DECISION
In the legal dispute
xxx,
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
– Applicant –
against
City of Halle (Saale), represented by the Mayor, Legal Department,
Marktplatz 1, 06108 Halle
– Respondent –
The 17th Chamber of the Social Court of Halle, without oral proceedings, decided on May 7, 2025, through the presiding judge, Judge xxx of the Social Court:
1. The respondent is ordered by way of preliminary injunction to grant the applicant further monthly payments pursuant to Sections 3, 3a Paragraphs 1 and 2 of the Asylum Seekers' Benefits Act (AsylbLG) in the amount of €19.00 for the period from March 26, 2025 until the final decision on the objection of March 24, 2025, but no later than September 25, 2025.
2. The respondent shall reimburse the applicant for the necessary extrajudicial costs.
REASONS
I.
The applicant is requesting provisionally higher benefits under the Asylum Seekers' Benefits Act (AsylbLG).
The applicant, born on [date redacted], states that he is a national of the Syrian Arab Republic. The decision of the Magdeburg Administrative Court of June 17, 2024, file number 2 B 154/24 MD, indicates that the applicant had submitted a subsequent application pursuant to Section 71 Paragraph 1 Sentence 1 of the Asylum Act. In this decision, the Federal Republic of Germany was ordered, by way of preliminary injunction, to inform the competent immigration authority that the requirements of Section 71 Paragraph 1 Sentence 1 of the Asylum Act were met in the applicant's case. The applicant held a temporary suspension of deportation (Duldung) valid until April 27, 2025. Since November 27, 2024, the applicant has resided in an apartment at [address redacted], 06124 Halle.
After the previously responsible district of Altmarkkreis Salzwedel revoked the applicant's benefits under the Asylum Seekers' Benefits Act (AsylbLG) by decision dated February 3, 2025, effective February 1, 2025, the respondent granted the applicant benefits under the AsylbLG in the amount of €644.50 per month, effective February 2025, by decision dated March 18, 2025. This benefit includes basic benefits pursuant to Sections 3, 3a Paragraphs 1 and 2 of the AsylbLG, including cash benefits to cover necessary personal needs and other necessary expenses in the amount of €397.00 (€177.00 + €220.00). The applicant filed an objection to this decision by means of a letter from his legal representative dated March 24, 2025. He argued that he was entitled to financial benefits to cover his necessary personal needs and the necessary needs according to the standard benefit level 1, and, due to grandfathering provisions, also in the amount of the amounts valid in 2024, namely €460.00 per month.
On March 26, 2025, the applicant applied to the court for preliminary legal protection. He requested that the respondent be provisionally ordered to grant him benefits under the Asylum Seekers' Benefits Act (AsylbLG) at the rate of standard benefit level 1, effective from the date the application was received by the court. In support of his application, he reiterated the arguments presented in his objection.
By amendment notice dated 03.4.2025, the respondent granted the applicant higher basic benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) from February 2025 until further notice, including cash benefits to cover necessary personal needs and necessary expenses in the amount of €441.00 per month (€196.00 + €245.00).
The applicant subsequently stated that there was still a monthly shortfall of €19.00. He is of the opinion that he is entitled to monthly cash benefits of €460.00 pursuant to Sections 3, 3a Paragraph 1 No. 1 and Paragraph 2 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with No. 1 Letter a) and No. 2 Letter a) of the announcement of October 19, 2023 (Federal Law Gazette I, 2023, No. 288, pp. 1-2). The reference in Section 3a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) to the adjustment of the monetary amounts according to Paragraphs 1 and 2 on January 1st of each year in accordance with the rate of change according to Section 28a of the German Social Code, Book XII (SGB XII) in conjunction with the regulation on the adjustment of standard benefit levels according to Section 40 Sentence 1 No. 1 of the German Social Code, Book XII (SGB XII) also includes the reference to the protection clause of Section 28a Paragraph 5 of the German Social Code, Book XII (SGB XII).
The applicant requests that
the respondent be ordered, by way of an interim injunction, to grant the applicant, provisionally and subject to the right of recovery until a final and binding decision is reached on the applicant's objection of March 24, 2025, against the respondent's decision of March 18, 2025 (file no.: 4573.423055) as amended by the decision of April 3, 2025, a further €19.00 per month in benefits under the Asylum Seekers' Benefits Act (AsylbLG) for a period of 6 months, starting March 26, 2025.
The respondent requests that
the applicants' application be rejected.
