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 30th Chamber of the Social Court of Gießen decided on April 14, 2025, through the presiding judge, Judge xxx of the Social Court:
1. The suspensive effect of the applicant's objection of 02.04.2025 against the decision of 27.03.2025 is ordered.
2. The respondent shall reimburse the applicant for the necessary extrajudicial costs of the proceedings.
3. The applicant is granted legal aid for the first instance application proceedings with the appointment of Mr. Sven Adam, Attorney at Law, Lange-Geismar-Straße 55, 37073 Göttingen.
REASONS
I.
The applicant was born on xxx in Tehran/Iran, is an Iranian national and first entered the federal territory on 13.01.2025.
The applicant was registered at the initial reception center of the state of Hesse on January 22, 2025.
His asylum application was submitted to the responsible branch office of the Federal Office for Migration and Refugees (BAMF) in Gießen on January 28, 2025. By decision dated February 7, 2025, the applicant was granted benefits pursuant to Section 3 in conjunction with Section 3a of the Asylum Seekers' Benefits Act (AsylbLG) from January 22, 2025.
The asylum application was rejected as inadmissible by the Federal Office for Migration and Refugees (BAMF) on February 19, 2025, pursuant to Section 29 Paragraph 1 Number 1 of the Asylum Act (AsylG), and deportation to Switzerland was ordered. The decision has been final since March 8, 2025.
By letter dated March 3, 2025, the applicant was given the opportunity, with regard to a planned termination of benefits pursuant to Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG), to present reasons that would preclude the exclusion of benefits and to respond within 14 days of receiving the letter, in accordance with Section 28 of the Hessian Administrative Procedure Act (HVwVfG). The applicant received the hearing notice on March 5, 2025. The applicant answered "No" to each of the following checkable questions in the questionnaire of the hearing notice dated March 3, 2025:
– Do you or your children require assistance to overcome particular hardship?
– Is your need temporary?
By notice of termination dated 27 March 2025, the benefits under Section 3a AsylbLG were then terminated and bridging benefits were granted in accordance with Section 1 Paragraph 4 No. 2 AsylbLG for a maximum of 2 weeks until 15 April 2025.
An objection was lodged against this decision by letter dated 02.04.2025.
For further details, please refer to the contents of the performance file.
II.
The admissible application for an interim injunction is well-founded.
The application for an order suspending the effect of the applicant's timely and therefore admissible objection of April 2, 2025, against the decision of March 27, 2025, is admissible pursuant to Section 86b Paragraph 1 Sentence 1 No. 2 of the Social Court Act (SGG), because the decision of January 16, 2025, is a so-called continuing administrative act. Following the order suspending the effect of the objection against the termination decision of March 27, 2025, the effect of the amendment by this decision is temporarily suspended, so that the benefits granted in the decision of February 7, 2025, are to continue to be granted to the applicant for the time being.
The applicant has thus fully achieved his legal protection objective, so that a regulatory order is not necessary.
Pursuant to Section 86b Paragraph 1 Sentence 1 Number 2 of the Social Court Act (SGG), the courts may, upon application, which is admissible even before filing a lawsuit in accordance with Section 86b Paragraph 3 SGG, order the suspensive effect in whole or in part in cases where an objection or appeal does not have suspensive effect. The applicant's objection of April 2, 2025, against the decision of March 27, 2025, does not have suspensive effect, as the legislator has stipulated this in accordance with Section 86a Paragraph 2 Number 4 SGG in conjunction with Section 11 Paragraph 4 Number 2 of the Asylum Seekers' Benefits Act (AsylbLG).
An application for an order suspending the enforcement of an administrative act pursuant to Section 86b Paragraph 1 Sentence 1 Number 2 of the Social Court Act (SGG) is justified if the applicant's private interest in suspending the enforcement of the contested decision until a decision is reached in the main proceedings (private interest in suspension) outweighs the respondent's public interest in its immediate enforcement (public interest in enforcement). The necessary balancing of the private interest in suspension and the public interest in enforcement must be guided by the prospects of success in the main proceedings, because there is generally no public interest in the enforcement of an unlawful decision, whereas in the case of a lawful decision, the public interest generally takes precedence due to the legally mandated immediate enforceability. In addition, all other circumstances of the individual case that speak for and against immediate enforceability must be weighed against each other, in particular the specific public interest in enforcement in the individual case, the extent of the threatened infringement of rights, and the consequences that the immediate enforcement of an unlawful decision on the one hand and the suspension of the immediate enforcement of a lawful decision on the other would entail. The lower the prospects of success on the merits, the more weight must be given to the other circumstances arguing against immediate enforcement.
