DECISION
in the appeal proceedings
xxx,
Legal representative:
Attorney Sven Adam,
Lange-Geismar-Straße 55,
37073 Göttingen
– Applicant and complainant –
against
Altmarkkreis Salzwedel, represented by the District Administrator,
Karl-Marx-Straße 32,
29410 Salzwedel
– Respondent and Appellant –
Other parties involved in the proceedings:
State of Saxony-Anhalt – State Treasury –,
represented by the District Auditor at the State Social Court of Saxony-Anhalt,
c/o Social Court Magdeburg,
Breiter Weg 203-206,
39104 Magdeburg
– Involved –
The 8th Senate of the State Social Court of Saxony-Anhalt in Halle decided on May 6, 2025, through the President of the State Social Court xxx, the Judge at the State Social Court xxx and the Judge at the State Social Court xxx:
Upon the applicant's appeal, the decision of the Magdeburg Social Court of 6 February 2025 is overturned.
The respondent is ordered by way of an interim injunction to grant the applicant full basic benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act from December 20, 2024 until a decision is reached in the main proceedings, but no later than June 20, 2025.
The respondent is obligated to reimburse the applicant for the necessary extrajudicial costs for both instances of the proceedings.
The applicant is granted legal aid for the application and appeal proceedings, with the appointment of attorney Sven Adam, Lange-Geismar-Straße 55, 37073 Göttingen. No monthly installments from income or payments from assets are required.
REASONS
I.
In the underlying preliminary injunction proceedings, the applicant is challenging a restriction of benefits under Section 1a of the Asylum Seekers' Benefits Act (AsylbLG). He is also challenging a decision by the Magdeburg Social Court, which rejected his application for legal aid to cover the costs of the initial proceedings.
The applicant was born on [date redacted] and is a Syrian citizen of Kurdish ethnicity. According to his own statements, he lived with his parents in a village in the Al-Hasakah province in a house that has since been destroyed. On June 16, 2022, his father, under the surname [surname redacted], was granted subsidiary protection in Bulgaria following an asylum application. This protection also included the applicant, who was a minor at the time. On September 6, 2022, the applicant and his family entered the Federal Republic of Germany.
He was registered in Germany on September 8, 2022, and on November 14, 2022, assigned to the respondent – the Altmarkkreis Salzwedel district – and housed in communal accommodation. The applicant received a temporary residence permit. By decision dated November 30, 2022, he received ongoing benefits pursuant to Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) "from November 14, 2022, until further notice.".
His application for asylum and international protection (refugee status and subsidiary protection) was rejected by the Federal Office for Migration and Refugees (BAMF) in a decision dated August 4, 2023. No grounds for prohibition of deportation exist under Section 60, paragraphs 5 and 7, sentence 1 of the Residence Act (AufenthG). The applicant was ordered to leave the Federal Republic of Germany within one week. If he failed to comply with this deadline, he would be deported to Bulgaria. He may not be deported to Syria.
