social Court, decision of February 19, 2025, file number: S 12 AY 424/25 ER; and the Speyer Social Court of February 20, 2025, file number: S 15 AY 5/25 ER.
The grounds for the order 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 order 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). Since the prospects of success in the main proceedings are also uncertain due to the unresolved compatibility of Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act with Union law, the respondent is also obligated, in this respect as part of a balancing of interests, to grant the applicant provisionally full benefits.
The applicant requests
that the suspensive effect of the applicant's objection of 04.04.2025 against the respondent's decision of 24.03.2025 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 Number 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 24, 2025. The applicant is entitled to benefits pursuant to Section 1 Paragraph 1 Number 5 of the Asylum Seekers' Benefits Act (AsylbLG). Her asylum application was rejected as inadmissible by a decision of the Federal Office for Migration and Refugees (BAMF) pursuant to Section 29 Paragraph 1 Number 1 in conjunction with Section 31 Paragraph 6 of the Asylum Act. Furthermore, deportation to France was ordered, and it was determined that no grounds for prohibition of deportation existed under Section 60, Paragraphs 5 and 7, Sentence 1 of the Residence Act. Therefore, the applicant's entitlement to benefits under the Asylum Seekers' Benefits Act (AsylbLG) ended, and she could only be granted limited assistance once within a two-year period to bridge the gap until her departure, but for a maximum of two weeks. The applicant was to be granted bridging benefits under Section 1, Paragraph 4 of the AsylbLG until April 10, 2025, at the latest. These benefits comprised the provisions of Section 1a, Paragraph 1, and Section 4, Paragraph 1, Sentence 1, and Paragraph 2 of the AsylbLG, which were provided as benefits in kind. Additional benefits would only be considered in individual cases due to special circumstances and to overcome particular hardship. The applicant had been consulted prior to the intended decision. However, no special circumstances or the existence of particular hardship were found therein. 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 26 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 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 this provision, persons entitled to benefits under Paragraph 1 Number 5, 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 (AsylG), for whom deportation has been ordered pursuant to Section 34a Paragraph 1 Sentence 1 Alternative 2 of the Asylum Act (AsylG), and for whom, according to the 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 applicant falls within the aforementioned group of persons.
It cannot be conclusively determined at this time 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 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 over 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 to France must be given priority.
The decision on costs is based on § 193 SGG and follows the outcome of the proceedings.
The following is information on legal remedies.