However, particularly when withdrawing subsistence benefits, it must be noted that, due to the fundamental rights weight of the benefit, the legislative assessment for immediate enforceability may be superseded in individual cases during the balancing of interests, even if there are no serious doubts about the legality of the administrative act. In such cases, a comprehensive balancing of interests and consequences may be necessary (see Berchtold, Sozialgerichtsgesetz, SGG, § 86b, Rn. 18, beck-online).
In the present case, the applicant's private interest outweighs the respondent's public interest with regard to the cessation of benefits no later than April 15, 2025, because there is no legitimate public interest in the enforcement of the contested administrative act. The order contained therein is likely unlawful and violates the applicant's subjective rights. The revocation of the previous benefit award is unlawful, as it presumably violates European and constitutional law.
The unconstitutionality of the regulation would, in a main proceeding, require the court to obtain a ruling from the Federal Constitutional Court (BVerfG) pursuant to Article 100 Paragraph 1 of the Basic Law. While the BVerfG's monopoly on declaring laws unconstitutional means that a court may only draw conclusions from its finding of unconstitutionality in the main proceeding after the BVerfG has established this finding, Article 100 Paragraph 1 of the Basic Law does not prevent lower courts from granting preliminary legal protection based on their legal opinion even before the BVerfG's decision in the main proceeding, provided that this appears necessary in the interest of effective legal protection under the circumstances of the case and does not prejudge the main proceeding (BVerfG, Decision of June 24, 1992 – 1 BvR 1028/91 –, para. 29).
According to the legal opinion of the adjudicating court, Section 1 Paragraph 4 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) is probably both contrary to European law and unconstitutional and should therefore remain unapplied.
According to higher court rulings, applicants for international protection – and thus also rejected Dublin cases – are subject to the provisions of the EU Reception Directive (ECJ, Judgment of 27 September 2012 – C-179/11, BSG, Order for Suspension and Referral of 25 July 2024 – B 8 AY 6/23 – para. 17). In its aforementioned decision of 25 July 2024, the German Federal Social Court (BSG) referred the question to the European Court of Justice (ECJ) as to whether a regulation of a Member State which grants applicants for international protection, depending on their status as persons subject to enforceable deportation within the transfer period under Regulation (EU) No 604/2013, exclusively an entitlement to accommodation, food, personal and health care and treatment in case of illness, as well as, depending on the circumstances of the individual case, clothing and household goods that cover the minimum level described in Article 17(2) and (5) of Directive 2013/33/EU.
A national regulation that – like Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) in its former version – only provides for bridging benefits for two weeks is therefore likely also insufficient to meet European legal requirements. Furthermore, the exclusion of bridging benefits in the form of cash payments under Section 1 Paragraph 4 Sentence 5 Clause 2 of the AsylbLG violates Article 2(g) of Directive 2013/33/EC, which stipulates that, in addition to accommodation, food, and clothing, cash payments must be provided as material benefits to cover daily needs during the reception process. According to the case law of the European Court of Justice (ECJ), German authorities and courts are obligated under European law to disapply any regulation that violates European law in order to ensure the continued effective application of EU law. A national court must ensure the full effectiveness of EU law and, if necessary, disapply any conflicting provision of national law on its own authority (see ECJ, Case 106/77, Judgment of 9 March 1978, ECJ Simmenthal II).
The applicant has credibly demonstrated that the decision of March 27, 2025, is likely to prove unlawful. He has presented compelling reasons that argue against the legality of this decision. Under these circumstances, the applicant's private interest, which can assert an infringement of his fundamental right to a dignified minimum standard of living (Article 1, Paragraph 1, Sentence 1 of the Basic Law in conjunction with the social welfare principle, Article 20, Paragraph 1 of the Basic Law), outweighs the public interest in enforcing the benefit reduction.