The application to suspend the deportation order issued on August 4, 2023, was rejected by the Magdeburg Administrative Court on September 4, 2023, on the grounds that the asylum application was inadmissible pursuant to Section 29 Paragraph 1 Number 2 of the Asylum Act (AsylG). The Federal Office for Migration and Refugees' (BAMF) decision to declare the application inadmissible was based on Section 29 Paragraph 1 Number 2 of the Asylum Act, as the applicant had already been granted international protection by another EU member state – in this case, Bulgaria. Therefore, the existence of systemic deficiencies in the asylum procedure and the reception conditions for asylum seekers in Bulgaria was irrelevant to the decision, since the provisions of the Dublin III Regulation, in particular Article 3 Paragraph 2 of the Dublin III Regulation, no longer applied to the applicant. Consequently, the Federal Republic of Germany could not assume responsibility for the case. In the present case, there is no justification for refraining from applying Section 29 Paragraph 1 Number 2 of the Asylum Act, given the living and reception conditions for those granted international protection by Bulgaria, because the living conditions awaiting the applicant as a holder of protection status would expose him to a serious risk of inhuman or degrading treatment within the meaning of Article 4 of the EU Charter of Fundamental Rights. Due to the fundamentally important EU principle of mutual trust, it must be assumed that every Member State respects Union law and the fundamental rights implemented under European law and recognized within the EU. Consequently, there is a presumption that the treatment of third-country nationals in each individual Member State is in accordance with the requirements of the EU Charter of Fundamental Rights, the Geneva Refugee Convention, and the European Convention on Human Rights (ECHR). A violation of these standards exists only if it can be assumed with a considerable degree of probability that the recognized beneficiaries of protection would be exposed to extreme material hardship in the member state due to the foreseeable living conditions there. Based on an evaluation of the current reports and opinions, it cannot be assumed that these rights are violated in Bulgaria for holders of protected status who – like the applicant – do not belong to a vulnerable group. The presumption under EU law has therefore not been rebutted. This decision was final. The applicant received a temporary suspension of deportation pursuant to Section 60a Paragraph 2 Sentence 1 of the German Residence Act, which has been extended to date.
The respondent then heard the applicant regarding the intention to reduce his benefits pursuant to Section 1a of the Asylum Seekers' Benefits Act (AsylbLG). During a hearing on September 19, 2023, the applicant stated that he accepted the reduction and would not leave the country. He had nothing further to add. Subsequently, by decision dated September 22, 2023, the respondent set the applicant's benefits at reduced rates pursuant to Section 1a Paragraph 4 of the AsylbLG, effective from October 1, 2023, to March 31, 2024. The applicant filed an objection to this decision on October 17, 2023. On October 16, 2023, the applicant moved into an apartment in Salzwedel together with other family members. Accordingly, by decision dated November 16, 2023, the benefits were adjusted to reflect the new circumstances. By decision on objection dated December 21, 2023, the decision dated September 22, 2023 was revoked, in particular because the benefit decision regarding benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) dated November 30, 2022, was not withdrawn pursuant to Section 45 of the Social Code, Book Ten (SGB X), but was revoked pursuant to Section 48 of the Social Code, Book Ten (SGB X).
By decision dated February 6, 2024, the decision of November 30, 2022, was revoked pursuant to Section 45 of the German Social Code, Book X (SGB X), effective August 2, 2023, and alternatively, rescinded pursuant to Section 48 of the SGB X. The applicant was granted benefits pursuant to Section 1a, Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) for the period from October 1, 2023, to March 31, 2024. The objection filed against this decision on February 15, 2024, was rejected by a decision on the objection dated May 13, 2024. According to the information in the contested decision, the applicant has filed a lawsuit against this decision, which is still pending.
In the meantime, the respondent granted the applicant only reduced benefits pursuant to Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) for the period from April 1 to September 30, 2024, by decision dated March 22, 2024. The applicant's objection filed against this decision on April 5, 2024, was rejected by the respondent by decision dated June 3, 2024. The preliminary injunction proceedings in this matter were unsuccessful. The action brought against this decision, as amended by the decision on the objection, is still pending. (according to the Social Court in the contested ruling)
By decision dated September 24, 2024, the benefits from October 1, 2024 to March 31, 2025 were also reduced, as before, in accordance with Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG). This decision was addressed to the applicant's authorized representative and was mailed on September 24, 2024.
By decision dated December 16, 2024, the respondent recalculated the benefits and set them at €175 per month for the months of January to March 2025. In support of this decision, he referred to Section 48 of the German Social Code, Book X (SGB X), and stated that the benefit rate had been changed.
On December 20, 2024, the applicant, who was represented by legal counsel, filed an objection against the decision of December 16, 2024, and simultaneously stated that he was unaware of a decision dated September 24, 2024. As a precaution, an objection was also being filed against this decision.
