DECISION
in the appeal proceedings
1. xxx,
2. xxx,
Legal representative for 1 – 2:
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 –
The 8th Senate of the State Social Court of Saxony-Anhalt in Halle decided on April 28, 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 applicants' appeal, the decision of the Social Court of Magdeburg of March 4, 2025 is set aside and the respondent is ordered by way of preliminary injunction to grant the applicants full basic benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act from February 11, 2025 until a decision is reached in the main proceedings, but no later than August 10, 2025.
The respondent must reimburse the applicants for their necessary extrajudicial costs for both instances of the proceedings.
The applicants are granted legal aid for the application and appeal proceedings without any obligation to pay in installments, with the appointment of lawyer Adam, Göttingen.
REASONS
I.
The parties are in dispute in preliminary legal proceedings regarding higher benefits under the Asylum Seekers' Benefits Act (AsylbLG). Furthermore, the applicants are challenging the denial of legal aid for the proceedings at first instance.
The applicant (1), born on [date redacted], and the applicant (2), born on [date redacted], are married, have six children, and are Syrian nationals of Kurdish ethnicity. Their asylum application in Bulgaria was granted them international protection there on June 16, 2022, in accordance with Section 1 Paragraph 1 Number 2 of the Asylum Act (AsylG).
The applicants entered Germany on September 6, 2022, with four (then minor) children. At the Central Reception Center for Asylum Seekers of the State of Saxony-Anhalt (ZASt) in Halberstadt, they presented personal status and identity documents from the Syrian Arab Republic and applied to the local branch of the Federal Office for Migration and Refugees (BAMF) for asylum in the Federal Republic of Germany. From there, a transfer request was sent to Bulgaria on September 20, 2022, under the so-called "Dublin Procedure." Subsequently, the Bulgarian State Refugee Agency informed them that the applicants and their children had already been granted subsidiary protection there on June 16, 2022, and therefore the transfer request could not be accepted (letter dated October 3, 2022). On October 4, 2022, the Federal Office for Migration and Refugees (BAMF) contacted the Harz district immigration office and informed them that the transfer request had been rejected because the applicants had been granted international protection in Bulgaria. Deportation to this member state would take place outside the Dublin procedure and under the sole responsibility of the immigration office. A new decision would be issued in the national procedure. By order of the Central Reception Facility (ZASt) dated November 14, 2022, the applicants and their children were assigned to the respondent for the purpose of conducting the asylum procedure, pursuant to Section 50, paragraphs 2 and 6 of the Asylum Act, and were issued temporary residence permits.
The Federal Office for Migration and Refugees (BAMF) rejected the asylum application filed in Germany on October 19, 2022, by the applicants and their three children (xxx, xxx, and xxx) as inadmissible following a personal hearing on November 7, 2022, and determined that there were no grounds for prohibiting deportation under Section 60, paragraphs 5 and 7, sentence 1 of the Residence Act (AufenthG). The applicants were ordered to leave the Federal Republic of Germany within one week. If they failed to comply with this deadline, they would be deported to Bulgaria. They may not be deported to Syria.
On July 4, 2022, the applicants filed a lawsuit with the Magdeburg Administrative Court against this decision and simultaneously submitted an application for an order suspending the deportation order pursuant to Section 80 Paragraph 5 of the Code of Administrative Court Procedure. By decision of July 12, 2023, the Administrative Court (2 B 199/23 MD) definitively rejected the application for preliminary legal protection against the deportation order to Bulgaria. After evaluating the current reports and statements, the court concluded that, based on the "strict standards of the European Court of Justice," a violation of Article 4 of the Charter of Fundamental Rights of the European Union (CFR) or Article 3 of the European Convention on Human Rights (ECHR) could not be assumed with a considerable degree of probability. The applicants' family did not belong to a group of persons particularly deserving of protection. There was no evidence to support the applicants' entitlement to protection from deportation.
Subsequently, in his letter to the applicants dated July 14, 2023, the respondent explained that the residence permits would expire on July 27, 2023, when the deportation order became enforceable. Due to legal and factual obstacles to deportation, the applicants received a temporary suspension of deportation pursuant to Section 60a Paragraph 2 Sentence 1 of the Residence Act, which was extended several times, most recently until March 28, 2025.