In the court's opinion, Section 1 Paragraph 4 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) therefore violates the European legal provisions on minimum standards of care during asylum proceedings under Articles 17 to 20 of the Reception Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 (Directive 2013/33/EU), because Article 20 Paragraph 5 Sentence 1 of Directive 2013/33/EU expressly requires that decisions on the restriction or withdrawal of benefits granted in the context of reception (Article 2(g) of Directive 2013/33/EU) must be made in accordance with the principle of proportionality. According to the ruling of the Federal Constitutional Court of July 18, 2012 (1 BvL 10/10, 1 BvL 2/11 – juris), considerations of migration policy aimed at keeping benefits for asylum seekers and refugees low in order to avoid incentives for migration through a potentially higher level of benefits compared internationally cannot, in principle, 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 (GG) cannot be relativized for migration policy reasons (cf. Federal Constitutional Court, July 18, 2012 – 1 BvL 10/10, 1 BvL 2/11 – juris).
While it is true that the Federal Office for Migration and Refugees (BAMF) deemed the asylum application inadmissible and threatened to deport the applicant to the Member State responsible for the asylum procedure – in this case, Switzerland – the actual implementation of this requires at least some action by the immigration authorities in the form of a legally binding deportation order from the BAMF.
Section 1, paragraph 4, sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) is also likely to violate the fundamental right to a dignified minimum standard of living under Article 1, paragraph 1 of the Basic Law (GG) in conjunction with Article 20, paragraph 1 of the Basic Law (GG). Section 1, paragraph 4, sentence 1 of the AsylbLG constitutes a complete exclusion from benefits, intended to discourage entry and motivate departure from Germany by withholding a material basis for subsistence. As such, the exclusion from benefits is all the more unconstitutional. Even less severe measures, such as mere reductions in benefits, may not be justified on migration policy grounds, while respecting fundamental rights (Frerichs in: Schlegel/Voelzke, jurisPK-SGB XII, 4th ed., § 1 AsylbLG (as of December 23, 2024), para. 55), because a complete exclusion of benefits for persons who are actually still residing in Germany is incompatible with the temporary scope of the fundamental right under Article 1 Paragraph 1 of the Basic Law in conjunction with Article 20 Paragraph 1 of the Basic Law. According to the so-called principle of immediacy (or "principle of currentity"), a life of human dignity, including the socio-cultural minimum, must be guaranteed from the beginning of residence in the Federal Republic of Germany until its end. Even a short duration or prospect of stay does not justify limiting the right to a dignified minimum standard of living to securing physical existence (Frerichs in: Schlegel/Voelzke, jurisPK-SGB XII, 4th ed., § 1 AsylbLG (as of 23.12.2024), para. 54 ff.). Ensuring basic needs/the minimum standard of living is a human right that must be realized where the person actually resides.
A departure of a person that may be politically desirable but can only be legally realized through further steps by another authority cannot be "forced" under the rule of law by denying the person the minimum subsistence level, but must be carried out in accordance with the law by the immigration authorities, e.g. through deportation proceedings.
In the present case, the application for interim relief should be granted because the applicant's interest in a postponement outweighs the interest in enforcement.
The applicant is to be granted legal aid for the present expedited proceedings, including the appointment of his legal representative. Pursuant to Sections 73a of the Social Court Act (SGG) and 114 of the Code of Civil Procedure (ZPO), a party who, due to his personal and financial circumstances, cannot afford the costs of litigation, or can only afford them in part or in installments, is entitled to legal aid upon application, provided that the intended legal action or defense has a reasonable prospect of success and does not appear frivolous. According to Section 115 of the Code of Civil Procedure, the party must use his income and assets in accordance with the statutory provisions. Since the applicant receives asylum seeker benefits, he is unable, due to his personal and financial circumstances, to finance the litigation from his own resources. For the reasons stated above, his application for expedited proceedings also has a reasonable prospect of success and is not frivolous.
The decision on costs follows from the corresponding application of Section 193 of the Social Court Act (SGG).
The following is information on legal remedies.