On December 20, 2024, the applicant also filed an application with the Magdeburg Social Court for the reinstatement of the suspensive effect of his objection of December 20, 2024, against the decision of September 24, 2024, as amended by the decision of December 16, 2024, and simultaneously applied for legal aid. In support of his application, he referred to constitutional concerns regarding Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) (in particular, paragraph 4). In this respect, he relied on the decision of the Federal Constitutional Court (BVerfG) of May 12, 2021 (1 BvR 2682/17), the decision of the Schleswig-Holstein Higher Social Court (LSG) of June 15, 2020 (L 9 AY 78/20 B ER), and the decision of the Hessian Higher Social Court (LSG) of March 31, 2020 (L 4 AY 4/20 B ER). This regulation also violates EU law, as can be seen from the decision of the Federal Social Court (BSG) of July 25, 2024 (B 8 AY 6/23 R). Furthermore, after reviewing the files, he expressly emphasized that the decision of September 24, 2024, had not been communicated to him.
By decision of February 6, 2025, the Magdeburg Social Court rejected the applications for preliminary legal protection and legal aid, stating as grounds that the only admissible application was a preliminary injunction pursuant to Section 86b Paragraph 2 of the Social Courts Act (SGG). However, the requirements of this provision were not met. The applicant fell under the regulation of Section 1a Paragraph 4 Sentence 2 No. 1 in conjunction with Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG). There were no concerns regarding the constitutionality of this provision. The applicant had not presented any exceptional aspects of his individual case. This decision was served on the applicant on February 6, 2025.
The applicant filed appeals on February 7, 2025, against both the rejection of his application for preliminary legal protection (L 8 AY 3/25 B ER) and the rejection of his application for legal aid (L 8 AY 4/25 B), pointing out that the decision of February 6, 2024, had not become legally binding. He also argued that his case did not fall within the personal scope of application of Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG).
The applicant requests that
the decision of the Social Court of Magdeburg of 6 February 2025 be set aside and that the suspensive effect of his objection of 20 December 2024 against the decision of the respondent of 24 September 2024 as amended by the decision of 16 December 2024 be ordered and that he be granted legal aid for the appeal proceedings with the appointment of his authorized representative.
The respondent requests that
the appeal be dismissed.
He considers the contested decision to be correct.
In a judgment dated February 28, 2025, the Magdeburg Administrative Court dismissed the applicant's action against the decision of the Federal Office for Migration and Refugees (BAMF) dated May 30, 2023. The court held that the contested inadmissibility decision was lawful and based on Section 29 Paragraph 1 No. 2 of the Asylum Act. The court found that there was no serious risk for the applicant of experiencing inhuman or degrading treatment within the meaning of Article 4 of the EU Charter of Fundamental Rights/Article 3 of the European Convention on Human Rights upon return to Bulgaria. In its assessment, the court concurred, in particular, with the reasoning of the Higher Administrative Court (OVG) for the State of North Rhine-Westphalia in its decision of August 22, 2023 (11 A 3374/20.A). The court concluded that the applicant would, with a considerable degree of probability, receive support for integration in Bulgaria and would be able to find employment and accommodation.
An attempt to deport her on March 5, 2025, was unsuccessful.
The Senate consulted the immigration file and the file of the Federal Office for Migration and Refugees (BAMF). For further details, reference is made to these files, the court file, and the administrative files of the respondent, which formed the basis of the decision.
II.
The applicant's appeals are successful.
1.
The applicant's appeal (L 8 AY 3/25 B ER), filed in due form and time with regard to the rejection of preliminary legal protection pursuant to Section 173 of the Social Court Act (SGG), is admissible pursuant to Section 172, paragraphs 1 and 3, no. 1 of the SGG. The value of the subject matter of the appeal exceeds €750, as the application seeks the difference for a period of six months between the benefits granted at least at a reduced rate (€183/month) by the decision of September 24, 2024, compared to benefits pursuant to
Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) (€368/month; see the announcement concerning the amount of the benefit rates pursuant to Section 3a, paragraph 4 of the Asylum Seekers' Benefits Act for the period from January 1, 2024, dated October 19, 2023, no. 1c) aa), 2c) aa, Federal Law Gazette 2023, Part I, no. 288).
