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 22, 2025, through the presiding judge, Judge xxx of the Social Court:
1. The suspensive effect of the applicant's objection of 20 March 2025 against the respondent's decision of 27 February 2025 is ordered.
2. The respondent shall reimburse the applicant for the necessary extrajudicial costs of the proceedings.
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, born in 1991 and of Afghan nationality, submitted an asylum application on July 29, 2024.
By decision of 16 August 2024, amended by the decision of 12 December 2024, the respondent granted benefits from 23 July 2024 in accordance with Sections 3 in conjunction with 3a and, where applicable, Section 16 of the Asylum Seekers' Benefits Act (AsylbLG).
By decision of the Federal Office for Migration and Refugees (BAMF) dated May 8, 2023, the applicant was ordered to be deported to Austria. He was legally obligated to leave the country effective October 1, 2024. By court decision of the Darmstadt Administrative Court, file number 3 K 2382/24.DA.A, dated April 3, 2025, the asylum application was definitively rejected as inadmissible.
The night-time order, imposing the obligation to report absence for the period from 00:00 to 6:00 on January 22, 2025, was issued. On January 27, 2025, the applicant was not found at his assigned accommodation before 06:00 during an attempted deportation. In a note left behind, the applicant stated that his brother's wife had recently given birth and had asked him to come and support her.
By letter dated 31 January 2025, the respondent heard the applicant pursuant to Section 28 of the Hessian Administrative Procedure Act (HVwVfG) regarding the intended restriction of entitlement pursuant to Section 1a of the Asylum Seekers' Benefits Act (AsylbLG).
By decision dated February 27, 2025, the respondent revoked the decision of December 12, 2024, and, applying the restriction of entitlement pursuant to Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG), granted benefits only to cover the need for food and accommodation, including heating, personal hygiene, and healthcare, effective April 1, 2025. These benefits would be provided in kind. The reduction amount included the benefits granted in the decision of December 12, 2024, totaling €196.00. This amount comprised the cash allowance of €173.00 and the public transport ticket provided as a benefit in kind, valued at €23.00. This provision initially applied for a period of six months.
The respondent amended the decision of 27 February 2025 to the effect that benefits would henceforth be granted in the form of a payment card.
By letter dated March 20, 2025, the applicant, through his legal representative, lodged an objection and on April 1, 2025, filed an application for preliminary legal protection with the Darmstadt Social Court.
He is of the opinion that the claim for an injunction exists. According to the decision of the Federal Constitutional Court of 5 November 2019 under file number 1 BvL 7/16 (Sanctions), the sanction at issue here cannot be constitutional. The Lower Saxony-Bremen State Social Court therefore correctly stated verbatim in a judicial notice dated November 6, 2019, in the proceedings under file number L 8 AY 14/19 B ER:
“After a preliminary review of the facts and the law, yesterday’s decision of the Federal Constitutional Court (BVerfG) of November 5, 2019 (-1 BvL 7/16 – juris) regarding sanctions under the German Social Code, Book II (SGB II), is likely to raise anew the fundamental question of the compatibility of the restrictions on benefits under Section 1a of the Asylum Seekers’ Benefits Act (AsylbLG) with the fundamental right to a dignified minimum standard of living (Article 1 Paragraph 1 of the Basic Law in conjunction with Article 20 Paragraph 1 of the Basic Law). In this respect, the following questions arise (also) in the present proceedings:
Is the legislature’s decision to provide for burdensome restrictions on benefits in the Asylum Seekers’ Benefits Act (AsylbLG) to enforce obligations to cooperate under asylum and residence law compatible with a legitimate aim?” Are they fundamentally compatible with the Basic Law (cf. Federal Constitutional Court, loc. cit., para. 126 et seq.; affirmed, inter alia, by the Federal Social Court, judgment of May 12, 2017 – B 7 AY 1/16 R – juris para. 29 et seq.)?
Do the elements and legal consequences of the benefit restrictions under Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) (cf. in this respect the legal consequence of Section 1a para. 1 sentences 2 to 4 of the AsylbLG, as amended on August 15, 2019, Federal Law Gazette I 1294, which has been uniformly applicable to all restrictions since August 21, 2019) meet the strict requirements of proportionality for a benefit restriction stipulated by the Federal Constitutional Court (cf. Federal Constitutional Court, loc. cit., para. 129 et seq., 132 et seq.)?
Is the choice and design of the benefit restriction concept under Section 1a of the AsylbLG based on a Is the legislature's assessment constitutionally sound? Is there sound evidence to demonstrate the suitability, necessity, and proportionality of these sanctions (cf. Federal Constitutional Court, loc. cit., para. 134)?