On March 5, 2025, the attempt to deport the applicants to Bulgaria failed. On the same day, the Magdeburg Administrative Court amended its decision of July 12, 2023, pursuant to Section 80 Paragraph 7 of the Code of Administrative Court Procedure (VwGO), and ordered the suspension of the deportation order in point 3 of the Federal Office for Migration and Refugees' (BAMF) decision of June 22, 2023 (decision of March 5, 2025 – 2 B 104/25 MD). The applicants faced a considerable risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union (GRC) in the form of homelessness and extreme material hardship if they were transferred to Bulgaria. On March 11, 2025, the Magdeburg Administrative Court served the judgment issued on February 28, 2025, on the aforementioned action. The Administrative Court (VG) therefore overturned the decision of the Federal Office for Migration and Refugees (BAMF) of June 22, 2023, with the exception of point 3, sentence 4 (prohibition of the applicants' deportation to Syria). The respondent – the immigration authority – announced by letter dated March 28, 2025, that it would grant the applicants temporary residence permits for the duration of the asylum proceedings to be initiated.
Following the aforementioned allocation by the Central Reception Facility (ZASt), the respondent granted the applicants basic benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) from November 14, 2022 until further notice, by decision dated November 30, 2022.
After the Federal Office for Migration and Refugees (BAMF) rejected the applicants' asylum applications as inadmissible (decision of June 22, 2023), the respondent issued a decision on August 18, 2023. This decision revoked the granting of basic benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) of November 30, 2022, effective August 2, 2023, and granted only limited benefits under Section 1a Paragraph 4 of the AsylbLG, citing the enforceability of the deportation order. The restriction of benefits was limited to six months, until February 17, 2024, with reference to Section 14 Paragraph 1 of the AsylbLG (the year 2023 was apparently mentioned by mistake).
The applicants filed an objection on September 18, 2023. Since they had already been granted international protection by Bulgaria before entering Germany, the respondent could only have considered revoking this decision if it had proven unlawful at the time of its issuance. However, there had been no change in the factual or legal circumstances.
The State Administrative Office of Saxony-Anhalt issued a decision on the objection on November 21, 2023 – which, in substance, is a remedial decision: It overturned the respondent's decision of August 18, 2023. The decision of November 30, 2022, may only be revoked under the conditions of Section 9 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Section 45 of Book Ten of the Social Code (SGB X). The respondent's revocation of the decision pursuant to Section 48 SGB X was unlawful.
On February 1, 2024, the respondent heard the applicants regarding the restriction of benefits pursuant to Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG). By decision dated February 16, 2024, the respondent revoked the decision to grant ongoing benefits pursuant to Section 3 of the AsylbLG, in accordance with Section 45 of the German Social Code, Book X (SGB X), effective August 2, 2024. The applicants were aware of the illegality of the benefit decision of November 30, 2022. Therefore, they could not invoke the principle of legitimate expectation. Taking into account "changed" personal and economic circumstances, the respondent granted only restricted benefits pursuant to Section 1a Paragraph 4 of the AsylbLG for the period from August 2, 2023, to February 1, 2024.
By decision dated February 20, 2024, the respondent granted the applicants benefits for the period from February 2 to August 1, 2024, subject to a restriction of entitlement pursuant to Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG). The applicants' application for higher benefits under the AsylbLG in the preliminary injunction proceedings was unsuccessful (decision of the Social Court of April 11, 2024 – S 25 AY 13/24 ER, decision of the Higher Social Court of Saxony-Anhalt of July 24, 2024 – L 8 AY 7/24 B ER).