The Social Court correctly interpreted the application as one for the issuance of a preliminary injunction pursuant to Section 86b Paragraph 2 of the Social Court Act (SGG). According to Section 86b Paragraph 1 Sentence 1 Number 2 of the SGG, the court of first instance may, upon application, order the suspensive effect in whole or in part in cases where, as here pursuant to Section 11 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG), an objection and an appeal do not have suspensive effect. However, according to Section 86b Paragraph 2 Sentence 2 of the SGG, preliminary injunctions to regulate a provisional state of affairs with regard to a disputed legal relationship are permissible if such regulation appears necessary to avert substantial disadvantages (Section 86b Paragraph 2 Sentence 2 of the SGG).
Since a separate action for annulment would be inadmissible in the main proceedings, ordering the suspension of the effect of the objection is not possible. If the decisions of September 24, 2024, and December 16, 2024, were overturned, the applicant would not receive the benefits originally granted from November 30, 2022, until further notice, pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG). This is because the latter decision was already revoked by the decision of February 6, 2024, as amended by the objection decision of May 13, 2024, as also clarified by the reference to Sections 45 and 48 of the German Social Code, Book X (SGB X). There is no basis for a time limit (which might be necessary under Section 14 of the AsylbLG). The action brought against this decision, which is still pending, does not have suspensive effect (Section 11, Paragraph 4 of the AsylbLG). No other decision granting the applicant higher benefits exists. For this reason, the possible lack of notification of the decision of September 24, 2024, is also irrelevant.
Although the applicant requested the suspension of the enforcement of the decision, pursuant to Section 123 of the Social Court Act (SGG), the court decides on the claims raised by the applicant without being bound by the wording of the applications. The Federal Social Court (BSG) has consistently emphasized, with regard to social benefits, that the interpretation of applications is governed by what benefits would be possible if any reasonable applicant, upon receiving appropriate advice, had adjusted their application accordingly, and provided there are no grounds to assume otherwise. In cases of doubt, it is to be assumed that the plaintiff seeks to be awarded everything to which they are entitled based on the facts of the case (BSG, Judgment of February 23, 2005 – B 6 KA 77/03 R – juris para. 16; BSG, Judgment of June 24, 2021 – B 7 AY 3/20 R – juris para. 11 with further references). Therefore, his request should be understood as meaning that he wishes to obtain full benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) by way of preliminary legal protection, and that he seeks legal aid for the proceedings in both instances.
Pursuant to Section 86b Paragraph 2 Sentence 1 of the Social Court Procedure Act (SGG), the court may, upon application, issue a preliminary injunction concerning the subject matter of the dispute if there is a risk that a change in the existing state of affairs could frustrate or significantly impede the applicant's exercise of a right. Preliminary injunctions are also permissible to regulate a provisional state of affairs with regard to a disputed legal relationship if such regulation appears necessary to avert substantial disadvantages. The granting of preliminary legal protection requires a claim to the injunction, i.e., a substantive legal claim to the performance to which the respondent is to be obligated, as well as grounds for the injunction, namely the urgency of the legal protection. The facts that are intended to establish the grounds for the injunction and the claim to the injunction must be presented and substantiated (Section 86b Paragraph 2 Sentence 4 in conjunction with Section 920 Paragraph 2 of the Code of Civil Procedure [ZPO]).