He considers the applicants' request for preliminary legal protection to be unfounded. The reference in Section 3a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) to the rate of change within the meaning of Section 28a of the German Social Code, Book XII (SGB XII), in conjunction with the Ordinance on the Adjustment of Standard Needs Levels pursuant to Section 40 Sentence 1 No. 1 of the SGB XII, does not include the grandfathering clause of Section 28a Paragraph 5 of the SGB XII. Furthermore, at least according to the amendment notice of April 3, 2025, there is no entitlement to an injunction.
For further details of the facts and the legal arguments, reference is made to the court file and the respondent's performance file.
II.
The application for an interim injunction is admissible and well-founded.
The procedural claim (subject matter of the dispute) of the present preliminary legal protection proceedings is directed at the obligation of the respondent to grant the applicant, by court order, further provisional monetary benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) for the period from March 26, 2025 to September 25, 2025 inclusive, in the amount of €19.00 per month.
The preliminary legal protection sought by the applicant is governed by Section 86b Paragraph 2 Sentence 2 of the Social Court Act (SGG). According to Section 86b Paragraph 2 Sentence 2 SGG, the court of first instance may, upon application, issue a preliminary injunction concerning a disputed legal relationship if such a ruling appears necessary to avert substantial disadvantages. The injunction may be issued if the applicant credibly demonstrates that a right asserted against the respondent exists (claim for an injunction) and that the applicant would suffer substantial disadvantages without the issuance of the requested injunction (ground for an injunction).
The claim for an injunction and the grounds for the injunction are interrelated in such a way that the more likely the existence of the former is, the less stringent the requirements for substantiating the former. Substantiating both the claim for an injunction and the grounds for the injunction is mandatory. This substantiation encompasses not only the underlying facts but also the legal aspects.
A preliminary ruling by court order has proven necessary upon summary review. The applicant has substantiated both the claim and the grounds for the order.
The respondent is ordered to grant the applicant monthly cash benefits in the amount of €460.00 for the period from March 26, 2025 to September 25, 2025, pursuant to Sections 3, 3a Paragraph 1 No. 1 and Paragraph 2 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with No. 1 Letter a) and No. 2 Letter a) of the announcement of October 19, 2023 (Federal Law Gazette I, 2023, No. 288, pp. 1-2). When determining the benefit amount for the partial periods March 26, 2025 to March 31, 2025 and September 1, 2025 to September 25, 2025, it must be taken into account, pursuant to Section 3 Paragraph 5 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG), that the month is calculated as having 30 days.
The applicant is entitled to benefits within the meaning of Section 1 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG). He had submitted a subsequent application pursuant to Section 71 Paragraph 1 Sentence 1 of the Asylum Act (AsylG). Therefore, entitlement to benefits under Section 1 Paragraph 1 Number 7 of the AsylbLG would be possible until the Federal Office for Migration and Refugees (BAMF) decides on the conduct of asylum proceedings. The outcome of the preliminary review procedure has not been communicated. Due to the temporary suspension of deportation (Duldung) valid until April 27, 2025, entitlement to benefits under Section 1 Paragraph 1 Number 4 of the AsylbLG would also be conceivable. Whether the suspension of deportation was extended has also not been communicated. Entitlement to benefits arises at least from Section 1 Paragraph 1 Number 5 of the AsylbLG. According to this provision, foreigners who are actually residing in Germany and who are subject to an enforceable deportation order are entitled to benefits, even if a deportation order is not yet or no longer enforceable. According to Section 50 Paragraph 1 of the German Residence Act (AufenthG), foreigners who do not possess, or no longer possess, a required residence permit and cannot, or no longer possess, a right of residence under the EEC/Turkey Association Agreement are obligated to leave the country. A lawful stay in Germany ends upon the expiration of the residence permit under the conditions of Section 51 Paragraph 1 of the German Residence Act. The obligation to leave the country is enforceable by law under the conditions of Section 58 Paragraph 2 of the German Residence Act.
The consideration of the monetary amounts pursuant to No. 1 lit. a) and No. 2 lit. a) of the announcement of October 23, 2024 (Federal Law Gazette I, 2023, No. 325, pp. 1-2), based on Section 3a para. 4 sentence 3 of the Asylum Seekers' Benefits Act (AsylbLG), led to the granting of benefits in accordance with the respondent's amended decision of April 3, 2025. However, the announcement is not compatible with Section 3a para. 4 sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Section 1 para. 2 sentence 3 of the RBSFV 2025 in conjunction with Section 28a para. 5 of the German Social Code, Book XII (SGB XII).