The State Administrative Office of Saxony-Anhalt rejected the applicants' objections of February 27, 2024, against the decisions of February 16 and 20, 2024, as unfounded in its decision of June 17, 2024. The requirements of Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG) were met. This provision does not refer to specific misconduct but rather sanctions secondary migration within Europe (referring to the decision of the Higher Social Court of Saxony-Anhalt of August 2, 2018 – L 8 AY 2/18 B ER). Since the applicants had been granted full benefits under Section 3 of the AsylbLG on a permanent basis by decision of November 30, 2022, the revocation of these benefits pursuant to Section 45 of the German Social Code, Book X (SGB X), was necessary in addition to the restriction of their entitlement. The respondent had examined the legal requirements of this provision. The State Administrative Office did not explicitly state whether the result of this examination could have proven to be correct. In contrast, the applicants filed lawsuits with the Social Court of Magdeburg on July 17, 2024 (S 25 AY 37/24 and S 25 AY 38/24), which have not yet been decided.
On July 1, 2024, the respondent heard the applicants regarding the restriction of benefits pursuant to Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG). By decision dated July 18, 2024, he again granted them benefits for the period from August 2, 2024, to February 1, 2025, subject to a restriction of entitlement pursuant to Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG).
The applicants' objection of August 14, 2024, was rejected by the State Administrative Office of Saxony-Anhalt with a decision dated December 20, 2024. The requirements of Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) were met, and the benefit entitlement was to be restricted accordingly from October 1, 2023. The applicants had received international protection in Bulgaria, which was still in effect. The applicants filed a lawsuit against this decision with the Social Court of Magdeburg (S 25 AY 10/25) on February 2, 2025, which is still pending.
By decision of December 16, 2024 (L 8 AY 16/24 B ER), the Higher Social Court of Saxony-Anhalt ordered the suspensive effect of the applicants' objection against the respondent's decision of July 18, 2024, relating to benefits from November 26, 2024, to February 1, 2025, since the applicants, as holders of a tolerated stay permit pursuant to Section 60a of the Residence Act, did not belong to the group of persons covered by Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act.
On December 16, 2024, the respondent heard the applicants regarding the restriction of benefits pursuant to Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG). By decision dated January 30, 2025, he again granted them benefits for the period from February 2 to August 1, 2025, subject to a restriction of entitlement pursuant to Section 1a Paragraph 4 of the AsylbLG.
The applicants filed an objection on February 11, 2025, which the respondent has not yet decided upon.
On February 11, 2025, the applicants again requested preliminary legal protection and legal aid from the Social Court of Magdeburg. They argued that Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) is clearly unconstitutional because it violates the fundamental right to a dignified minimum standard of living (Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1 of the Basic Law [GG]). They further argued that Section 1a Paragraph 4 of the AsylbLG should be interpreted restrictively to the effect that a restriction of benefits is only permissible if the beneficiaries can be held responsible for unlawful conduct (referring to the decision of the Higher Social Court of Schleswig-Holstein of June 15, 2020 – L 9 AY 78/20 B ER). They also asserted that a fixed sanction period of six months, as provided for in Section 14 Paragraph 1 of the AsylbLG, is unconstitutional. Moreover, they contended that Section 1a Paragraph 4 of the AsylbLG also violates EU law. Furthermore, the Higher Social Court (LSG) also held that the applicants did not fall within the scope of Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG). A ground for an injunction arose from the fact that their constitutionally guaranteed minimum subsistence level was currently no longer assured.
The respondent countered that the applicants were considered eligible for benefits under Section 1 Paragraph 1 Number 5 of the Asylum Seekers' Benefits Act (AsylbLG). Accordingly, their benefits would be reduced under Section 1a Paragraph 4 of the AsylbLG. Even if they were eligible for benefits under Section 1 Paragraph 1 Number 4 of the AsylbLG (tolerated stay), a restriction of their entitlement would arise from Section 1a Paragraph 2 of the AsylbLG. The applicants were abusing their rights by claiming benefits.