The purpose of preliminary legal protection is to safeguard the capacity to decide and the procedural situation in order to enable the final realization of rights in the main proceedings. Its sole aim, due to the time dimension of legal recognition and enforcement in the main proceedings, is to protect a future or present procedural legal position from developments that override its importance, to prevent irreparable consequences, and to prevent the creation of irreversible facts that cannot be reversed even if the contested administrative decision is subsequently found to be unlawful. In contrast, preliminary legal protection proceedings do not serve to realize asserted substantive legal positions in advance, by circumventing the court with jurisdiction over the main proceedings and by shortening those proceedings. When interpreting and applying the provisions governing preliminary legal protection, the courts are obligated to consider the particular importance of the fundamental rights affected and the requirements of effective legal protection. The guarantee of effective legal protection under Article 19 Paragraph 4 of the Basic Law generally requires the possibility of preliminary injunction proceedings if, without them, the affected party faces a significant infringement of their rights that extends beyond mere peripheral issues and cannot be remedied by a decision on the merits (see Federal Constitutional Court, Decision of October 25, 1999 – 2 BvR 745/88 – BVerfGE 79, 69, 74; Federal Constitutional Court, Decision of May 16, 1995 – 1 BvR 1087/91 – BVerfGE 93, 1, 14). This applies to both actions for annulment and actions for enforcement. In these cases, court decisions may generally be based on a summary examination of the prospects of success on the merits. If a complete clarification of the factual and legal situation is not possible for the court in preliminary injunction proceedings, a balancing of interests must be carried out. In this case, too, the applicant's fundamental rights must be fully considered in the balancing of interests. The courts must protect and promote the fundamental rights of the individual. This applies particularly when it comes to safeguarding human dignity. The courts must prevent any violation of this fundamental right, even if it is only possible or temporary (Federal Constitutional Court, decision of February 25, 2009 – 1 BvR 120/09 – NZS 2009, 674, 675).
In this respect, the applicant can invoke both a claim to an injunction (see b.) and a ground for an injunction (see a.).
a. The matter is urgent, as the applicant has credibly demonstrated that he has neither income nor assets. The benefits reduced pursuant to Section 1a Paragraph 4 in conjunction with Section 1a Paragraph 2 of the Asylum Seekers' Benefits Act (AsylbLG) generally only cover a portion of the necessary needs within the meaning of Section 3 Paragraph 1 Sentence 1 of the AsylbLG. His constitutional right to a dignified minimum standard of living is therefore jeopardized (see Federal Constitutional Court, Judgment of November 5, 2019 – 1 BvL 7/16 – juris para. 120).
b. There is a right to an injunction.
The applicant belongs to the group of persons entitled to benefits under Section 1 Paragraph 1 Number 4 of the Asylum Seekers' Benefits Act (AsylbLG). He is a foreigner, is actually residing in Germany, and has a temporary suspension of deportation (Duldung) pursuant to Section 60a Paragraph 2 Sentence 1 of the Residence Act (AufenthG). The latter decision under immigration law has the effect of constituting a factual finding regarding his eligibility for benefits under Section 1 of the Asylum Seekers' Benefits Act (BSG, Judgment of July 25, 2024 – B 8 AY 7/23 R – juris Rn. 18).
The respondent is responsible for granting benefits. Section 10, sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) stipulates that the state governments or the highest state authorities commissioned by them designate the authorities and cost bearers responsible for implementing this law; they may specify further details regarding the procedure, insofar as this is not regulated by state law. Based on further provisions pursuant to Section 10, sentence 1 of the AsylbLG, the responsible authorities and cost bearers may transfer tasks and cost bearer responsibilities to other authorities (Section 10, sentence 2 of the AsylbLG). This has occurred in the state of Saxony-Anhalt. According to Section 1, paragraph 1, number 7 of the General Ordinance on Responsibilities for Municipalities and Districts for the Implementation of Federal Law (dated May 7, 1994, last amended by the Ordinance of May 12, 2021, Official Gazette of Saxony-Anhalt, pages 284, 285), the respondent, as a district, is responsible for implementing the AsylbLG.
