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,
– State Welfare Office of Hesse –, Department VI,
Landgraf-Philipp-Platz 1-7, 35390 Gießen,
Respondent
The 6th Chamber of the Social Court of Kassel decided on May 7, 2025, through the presiding judge, Judge xxx of the Social Court:
The suspensive effect of the applicant's objection of 07.04.2025 against the respondent's decision of 19.03.2025 is ordered.
The respondent shall bear the applicant's necessary extrajudicial costs.
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 withdrawal of benefits under the Asylum Seekers' Benefits Act (AsylbLG).
The applicant was born on [date redacted] in Kabul, Afghanistan, and is an Afghan national.
In October 2023, he first entered the Federal Republic of Germany (FRG) and was registered at the initial reception center of the state of Hesse in Gießen. There, he submitted an asylum application to the responsible branch office of the Federal Office for Migration and Refugees (BAMF). He was assigned to the Schwalm-Eder district. After his asylum application was rejected by the BAMF, he was transferred to Croatia in September 2024.
On October 29, 2024, the applicant re-entered the FRG and submitted an asylum application to the responsible branch office of the BAMF on October 31, 2024.
By decision dated November 13, 2024, the applicant was granted benefits pursuant to Section 3 in conjunction with Section 3a of the Asylum Seekers' Benefits Act (AsylbLG) effective October 29, 2024. By amendment notice dated December 9, 2024, the necessary personal needs allowance was adjusted due to the amended standard benefit rates effective January 1, 2025.
The applicant's asylum application was rejected as inadmissible by the Federal Office for Migration and Refugees (BAMF) on January 28, 2025, pursuant to Section 29 Paragraph 1 Number 1 of the Asylum Act (AsylG), as he had already filed an asylum application in Croatia, and deportation to Croatia was ordered. This decision became final on February 13, 2025.
By letter dated March 5, 2025, the applicant was given the opportunity, pursuant to Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG), to present reasons that would preclude the termination 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 12, 2025. The applicant answered "No" to the following questions in the questionnaire of the hearing notice dated March 5, 2025:
– Do you or, if applicable, your children require assistance to overcome particular hardship?
– Is your need temporary?
He explained that his family was in Germany and that he had medical problems. He owed money to the Marburg Public Prosecutor's Office (enforcement of a sentence). The pocket money would help him pay this debt. By a termination notice dated March 19, 2025, the benefits under Section 3 in conjunction with Section 3a of the Asylum Seekers' Benefits Act (AsylbLG) were then terminated, and bridging benefits were granted pursuant to Section 1 Paragraph 4 No. 2 of the AsylbLG for a maximum of two weeks until April 7, 2025. The notice was served on the applicant on March 25, 2025, and a confirmation of receipt was signed.
The applicant filed an objection on April 7, 2025.
On April 7, 2025, the applicant, through his legal representative, filed an application with the Kassel Social Court for an order suspending the effect of the decision.
The applicant argues that the provision in Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (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 welfare principle of Article 20 Paragraph 1 GG.
Section 1 Paragraph 4 AsylbLG also violates EU law.
The only possible legal basis under EU law is Article 20 Paragraph 1 Letter 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 during reception if an applicant has submitted a subsequent application under Article 2 Letter q of Directive 2013/32/EU (Asylum Procedures Directive). Whether a subsequent application can exist if the initial application was lodged in another Member State, or whether a subsequent application must be preceded by an initial application in the same Member State, is disputed (the wording of Article 40(1) of the Asylum Procedures Directive argues against this: “…in the same Member State…”). In case C-8/20, the European Commission stated that Union 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 Union 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 Union legislature, especially 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 under 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. Here, 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, shall be made and reasoned on a case-by-case basis, objectively and impartially. These decisions must be based on the specific circumstances of the individuals concerned, particularly with regard to the persons referred to in Article 21, and must adhere to the principle of proportionality. In accordance with Article 19, Member States shall in all cases guarantee access to medical care and ensure a dignified standard of living for all applicants. Section 1(4), first sentence, 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. Furthermore, the benefits withheld under Section 1 of the 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. According to national constitutional law, there is a direct constitutional right to benefits to guarantee a dignified minimum standard of living. Physical and socio-cultural existence must be uniformly secured. The human dignity on which this right is based belongs to everyone and is not lost even through supposedly "undignified" behavior. Furthermore, concerns under European law already exist due to the referral decision of the Federal Social Court of July 25, 2024, under file number B 8 AY 6/23 R, regarding the comparable provision in Section 1a Paragraph 7 of the Asylum Seekers' Benefits Act (AsylbLG).
The applicant requests that
the suspensive effect of the applicant's objection of 07.04.2025 against the decision of the respondent of 19.03.2025 be ordered.
The respondent requests that
the application be rejected.
There is no violation of EU law.