The Social Court rejected the applicants' motion and the granting of legal aid by decision of March 4, 2025. The application for interim relief was to be interpreted as an application pursuant to Section 86b Paragraph 1 Sentence 1 No. 2 of the Social Courts Act (SGG) and was therefore admissible. However, the prerequisites for ordering the suspension of the decision were not met. Upon preliminary review, the decision of January 30, 2025, was found to be lawful. The chamber had no concerns regarding the constitutionality of the relevant provision in Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG). It is reasonable and readily possible for the applicants to eliminate the benefit restrictions due to the existing possibility of returning to the state where they have already been granted international protection, as was already pointed out to them in the court's decisions of December 21, 2023 (S 31 AY 66/23 ER) and April 11, 2024 (S 25 AY 13/24 ER). There are no blatant abuses in Bulgaria that would justify the conclusion that recognized beneficiaries of protection who do not belong to a vulnerable group would be subjected to degrading or inhumane treatment upon their return there. It must therefore be assumed that even within the framework of a teleological reduction of the provision in Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG), the applicants' conduct is deemed to be in breach of their obligations (reference to the Bavarian State Social Court, judgment of March 9, 2023 – L 8 AY 135/22). The restriction of benefits was also properly limited to six months, since the respondent was entitled to impose a further reduction in benefits in accordance with Section 14 Paragraph 2 of the Asylum Seekers' Benefits Act (AsylbLG) if the breach of duty continued and after the previous restriction of benefits had expired.
The applicants filed an appeal on the same day with the Social Court (SG) against the decision served on them on March 4, 2025, regarding the denial of preliminary legal protection (L 8 AY 6/25 B ER) and regarding the denial of legal aid (L 8 AY 7/25 B), and also applied for legal aid for the appeal proceedings. The Social Court forwarded the appeal to the Higher Social Court of Saxony-Anhalt (LSG Sachsen-Anhalt). In support of their appeal, the applicants argue that a restriction of their entitlement based on Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) is already precluded because, due to the tolerated stay granted to them under Section 60a Paragraph 2 Sentence 1 of the Residence Act (AufenthG), they are entitled to benefits under Section 1 Paragraph 1 No. 4 of the AsylbLG and therefore, according to the wording of the law, do not belong to the group of persons covered by the AsylbLG. Furthermore, they have been receiving a reduction in benefits for years now, which is not constitutionally justifiable (reference to Saxon State Social Court, decision of February 22, 2021 – L 8 AY 9/20 B ER).
The applicants request that,
by setting aside the decision of the Social Court of Magdeburg of March 4, 2025, the suspensive effect of their objection of February 11, 2025 against the decision of the respondent of January 30, 2025 be ordered, and
(in the alternative) that the respondent be ordered by way of preliminary injunction to grant them, provisionally and subject to the right of recovery, the requested benefits in the statutory amount from February 11, 2025, until a final and binding decision is reached on the applicants' objection of February 11, 2025 against the decision of the respondent of January 30, 2025, taking into account the legal opinion of the court.
The respondent requests that
the appeal be dismissed.
He refers to his arguments in the first instance as justification and adds that the legislator does not rule out a subsequent reduction in benefits.
For further details, reference is made to the court files and the administrative files of the respondent and the respondent's immigration authority, which were submitted as files. These were available to the Senate during the decision-making process.
II.
The applicants' appeal is successful.
1.
The appeal filed by the applicants (L 8 AY 6/25 B ER) against 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 between the benefits granted in a reduced amount by the decision of January 30, 2025, and the basic benefits pursuant to Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) for a period of six months.
The appeal is also well-founded. The respondent is provisionally obligated to pay basic benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) for the period from February 11 to August 1, 2025.
The applicants are correctly pursuing their legal objective of receiving full benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) in the appeal proceedings by means of their subsidiary application for a preliminary injunction. According to Section 86b Paragraph 2 Sentence 1 of the Social Court Act (SGG), a preliminary injunction may only be issued in cases where the conditions of Section 86b Paragraph 1 SGG are not met. Section 86b Paragraph 1 SGG covers preliminary legal protection in purely contestable situations. In contrast, a preliminary injunction is permissible in cases where a combined action for annulment and benefit is admissible in the main proceedings. Here, the applicants can only pursue their legal objective with a combined action for annulment and benefit, seeking the annulment of the benefit-restricting decision of January 30, 2025, and the granting of benefits pursuant to Sections 3 and 3a AsylbLG.