The conditions for granting restricted benefits as set out in Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) are not met, as is correctly pointed out in the grounds for appeal.
According to Section 1a Paragraph 4 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG), persons entitled to benefits under Section 1 Paragraph 1 Number 1, 1a or 5 of the AsylbLG, for whom, in deviation from the standard responsibility under Regulation (EU) No. 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in a Member State by a third-country national or stateless person (OJ L 180, 29.6.2013, p. 31), another Member State or a third country participating in the distribution mechanism and applying Regulation (EU) No. 604/2013 is responsible following a distribution by the European Union, shall only receive benefits in accordance with Paragraph 1.
The applicant does not fall under this provision, as the assessment of his need for protection has already been completed. As sentence 2 of this provision shows, the law differentiates here. According to the draft bill of May 31, 2016, the regulation in Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG) serves to supplement the regulation in Section 1a Paragraph 4 Sentence 1 of the AsylbLG (Bundestag printed matter 18/8615, page 35), according to which a restriction of benefits is provided for in certain cases in which another member state is responsible for conducting the asylum procedure. Already during the legislative process for Section 1a Paragraph 4 of the AsylbLG in the version applicable from October 24, 2015, it had been demanded that a restriction of benefits also ("all the more so") apply to persons whose asylum procedure in another member state has already been successfully concluded by granting them protection status (Bundesrat printed matter 446/1/15, page 7).
However, Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (as amended on October 25, 2024) is also not applicable to the present case. According to this provision, Sentence 1 applies accordingly to those entitled to benefits under Section 1 Paragraph 1 No. 1 or No. 1a of the Asylum Seekers' Benefits Act (who have already been granted international protection by another Member State of the European Union, provided that the international protection continues).
The applicant does not have a residence permit under the Asylum Act (see Section 1 Paragraph 1 No. 1 of the Asylum Seekers' Benefits Act). The requirements of Section 1 Paragraph 1 No. 1a of the Asylum Seekers' Benefits Act are also not met, as the applicant fulfills the requirements of Section 1 Paragraph 1 No. 4 of the Asylum Seekers' Benefits Act (the requirements listed in numbers 1, 2 to 5, and 7 are not met). He has a temporary suspension of deportation pursuant to Section 60a Paragraph 2 Sentence 1 of the Residence Act (Section 1 Paragraph 1 No. 4 of the Asylum Seekers' Benefits Act). Furthermore, he is subject to an enforceable obligation to leave the country (Section 1 Paragraph 1 No. 5 of the Asylum Seekers' Benefits Act).
Finally, Section 1a Paragraph 4 Sentence 3 of the Asylum Seekers' Benefits Act (AsylbLG) is also not applicable. This is because it extends the scope of "Sentence 2 Number 2" (to those who have been granted a right of residence for other reasons) to "beneficiaries under Section 1 Paragraph 1 Number 5". However, since the applicant enjoys international protection in Bulgaria, he falls under Section 1a Paragraph 4 Sentence 2 Number 1 of the AsylbLG.
The omission of this group of refugees is not a legislative oversight. The applicant's case is likely covered by Section 1 Paragraph 4 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG). However, the respondent did not base its decision on this provision. Adding further grounds or changing the legal basis is only permissible if the administrative act is not thereby altered in its scope or substance and the affected party is consequently impaired in their legal defense (Federal Social Court, Judgment of June 21, 2011 – B 4 AS 21/10 R – juris para. 34). A change in the "substance" of an administrative act is to be determined in accordance with the two-part concept of the subject matter of the dispute and is therefore to be assumed if the regulation is based on a different set of facts or if an intervention in the operative part becomes necessary, i.e., if the set of facts and/or the operative provision do not remain the same. In the case of reinterpretation, the change takes place at the regulatory level, so that the administrative act subsequently pronounces a different legal consequence (Littmann, in: Hauck/Noftz, SGB, 10/09, § 43 SGB X, Rn. 6).