Article 20(1) of Directive 2013/33/EU governs the possibilities for Member States to restrict or withdraw the material benefits granted in the context of reception in justified exceptional cases. Article 20(1), first sentence, point (c) of Directive 2013/33/EU expressly refers to the case in which an applicant has submitted a subsequent application under Article 2(q) of Directive 2013/32/EU. Article 2(q) of Directive 2013/32/EU defines a "subsequent application" as a further application for international protection submitted after a final decision has been issued on an earlier application. According to the Federal Social Court's (BSG) reasoning in its referral decision, the restriction of entitlement provided for in Section 1 Paragraph 4 Sentence 1 Number 2 of the Asylum Seekers' Benefits Act (AsylbLG) can be justified under European law, provided the requirements of Article 20 Paragraph 1 Sentence 1 c) of Directive 2013/33/EU are met. This is the case here. As the BSG's reasoning demonstrates, the BSG considers the fulfillment of the requirements of Article 20 Paragraph 1 Sentence 1 c) of Directive 2013/33/EU to be problematic only if the earlier asylum procedure was conducted by a Member State other than the one in which the subsequent application was lodged. The BSG's reasoning, however, implies the applicability of Article 20 Paragraph 1 Sentence 1 c) of Directive 2013/33/EU if both applications were lodged in the same Member State. This is precisely the case here. Member States are also obliged to enforce the obligation to leave the country based on Regulation (EU) No. 604/2013. The restriction of benefits pursuant to Section 1(4), sentence 1, no. 2 of the Asylum Seekers' Benefits Act (AsylbLG) is intended to safeguard this obligation to leave the country at the level of benefit entitlement. Regulation (EU) No. 604/2013 is directly applicable European law. Pursuant to Article 29(1), sentence 1 of Regulation (EU) No. 604/2013, Member States are directly obliged to transfer the asylum seeker if their application has been rejected as inadmissible. The applicant, as the benefit provider, must respect this obligation to transfer and is therefore obliged to impose a restriction of benefits – as regulated in Section 1(4), sentence 1, no. 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 Asylum Seekers' Benefits Act (AsylbLG) 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 is exclusively responsible for their asylum procedure. 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.
Furthermore, there is no violation of constitutional law. According to the Federal Constitutional Court, while migration policy considerations—namely, keeping benefits for asylum seekers and refugees low to avoid creating 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 minimum for subsistence. However, these statements refer only to the general calculation of standard benefits. The Federal Constitutional Court's rulings are decisive only for this area. However, the provision 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 a routine provision of benefits under Section 3 of the AsylbLG. The standard rates are therefore not generally kept low to prevent migration, but rather a reaction to a specific situation. Section 1 Paragraph 4 Sentence 1 Number 2 of the AsylbLG concerns the concrete, benefit-related support for an obligation to leave the country based on Regulation (EU) No. 604/2013, which is not constitutionally objectionable. Furthermore, the decision on the constitutionality of a law rests with the Federal Constitutional Court.
Moreover, Section 1 Paragraph 4 Sentence 1 Number 2 of the AsylbLG is valid law and therefore applicable. Any deviation by benefit providers from the statutory provision of Section 1 Paragraph 4 Sentence 1 Number 2 of the Asylum Seekers' Benefits Act (AsylbLG) would violate the principle of legality in administration. Due to the primacy of law, there is a mandatory application requirement and a prohibition against deviation, meaning that benefits can only be granted under the corresponding conditions. The application of Section 1 Paragraph 4 Sentence 1 Number 2 of the AsylbLG is also lawful.
For further details of the facts and the legal arguments, reference is made to the contents of the court file and the administrative records of the respondent. These were the subject of the decision.
II.
The admissible application is well-founded.
The application for an order suspending the effect of the applicant's objection of 07.04.2025 against the respondent's decision of 19.03.2025 is admissible and also permissible in all other respects.
The application is also well-founded.
Therefore, the reasoning of the Darmstadt Social Court in its decision of February 4, 2025 – S 16 AY 2/25 ER – is adopted.
According to Section 86b Paragraph 1 Number 2 of the Social Courts 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 (NJW 2003, 3617 (3618 f.)), the function of preventive measures, which pursue a safeguarding purpose for an interim period, includes, as an exception, the temporary suspension of 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 poses a concrete risk to important public interests. The protective function of procedural law is thus subject to the influence of fundamental rights (Wahrendorf in: beck-online.GROSSKOMMENTAR, edited by Roos/Wahrendorf/Müller, as of February 1, 2025, § 86b SGG, marginal notes 81, 82 with further references). The more serious the threatened violation of fundamental rights and the higher its probability of occurrence, the more intensive the factual and legal considerations must be. The issue should be thoroughly examined during the preliminary injunction proceedings. If a clarification of the factual and legal situation corresponding to the threatened violations of fundamental rights is not possible in the expedited proceedings – for example, because it 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 injunctions is then based on a balancing of interests (Hessian State Social Court, decision of September 15, 2024 – L 4 AY 19/24 B ER –, juris, para. 32).
In the context of the balancing of interests, the application was to be granted. The subject of the dispute is the objection to the revocation of the benefit decision under the Asylum Seekers' Benefits Act (AsylbLG).
The revocation decision is not formally unlawful; the required hearing has taken place.
The benefits under the AsylbLG were revoked by the revocation decision based on the application of Section 1 Paragraph 4 No. 2 Sentence 1 of the AsylbLG. According to this provision, persons entitled to benefits under Paragraph 1 No. 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 No. 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.
The applicant falls within the aforementioned group of persons.
However, it cannot be definitively determined at this time whether the action would be successful on the merits. This is because, in weighing the consequences, the referral order of the Federal Social Court of July 25, 2024 (B 8 AY 6/23 R) 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 restriction of benefits under Section 1 Paragraph 4 No. 2 of the AsylbLG, which is relevant here. Considering the enforcement interest of the authorities versus the applicant's interest, the authority's 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 Croatia must be given priority.
Accordingly, the application should have been granted.
The decision on costs follows the decision on the merits and is based on § 193 SGG.
The following is information on legal remedies.