Do the restrictions on entitlement under Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) take into account other fundamental rights, such as the protection of the family under Article 6 of the Basic Law (GG) or the protection of health under Article 2, paragraph 2 of the
Basic Law (GG) (cf. Federal Constitutional Court, loc. cit., para. 135)? These questions, which are not easy to answer, require a comprehensive examination from both a factual and a legal perspective. In preliminary injunction proceedings, a judicial decision based on a balancing of interests is also possible at present (cf. Federal Constitutional Court, decision of May 12, 2005 – 1 BvR 569/05 – juris).
This applies insofar as the restriction on entitlement is based on entry into Germany for the purpose of receiving benefits. (until August 20, 2019, Section 1a Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG), now Section 1a Paragraph 2 of the AsylbLG, Federal Law Gazette 2019, p. 1294), the compatibility of this provision with the Basic Law (Article 1 Paragraph 1 of the Basic Law in conjunction with Article 20 Paragraph 1 of the Basic Law) is fundamentally questionable, because a sanction must not repressively punish misconduct, but must be aimed at ensuring that obligations to cooperate are fulfilled (cf. Federal Constitutional Court, loc. cit., para. 131).
The Higher Social Court of Lower Saxony-Bremen supplemented these legal concerns with its decision on legal aid dated December 4, 2019, under file number L 8 AY 36/19 B ER. This decision can also be submitted to the court file at any time.
The questions formulated in this decision already point to the unconstitutionality of the provision in Section 1a of the Asylum Seekers' Benefits Act (AsylbLG).
While the court cannot reject Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) due to doubts about its constitutionality, a judicial decision must be made in the preliminary injunction proceedings in light of the questions raised. In this context, and considering the aforementioned arguments, the court believes that the only possible outcome is to suspend the benefit reduction until the main proceedings are concluded. This is all the more true since a reduction of the standard benefit by more than 50% is incompatible with Article 1 of the Basic Law (GG). The application should therefore be granted in this respect. The grounds for an injunction are also present. The applicant's constitutionally guaranteed minimum subsistence level is currently no longer secure. If subsistence-level benefits are not available, grounds for an injunction within the meaning of Section 86 Paragraph 2 Sentence 2 of the Social Court Act (SGG) are generally assumed to exist.
The applicant requests that
the suspensive effect of the applicant's objection of 20 March 2025 against the decision of the respondent of 27 February 2025 (file no.: VII 73 – 24129 / 2024 Rh) be ordered.
The respondent requests that
the application be rejected.
He is of the opinion that the application for interim relief is manifestly 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. The existence of grounds for an injunction – the urgency of the requested preliminary ruling – has not been credibly demonstrated. The applicant merely claims a general shortfall in the subsistence level without specifying this in any way. The applicant has not credibly demonstrated any state of emergency. The applicant has not even begun to explain what the shortfall is supposed to be and to what extent. The existence of the prerequisites for the claim to an injunction – the legal position whose enforcement in the main proceedings is intended – has also not been sufficiently credibly demonstrated. The decision of February 27, 2025, is lawful and does not infringe upon the applicant's rights. The applicant is not entitled to higher benefits under the Asylum Seekers' Benefits Act (AsylbLG). For a more detailed explanation, reference is made in full to the statements in the decision of February 27, 2025. Pursuant to Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG), the applicant is only entitled to benefits to cover his needs for food and accommodation, including heating, as well as personal hygiene and healthcare. The restriction of benefits under Section 1a Paragraph 3 of the AsylbLG was imposed here due to the fact that deportation measures could not be carried out for reasons attributable to the applicant himself. The applicant belongs to the group of persons covered by Section 1a Paragraph 3 in conjunction with Section 1 Paragraph 1 Number 5 of the AsylbLG. Deportation measures within the meaning of Section 1a Paragraph 3 of the AsylbLG were taken against him. Due to his absence from the room assigned to him in the initial reception center of the State of Hesse in Darmstadt on January 27, 2025, the applicant is responsible for the fact that the deportation measure concerning him could not be carried out. The applicant failed to remain in the assigned accommodation despite a "nighttime order." The applicant thereby violated a so-called nighttime order issued to him on January 22, 2025, by the Central Immigration Authority in Gießen pursuant to Section 46 Paragraph 1 Sentence 1 of the Residence Act. He failed to provide any indication of his current whereabouts, as required by the nighttime order. Furthermore, the applicant presented no circumstances that might negate his responsibility for his actions. Nor are any indications of such circumstances apparent. The applicant is therefore responsible for the fact that the measure terminating his residence could not be enforced. Contrary to the arguments of his legal representative, limiting benefits to what is "absolutely necessary" within the meaning of Section 1a of the Asylum Seekers' Benefits Act does not raise any fundamental constitutional concerns. According to the Federal Constitutional Court's reasoning in its decision of May 12, 2021 – Case No. 1 BvR 2682/17 – this restriction of benefits is still compatible with the right to a guaranteed minimum standard of living in cases where the obligation to leave the country is unenforceable for reasons attributable to the claimant. Therefore, the application for preliminary legal protection must be rejected.