It is disputed whether the announcement pursuant to Section 3a Paragraph 4 Sentence 3 of the Asylum Seekers' Benefits Act (AsylbLG) is purely informational in nature for the purpose of uniform application of the law and thus merely declaratory, or whether it has a legally binding character (see an overview of the dispute in Frerichs in: Schlegel/Voelzke, jurisPK-SGB XII, 4th ed., Section 3a AsylbLG (as of December 23, 2024), para. 126 et seq.). However, this dispute can remain unresolved here, because either the announcement contains incorrect information from the Federal Ministry of Labor and Social Affairs (BMAS) (if it is merely informational) or it violates higher-ranking law (if it is legally binding).
Pursuant to Section 3a Paragraph 4 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG), Section 28a Paragraph 5 of the German Social Code, Book XII (SGB XII) in conjunction with Section 1 Paragraph 2 Sentence 3 of the Ordinance on the Calculation of Benefits for Asylum Seekers (RBSFV 2025) applies to the calculation of the monetary amounts in Section 3a Paragraphs 1 and 2 of the AsylbLG. This results from the interpretation of Section 3a Paragraph 4 Sentence 1 of the AsylbLG (similarly: Social Court Marburg, Decision of February 14, 2025 – S 16 AY11/24ER –, juris, para. 36 et seq.).
According to the wording of Section 3a Paragraph 4 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG), the monetary amounts pursuant to Section 3a Paragraphs 1 and 2 of the AsylbLG are "adjusted annually on January 1st in accordance with the rate of change pursuant to Section 28a of the Twelfth Book of the Social Code in conjunction with the Ordinance on the Adjustment of Standard Needs Levels pursuant to Section 40 Sentence 1 Number 1 of the Twelfth Book of the Social Code." The adjustment is thus linked to the rate of change.
According to the legislator's intent, Section 3a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) is meant to ensure that the amount of monetary benefits under Section 3a AsylbLG develops analogously to benefits under Book XII of the German Social Code (SGB XII). This can be seen in the legislative materials for the predecessor provision, Section 3 Paragraph 4 AsylbLG (draft bill of the Federal Government of September 22, 2014, Bundestag printed matter 18/2592, page 24 [regarding number 4, letter c]), which expired on August 31, 2019. The text states:
“The previous regulation regarding benefit adjustments in Section 3, Paragraph 3 is replaced by a new regulation regarding the updating of benefits in Paragraph 4. The calculation of benefits under the German Social Code, Book XII (SGB XII) and the Asylum Seekers' Benefits Act (AsylbLG) is based on a uniform data basis from the special evaluation – the 2008 Income and Expenditure Survey (EVS 2008). Since the difference between the maximum calculated needs under the AsylbLG and the SGB XII is only about ten percent, the needs under the AsylbLG can be updated using the same updating mechanism as under the SGB XII.”
This leads to the central consideration for adjusting basic benefits: updating the needs under the AsylbLG using the same “updating mechanism” as under the SGB XII. For the so-called analogous benefits under Section 2 of the AsylbLG, the reference in Section 2, Paragraph 1, Sentence 4 of the AsylbLG to the Standard Needs Assessment Act and Sections 28a and 40 of the SGB XII must also be observed.
Section 28a, paragraph 5 of the German Social Code, Book XII (SGB XII), which came into force on January 1, 2023, became part of this adjustment mechanism. This follows directly from Section 28a, paragraph 1 of the SGB XII (in the version applicable since January 1, 2023). This provision expressly stipulates that for the years until the next recalculation according to Section 28 of the SGB XII, the standard benefit rates are adjusted on January 1st of each year in accordance with paragraphs 2 to 5 of Section 28a of the SGB XII.
Section 28a paragraph 5 of the German Social Code, Book XII (SGB XII) stipulates that the euro amounts determined for the previous year shall continue to apply until a subsequent update results in higher euro amounts, if the update according to Section 28a paragraphs 2 to 4 of the SGB XII results in euro amounts for the standard benefit levels that are lower than the euro amounts applicable in the previous year.
Paragraph 5 of Section 28a of the German Social Code, Book XII (SGB XII) was incorporated into the SGB XII by the Twelfth Act Amending the Second Book of the Social Code and Other Acts – Introduction of a Citizen's Allowance (Citizen's Allowance Act) of December 16, 2022 (Federal Law Gazette I, No. 51, 2328). The explanatory memorandum to the Federal Government's draft bill (Bundestag printed matter 20/3873, p. 110) states the following regarding Section 28a Paragraph 5 of the German Social Code, Book XII (SGB XII):
"In exceptional cases, the annual adjustment of the standard benefit rates may, due to corresponding changes in the mixed index and the current rates of change in the price index relevant to standard benefit rates in the second quarter, result in the standard benefit rates for the coming calendar year being lower than in the current calendar year. Paragraph 5 prevents this. The applicable amounts continue to be paid until an adjustment results in a higher amount. Comparable provisions have existed in the past in laws determining standard benefit rates when the amount of a standard benefit rate was lower than the applicable amount after recalculation. The difference is reduced by the subsequent adjustment(s)."