The mere action for annulment in the main proceedings does not fully encompass the applicants' request for legal protection. While the applicants were granted benefits from November 14, 2022, until further notice – i.e., indefinitely – by the decision of November 30, 2022, this would, unlike the case of a merely limited (e.g., monthly) or implied benefit grant, generally constitute a purely annulment situation with the admissibility of an application for an order suspending the effect of the decision pursuant to Section 86b Paragraph 1 No. 2 of the Social Court Act (SGG). The decision of August 18, 2023, which initially revoked this indefinite administrative act, was also revoked by the State Administrative Office of Saxony-Anhalt with a "decision on the objection" of November 21, 2023. However, the decision of November 30, 2022, was subsequently revoked again by the decision issued on February 16, 2024. Although the applicants challenged this decision with their lawsuit S 25 AY 37/24 after an unsuccessful objection procedure (objection decision of June 17, 2024), and the outcome of the proceedings is still pending, the lawsuit does not have suspensive effect pursuant to Section 11 Paragraph 4 No. 2 of the Asylum Seekers' Benefits Act (AsylbLG). The application for suspensive effect was rejected by both the Social Court (SG) in its decision of April 11, 2024 (S 25 AY 13/24 ER) and the Higher Social Court of Saxony-Anhalt (LSG Sachsen-Anhalt) in its decision of July 24, 2024 (L 8 AY7/24 B ER). Therefore, it is insufficient to pursue legal protection solely through a simple action for annulment, since, although the restriction of benefits can be removed after the reversal of the reduction decision of January 30, 2025, which is the subject of this lawsuit, the applicants are entitled to relief. However, the applicants are dependent on an approval of benefits ex nunc, as the permanent approval of benefits from November 30, 2022 is not currently being reinstated.
Pursuant to Section 86b Paragraph 2 of the Social Court Act (SGG), the court may issue a preliminary injunction to regulate a provisional state of affairs with regard to a disputed legal relationship if such regulation appears necessary to avert substantial disadvantages. According to Section 86b Paragraph 2 Sentence 4 of the SGG in conjunction with Section 920 Paragraph 2 of the Code of Civil Procedure (ZPO), a prerequisite for a regulatory injunction is the demonstration of grounds for the injunction (the urgency of the regulation to avert substantial disadvantages) and of a claim for the injunction (the sufficient probability of a substantive claim for performance existing in the main proceedings). In principle, due to the provisional nature of the preliminary injunction, the final decision in the main proceedings should not be anticipated. In contrast to main proceedings, the standard of proof in preliminary injunction proceedings does not require the court to be fully convinced of the facts establishing the claim. This is explained by the nature of this procedure, which, due to the urgency of the decision, generally does not permit in-depth, potentially lengthy investigations. Therefore, in preliminary injunction proceedings, only a provisional ruling can be issued, lasting at most the duration of the main proceedings, which is not binding on the court hearing the main case.
The claim for and grounds for an injunction are deemed credible if the factual prerequisites are more likely than not. This requires that the evidence supporting the accuracy of the statements outweighs the evidence against them (see Keller in: Meyer-Ladewig/Keller/Schmidt, SGG, 14th edition 2023, § 86b para. 27, 41). Insofar as an interim injunction also anticipates the decision on the merits, stricter requirements apply to the substantiation of the claim for and grounds for the injunction, because, despite the applicant's legitimate interest in urgent judicial decisions, interim legal protection must not lead to a shift to preliminary injunction proceedings. A present and urgent emergency situation that makes an immediate decision unavoidable is required. Insofar as it concerns the safeguarding of a life of human dignity, the courts must conclusively examine the factual and legal situation, or, if this is not possible, decide on the basis of a balancing of interests based on the facts known from a summary examination (cf. Federal Constitutional Court [BVerfG], decision of 12 May 2005 – 1 BvR 569/05 – juris).
Based on this, and following a summary examination of the current state of facts and legal arguments, the applicants can invoke both a claim for an injunction and grounds for an injunction.
There is a legal entitlement to an order. The prerequisites for entitlement to benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) are met upon preliminary review.
The applicants belong to the group of persons entitled to benefits under Section 1 Paragraph 1 Number 4 of the Asylum Seekers' Benefits Act (AsylbLG). They are foreigners, are actually residing in Germany, and, at the time the decision was issued on January 30, 2025, and beyond, possessed a temporary suspension of deportation (Duldung) pursuant to Section 60a of the Residence Act (AufenthG). As far as can be ascertained, the immigration authority has not yet reissued the intended residence permit to them following the judgment of the Magdeburg Administrative Court of February 28, 2025.