However, for a restriction of benefits under Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG), other conditions must be met, which the respondent – consistently – has not examined. Thus, it remains unclear whether international protection in Bulgaria continues (Section 1 Paragraph 4 Sentence 1 No. 1 AsylbLG) or whether departure to Bulgaria is legally and factually possible according to the determination of the Federal Office for Migration and Refugees (Section 1 Paragraph 4 Sentence 1 No. 2 AsylbLG).
This also applies to a restriction of benefits pursuant to Section 1a Paragraph 2 of the Asylum Seekers' Benefits Act (AsylbLG). Whether the applicant's entry into the country for the purpose of obtaining benefits constituted a decisive motive and a further requirement of Section 1a Paragraph 2 AsylbLG, for which the benefit provider bears the burden of proof and for which it must conduct a complete investigation of the facts for the necessary individual case review (Leopold in: Grube/Wahrendorf/Flint, SGB XII, 8th edition 2024, Section 1a AsylbLG, marginal notes 52, 54), has also not been examined here. Given the applicant's minority at the time, it could also be plausible that he wanted to remain with his parents and siblings.
Furthermore, Section 43 Paragraph 1 of the German Social Code, Book X (SGB X) permits reinterpretation only if the reinterpreted administrative act pursues the same objective as the erroneous administrative act. This is not the case here. The legal consequences are considerably more far-reaching, as the application of Section 1 Paragraph 4 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) generally results in the loss of all benefits under the AsylbLG.
Finally, there has been no hearing on this matter and its legal consequences.
c) Although it is not relevant to the present case, there are compelling reasons to assume that the applicant is entitled to full benefits. The decision of February 6, 2024, as amended by the decision on the objection of May 13, 2024, which is the subject of legal proceedings before the Social Court, is enforceable, since the objection and the legal action do not have suspensive effect pursuant to Section 11 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG). To date, no preliminary legal protection proceedings have been initiated to order the suspensive effect of an appeal against this decision. Therefore, the Senate must base its decision on the legal consequences stated in the decision of February 6, 2024 (i.e., the withdrawal or revocation of the decision of November 30, 2022). However, the Senate also points out, with regard to the pending legal proceedings, that this decision of the respondent, which is not yet legally binding, could be unlawful.
Pursuant to Section 9 Paragraph 4 Sentence 1 Number 1 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Section 45 Paragraph 1 and Paragraph 2 of the German Social Code, Book X (SGB X), an unlawful, favorable administrative act may not be revoked if the beneficiary has relied on the validity of the administrative act and their reliance is worthy of protection when weighed against the public interest in revocation. The decision of November 30, 2022, which granted the requested benefits under Sections 3 and 3a of the AsylbLG on a permanent basis, was a favorable, permanent administrative act which, according to the respondent's submissions, was unlawful.
Reliance on such a decision is generally worthy of protection if the beneficiary has consumed the benefits received or made a disposition of assets that he can no longer reverse, or only with unreasonable disadvantages. He cannot invoke reliance if, among other things, he knew of the illegality of the administrative act or failed to do so due to gross negligence.
To the extent that the respondent bases the revocation of the decision of November 30, 2022, in his decision of February 6, 2024, on the fact that the applicant was aware of its illegality, this is unconvincing. The applicant was likely neither aware of the illegality of the benefit award, nor should it have been obvious to him. As the respondent himself states in the decision of February 6, 2024, the parents of the then-minor applicant had already pointed out the asylum proceedings in Bulgaria and the subsequent granting of protection during the hearing on the admissibility of the asylum application on November 7, 2022. The application form for the benefit award, which is on file, does not even inquire about such circumstances. Furthermore, as far as can be ascertained, no other specific indication of such a restriction of the benefit entitlement was given. In this respect, there is currently no indication why the applicant, given the accurate information provided, could not assume that the benefit award was lawful. Even slight negligence in failing to recognize the illegality (for which there is also no indication) is not apparent so far.