In a written submission dated April 15, 2025, the respondent further argued that Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) should be interpreted restrictively to the effect that a reduction in benefits under this provision could only be considered from the point in time at which deportation measures cannot be carried out for a reason attributable to the benefit recipient. The wording of Section 1a Paragraph 3 of the AsylbLG, which provides for a reduction in benefits from the day following the enforceability of the deportation order, is incompatible with the purpose of the provision. Moreover, such an early reduction in benefits is not feasible in administrative practice. The purpose of Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) is to sanction conduct that is inconsistent with immigration law, thereby creating incentives for compliance with these regulations (Siefert/Siefert AsylbLG § 1a Rn. 3; BT-Drs. 13/10155, BT-Drs. 13/11172). However, a sanction in the form of a benefit reduction can only be considered if the benefit recipient can actually be accused of immigration law violations. Only from this point onward can a sanction be meaningful. Legal literature also links the period of potential benefit restrictions to the duration of the abusive conduct (BeckOK SozR/Korff AsylbLG § 1a Rn. 21; Siefert/Siefert AsylbLG § 1a Rn. 45; Cantzler, AsylbLG, § 1a Rn. 79). If the commencement of benefit reductions were linked to the enforceability of the deportation order, the reduction would be made dependent on a circumstance beyond the control of the benefit recipient. Furthermore, it must be considered that, in administrative practice, a benefit reduction from the moment the deportation order becomes enforceable is not feasible. Preparing for a deportation attempt regularly takes months. Therefore, the conditions for a benefit reduction under Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) can only be met months later. A retroactive benefit reduction from the point at which the deportation order becomes enforceable is not procedurally permissible. Section 45 of the German Social Code, Book X (SGB X) only permits the revocation of initially unlawful benefit awards, which is not a case covered by Section 1a Paragraph 3 of the AsylbLG. Section 48 of the German Social Code, Book X (SGB X) only allows for the future revocation of a benefit award from the point in time at which all the prerequisites for a benefit reduction under Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) are met, including, in particular, the obstruction of a deportation attempt attributable to the benefit recipient. Ultimately, the six-month benefit reduction stipulated by law (Section 14 Paragraph 1 AsylbLG) from the point at which the deportation order becomes enforceable is not practically enforceable. The purpose of Section 1a Paragraph 3 AsylbLG, namely to enforce immigration law, cannot therefore be effectively achieved in legal practice. The wording of the provision must therefore be interpreted restrictively.
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 applicants' objection to the decision of 27 February 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 request was to be granted, as the decision of 27 February 2025 is clearly unlawful.
With the contested decision of 27 February 2025, the respondent revoked the decision of 12 December 2024 and granted benefits pursuant to Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) from 1 April 2025.
According to Section 1a Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG), those entitled to benefits under Section 1 Paragraph 1 Number 5, for whom a departure date and a means of departure have been established, are no longer entitled to benefits under Sections 2, 3, and 6 from the day following the departure date, unless the departure could not be carried out for reasons beyond their control. Until their departure or deportation, they will only receive benefits to cover their needs for food and accommodation, including heating, as well as personal hygiene and healthcare. Only in exceptional circumstances may they be granted other benefits as defined in Section 3 Paragraph 1 Sentence 1. These benefits should be provided in kind.
According to paragraph 3, persons entitled to benefits under section 1 paragraph 1 numbers 4 and 5, for whom measures terminating their residence cannot be carried out for reasons attributable to themselves, shall only receive benefits in accordance with paragraph 1 from the day following the enforceability of a deportation threat or a deportation order.
For the period from April 1, 2025, it is irrelevant whether the other requirements of Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) are met, since the period of benefit restriction had already expired by April 1, 2025. The Chamber concurs with the reasoning of the Higher Social Court (HLSG) in its decision of November 11, 2024, under file number L 4 AY 13/24 B ER. According to this decision, Section 1a No. 2 of the Asylum Seekers' Benefits Act (AsylbLG) specifies a fixed point in time for the commencement of benefit restriction. The respondent's arguments regarding the determination of the commencement of benefit restriction as the time of the violation of the night-time order are understandable, but contradict the clear wording of the provision. According to Section 1a Paragraph 3 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG), the commencement of the benefit restriction is determined to be the day following the enforceability of a deportation threat or order (Oppermann in: Schlegel/Voelzke, jurisPK-SGB XII, 4th ed., Section 1a AsylbLG (as of January 14, 2025), marginal note 74_1). Thus, the benefit restriction commences on the day after the event triggering the suspension period and is to be implemented in accordance with administrative procedure law (Higher Social Court of Hesse, decision of November 11, 2024, L 4 AY 13/24 – juris). Therefore, taking into account the deportation order, which became enforceable on October 1, 2024, the benefit restriction could not begin before October 2, 2024, and ended on April 1, 2025.
The application was therefore to be granted.
The decision on costs is based on § 193 SGG and reflects the outcome of the proceedings.
The following is information on legal remedies.