The respondent is the competent authority for granting benefits under the Asylum Seekers' Benefits Act (AsylbLG) (§§ 10, 10a para. 1 AsylbLG, § 1 para. 1 no. 7 General Ordinance on Responsibilities for Municipalities and Districts for the Implementation of Federal Law [AllgZustVO-Kom] of 7 May 1994, last amended by Ordinance of 12 May 2021 [GVBl. LSA p. 284, 285]).
The Senate has considerable doubts as to whether the conditions for the restriction of benefits expressly based on Section 1a Paragraph 4 Sentence 2 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG) in the contested decision of January 30, 2025, are met.
According to Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (as amended on October 25, 2024), persons entitled to benefits under Section 1 Paragraph 1 No. 1 or 1a who have already been
1. international protection or
2. a right of residence for other reasons
only receive reduced benefits in accordance with Section 1a Paragraph 1 of the Asylum Seekers' Benefits Act if the international protection or the right of residence granted for other reasons continues to exist.
The applicants are not covered by the clear wording of the regulation. At the time the decision was issued, they possessed a valid suspension of deportation (tolerated stay) pursuant to Section 60a Paragraph 2 Sentence 1 of the Residence Act, which was extended monthly, currently until March 28, 2025. Therefore, they were entitled to benefits under Section 1 Paragraph 1 Number 4 of the Asylum Seekers' Benefits Act. However, this group of persons is not covered by Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act. The respondent was already informed of this in the Senate's decisions of July 24, 2024 (L 8 AY 7/24 B ER) and December 16, 2024 (L 8 AY 16/24 B ER).
It is unnecessary to determine whether the applicants are also entitled to benefits under Section 1 Paragraph 1 Number 5 of the Asylum Seekers' Benefits Act (AsylbLG) (enforceable obligation to leave the country). According to Section 1a Paragraph 4 Sentence 3 of the AsylbLG, only the benefit restriction under Section 1a Paragraph 4 Sentence 2 Number 2 of the AsylbLG applies to those entitled to benefits under Section 1 Paragraph 1 Number 5 of the AsylbLG. However, the applicants have been granted international protection in Bulgaria, another member state of the European Union (Section 1a Paragraph 4 Sentence 2 Number 1 of the AsylbLG), so that, even according to the respondent's understanding, a benefit restriction under Section 1a Paragraph 4 Sentence 3 of the AsylbLG cannot be considered. Furthermore, following the decision of the Magdeburg Administrative Court of February 28, 2025, which overturned the decision of the Federal Office for Migration and Refugees (BAMF) of June 22, 2023, with the exception of the prohibition on deportation to Syria, the applicants are no longer subject to an enforceable obligation to leave the country.
Insofar as the respondent considers a restriction of benefits pursuant to Section 1a Paragraph 2 of the Asylum Seekers' Benefits Act (AsylbLG) to be possible in the context of the response to the application, the Senate is not obliged to reinterpret the decision.
According to Section 43 Paragraph 1 of the German Social Code, Book X (SGB X), a defective administrative act can be reinterpreted as a different administrative act if it pursues the same objective, could have been lawfully issued by the issuing authority in the procedure and form used, and if the prerequisites for its issuance are met. While the applicants, as beneficiaries under Section 1 Paragraph 1 Number 4 of the Asylum Seekers' Benefits Act (AsylbLG), would fall within the scope of the provision, meaning the prerequisites for its issuance could be fulfilled, the Senate does not need to examine further whether the applicants' entry into the country for the purpose of obtaining benefits was a decisive motive, a further prerequisite under Section 1a Paragraph 2 of the AsylbLG. The burden of proof for this requirement lies with the benefit provider, who must conduct a complete investigation of the facts for the necessary individual assessment (Leopold in: Grube/Wahrendorf/Flint, SGB XII, 8th edition 2024, Section 1a AsylbLG, marginal notes 52, 54). According to Section 43 Paragraph 2 Sentence 1 of the German Social Code, Book X (SGB X), an administrative act may not be reinterpreted if it contradicts the discernible intention of the issuing authority. The respondent did not invoke this provision either in the required hearing or in its decision of January 30, 2025. Since, despite the Senate's instruction, it again expressly based its decision on Section 1a Paragraph 4 Sentence 2 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG) in its ruling of July 24, 2024 (L 8 AY 7/24 B ER), a reinterpretation would clearly contradict its intention.