Section 3a paragraph 4 sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) was not amended; the provision remains in force in the version of the Act of 09.12.2020 (Federal Law Gazette I, No. 61, 2855). The legislator had already not taken the effects on the regulatory concept of Section 3a Paragraph 1 No. 2 Letter b, Paragraph 2 No. 2 Letter b of the Asylum Seekers' Benefits Act (AsylbLG) and Section 2 Paragraph 1 Sentence 4 No. 1 of the AsylbLG (cf. Federal Social Court, referral decision of September 26, 2024 – B 8 AY 1/22 R –, para. 35, juris; Social Court Halle (Saale), decision of February 28, 2024 – S 17 AY 1/24 ER –, para. 38, juris) as an opportunity to amend Section 3a of the AsylbLG.
Pursuant to Section 40 Sentence 1 No. 1 of the German Social Code, Book XII (SGB XII), the Federal Ministry of Labour and Social Affairs is authorized, in agreement with the Federal Ministry of Finance, to determine by statutory instrument with the consent of the Bundesrat (Federal Council), among other things, the relevant percentages for updating the standard benefit levels pursuant to Section 28a SGB XII and for updating the partial amount pursuant to Section 34 Paragraph 3a Sentence 1 SGB XII, and pursuant to No. 2, to supplement the annexes to Sections 28 and 34 SGB XII with the standard benefit levels resulting from the update pursuant to No. 1 as of January 1 of each year, as well as with the partial amounts resulting from the update pursuant to Section 34 Paragraph 3a Sentences 1 and 2 SGB XII.
In Section 1 Paragraph 2 Sentence 2 of the RBSFV 2025 (Regulation on Standard Benefit Rates for Asylum Seekers), which is based on Section 40 Sentence 1 No. 1 of the German Social Code, Book XII (SGB XII), the legislator stipulates that the euro amounts for the standard benefit rates resulting from the update as of January 1, 2025, are lower than the euro amounts determined for 2024. Therefore, the euro amounts for 2024 will continue to apply from January 1, 2025 (Section 1 Paragraph 2 Sentence 3 RBSFV 2025). Due to the reference in Section 3a Paragraph 4 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG), this also applies to the monetary amounts according to Section 3a Paragraphs 1 and 2 of the AsylbLG.
The regulatory order is necessary to avert significant disadvantages for the applicants for the period from March 26, 2025, to September 25, 2025. This necessity arises from the fact that the respondent granted basic benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) at an insufficient level. The cash benefits contained therein, intended to cover necessary personal needs (Sections 3(1), sentence 2, and 3a(1), no. 1, AsylbLG), are meant to guarantee a dignified minimum standard of living based on the socio-cultural minimum standard of living (see Lower Saxony-Bremen State Social Court, decision of January 26, 2021 – L 8 AY 21/19 –, juris, para. 95). In determining these benefits, the legislature has not sufficiently demonstrated that the length of stay has a concrete impact on subsistence needs and to what extent this could justify the legally established amount of cash benefits (see Lower Saxony-Bremen State Social Court, loc. cit.). This applies all the more since the extension of the waiting period in Section 2 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) to 36 months by the Act to Improve Returns (Returns Improvement Act) of February 21, 2024 (Federal Law Gazette I, No. 54, pp. 1-14). Therefore, even falling below the currently applicable cash benefit amounts generally constitutes sufficient evidence of significant disadvantages. Higher requirements for substantiating the grounds for the order are not applicable in this case. In particular, it cannot be assumed that the amount of benefits falls below a de minimis threshold. In the present dispute concerning the correct calculation of monthly basic benefits, the monthly amount in dispute, €19.00, does not fall below a legally de minimis threshold that is difficult to define. Furthermore, less stringent requirements apply to the existence of grounds for an injunction if, upon examination of the facts and the law – as in the present case – success on the merits is highly probable (cf. Marburg Social Court, loc. cit., para. 47).
A ground for an injunction regularly exists only with regard to services for the present or the near future. This is still the case here, given a period of 6 months.
The decision on costs is based on § 193 SGG.
This decision is not subject to appeal pursuant to Section 172 Paragraph 3 No. 1 of the Social Court Act (SGG).