The Asylum Seekers' Benefits Act is a complex regulatory system with numerous cross-references and exceptions. The distinction between basic benefits, bridging benefits, and reduced benefits, their dependence on residence permits, and their interplay with immigration law regulations are hardly comprehensible for laypersons. For asylum seekers—like the applicant—without in-depth knowledge of German social law and without access to qualified advice, it would likely be impossible to recognize the illegality of the benefits granted to them. Contrary to the statements in the decision of February 6, 2024, subsequent knowledge of the illegality is irrelevant. There is also no indication of any incorrect information provided by the applicant. At least since a case excluding the protection of legitimate expectations under Section 45 Paragraph 2 Sentence 3 of the German Social Code, Book X (SGB X), is therefore unlikely to exist, contrary to the assumptions in the decision of February 6, 2024, the revocation of the benefit decision is a discretionary decision. However, the initial decision incorrectly assumes that no protection of legitimate expectations exists. The appeal decision merely states: "The legal requirements for a revocation pursuant to Section 45 of the German Social Code, Book X (SGB X) were examined by the Altmarkkreis Salzwedel district." Whether these requirements were met is not explained, and in particular, no discretion is exercised. A further revocation is likely not possible due to the expiration of the two-year period stipulated in Section 45, Paragraph 3, Sentence 2 of the SGB X.
A revocation under Section 48 of the German Social Code, Book X (SGB X) is likely to fail because, even according to the respondent's own statements, nothing has changed since the decision was issued. While it is true that the applicant's immigration status has changed (from temporary residence permit to tolerated stay under Section 60a Paragraph 2 Sentence 1 of the German Residence Act), this does not explain why this should result in the desired reduction of benefits (see the explanations in section b).
However, the examination of all these circumstances is the responsibility of the social court in the pending legal proceedings.
The decision on costs for the ER appeal proceedings is based on a corresponding application of Section 193 Paragraph 1 of the Social Court Act (SGG).
2.
The appeal regarding the denial of legal aid (L 8 AY 4/25 B) is also admissible pursuant to Section 172 Paragraph 1 of the Social Court Act (SGG). The Social Court denied the granting of legal aid solely on the grounds of lack of prospects of success, so there is no case for the exclusion of the appeal pursuant to Section 172 Paragraph 3 No. 2 of the Social Court Act (SGG). The appeal is admissible pursuant to Section 172 Paragraph 3 No. 2 of the Social Court Act (SGG)
The value of the appeal required for admissibility under Section 172 Paragraph 3 No. 2b of the Social Court Act (SGG) in conjunction with Section 144 Paragraph 1 Sentence 1 No. 1 of the Social Court Act (SGG) is exceeded for the reasons stated above.
The complaint is also justified.
Pursuant to Section 73a Paragraph 1 Sentence 1 of the Social Court Act (SGG) in conjunction with Section 114 Paragraph 1 Sentence 1 of the Code of Civil Procedure (ZPO), legal aid is to be granted upon application if the applicant, based on their personal and financial circumstances, cannot afford the costs of litigation, can only afford them in part or in installments, provided that the intended legal action or defense offers sufficient prospects of success and does not appear frivolous. In light of the outcome of the proceedings, these requirements are met. The applicant is also indigent.
Costs for the legal aid appeal procedure are not to be reimbursed pursuant to Section 73a Paragraph 1 Sentence 1 of the Social Courts Act (SGG) in conjunction with Section 127 Paragraph 4 of the Code of Civil Procedure (ZPO).
3.
The requirements for granting legal aid for the appeal proceedings within the meaning of Section 73a Paragraph 1 Sentence 1 of the Social Courts Act (SGG) in conjunction with Section 114 Paragraph 1 Sentence 1 of the Code of Civil Procedure (ZPO) are met.
The decision is not subject to appeal (§ 177 SGG).