This also applies to a restriction of benefits under Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG). The respondent has consistently failed to examine whether the prerequisites for this restriction are met. Thus, it remains unclear whether international protection in Bulgaria continues (Section 1 Paragraph 4 Sentence 1 No. 1 AsylbLG) or whether, according to the findings of the Federal Office for Migration and Refugees (BAMF), departure to Bulgaria is legally and factually possible (Section 1 Paragraph 4 Sentence 1 No. 2 AsylbLG). Furthermore, the legal consequences are considerably broader, precluding any reinterpretation.
With regard to the pending action S 25 AY 37/24, the Senate is of the opinion that there is strong evidence to suggest that the respondent's decision of November 30, 2022, which granted the requested benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) on a permanent basis, was not lawfully revoked by the respondent. This is because, upon preliminary review, the prerequisites for revoking this decision appear not to have been met, with the consequence that the decision of February 16, 2024, which is the subject of the action S 25 AY 37/24, is likely unlawful and will probably have to be overturned by the Social Court.
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 administrative act granting a benefit 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. Reliance is generally worthy of protection if the beneficiary has consumed benefits received or has made a financial disposition that they can no longer reverse or can only reverse with unreasonable disadvantages. They cannot invoke reliance if, among other things, they knew of the unlawfulness of the administrative act or were unaware of it 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 16, 2024, on the fact that the applicants were aware of its illegality, this is unconvincing. The applicants, who had been granted basic benefits from November 14, 2022, with the initial benefit award of November 30, 2022, were likely neither aware of the illegality of the benefit award, nor should it have been obvious to them.
In the Senate's view, there is no evidence to date of any positive knowledge on the part of the applicants. The benefits were granted by a formal decision of the respondent, from which the applicants could not discern any indication of an incorrect application of the law. The applicants were likely not given any specific indication of potential illegality at that time. Nor is there any evidence to date of gross negligence in failing to recognize the law. The Asylum Seekers' Benefits Act is a complex system of regulations 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 provisions are hardly comprehensible for laypersons. For asylum seekers—like the applicants—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. There is no indication of incorrect information within the meaning of Section 45 Paragraph 2 Sentence 3 No. 2 of the German Social Code, Book X (SGB X). The respondent does not inquire about alternative protection in the application forms for benefits. However, the asylum procedure was informed of this alternative protection from the outset. The respondent must have been aware that the applicants had been granted international protection by Bulgaria at the time the decision of November 30, 2022, was issued, as the Federal Office for Migration and Refugees (BAMF) referred the applicants to the national procedure on this basis.
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 unlikely to exist, the revocation of the grant decision is a discretionary decision. However, the respondent did not exercise any discretion in its decision of February 16, 2024, as amended by the appeal decision of June 17, 2024.
Due to the lack of provision of subsistence benefits and the absence of further financial resources, the need for urgent assistance must be assumed.
The provisional granting of benefits was to be limited here until August 10, 2025, since in preliminary legal protection proceedings only a present emergency situation is to be eliminated (cf. Keller, aaO, § 86b Rn. 35b).
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 is also admissible pursuant to Section 172 Paragraph 1 of the Social Court Act (SGG). The Social Court (SG) denied legal aid solely due to the lack of prospects of success, so there is no case for the exclusion of the appeal pursuant to Section 172 Paragraph 3 No. 2a) of the SGG. For the reasons stated above, the value in dispute of €750 required for admissibility pursuant to Section 172 Paragraph 3 No. 2b) of the SGG in conjunction with Section 144 Paragraph 1 Sentence 1 No. 1 of the SGG is exceeded.
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 can only afford them 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 applicants are 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).
