DECISION
L 8 AY 22/25 B ER
S 20 AY 4/25 ER Social Court Braunschweig
In the appeal proceedings
1. xxx,
2. xxx,
– Applicant –
Legal representative: for 1-2:
Attorney Sven Adam,
Lange Geismarstraße 55,
37073 Göttingen
against
Gifhorn District Social Services Department, District Office II,
Schlossplatz 1,
38518 Gifhorn
– Respondent –
The 8th Senate of the Lower Saxony-Bremen State Social Court decided on May 27, 2025 in Celle through Judge xxx, Judge xxx and Judge xxx:
The applicants are granted legal aid for the appeal proceedings from the date of application, with the appointment of attorney Adam, Göttingen. Payment in installments is not ordered.
REASONS
The applicants are to be granted legal aid (PKH) for the purpose of conducting the appeal proceedings, as requested. The proceedings concern the decision of the Social Court (SG) Braunschweig of May 7, 2025, insofar as it rejected the application for interim relief against the respondent's decision of February 19, 2025, to discontinue benefits, based on the assumption of an exclusion from benefits pursuant to Section 1 Paragraph 4 Sentence 1 No. 2 of the Asylum Seekers' Benefits Act (AsylbLG) (so-called Dublin III cases), for the period from February 20, 2025.
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), a party who, according to their personal and economic circumstances, cannot afford the costs of litigation, can only afford them in part or in installments, is entitled to legal aid (PKH) upon application, if the intended legal action or defense offers sufficient prospects of success and does not appear frivolous.
Sufficient prospects of success exist if the court, based on the description of the facts and the available documents, considers the applicant's legal position to be correct or at least tenable, and assumes the possibility of proving it, and the legal action does not appear frivolous (Schmidt in Meyer-Ladewig/Keller/Schmidt, SGG, 14th ed. 2023, § 73a para. 7a with further references). A certain probability of success is sufficient (Schmidt, ibid., § 73a para. 7). In cases where there is a partial prospect of success, legal aid must be granted without limitation for the entire proceedings in court-fee-free proceedings pursuant to Section 183 of the Social Court Act (SGG), because the attorney's entitlement to remuneration is not reduced by only partial legal aid (Gall in juris PK-SGG, 2nd ed. 2022, Section 73a para. 50; Lower Saxony-Bremen Higher Social Court, decision of August 3, 2007 – L 7 B 232/05 AS – juris para. 3). If the parties are in dispute over complex legal issues requiring clarification, there is a sufficient prospect of success because the clarification of these complex legal issues is reserved for the main proceedings (Federal Constitutional Court, decision of February 14, 2017 – 1 BvR 2507/16 – juris paras. 13, 19). Even if there are doubts about the constitutionality of a regulation, legal aid must be granted due to sufficient prospects of success (Gall, aaO, § 73a Rn. 46 with further references).
Based on these criteria, the legal action has a sufficient prospect of success. It is also not frivolous.
The appeal, which was filed in due form and time (§ 173 SGG) and is also admissible in all other respects, in particular permissible (§ 172 para. 3 no. 1 SGG in conjunction with §§ 143, 144 para. 1 sentence 1 no. 1 SGG), may be well-founded.
After a summary review of the facts and the law, the appropriate type of application is the one sought by the applicants, namely the order for suspensive effect pursuant to Section 86b Paragraph 1 Sentence 1 No. 2 of the Social Court Act (SGG), because, according to Section 11 Paragraph 4 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG), objections and appeals against an administrative act that wholly or partially withdraws benefits under the AsylbLG or revokes the grant of benefits do not have suspensive effect. Ordering suspensive effect – here, the objection to the decision of February 19, 2025 – requires a balancing of interests, taking into account the prospects of success in the main proceedings (Keller in Meyer-Ladewig/Keller/Schmidt, SGG, 14th ed. 2023, Section 86b, marginal notes 12e et seq.).
According to the Social Court's findings, the respondent's termination notice of February 19, 2025, effectively revokes the grant notice of December 13, 2024, which originally granted the applicants benefits under Sections 1 and 3 of the Asylum Seekers' Benefits Act (AsylbLG) in the amount of €794.00 per month, starting in January 2025. According to the operative part of the notice of February 19, 2025, the respondent terminated the benefits granted to the applicants under Sections 1, 3-7 of the AsylbLG as of January 31, 2025. Assuming the respondent's position that an exclusion from benefits applies here pursuant to Section 1 Paragraph 4 Sentence 1 No. 2 AsylbLG, the legal basis for this revocation decision – contrary to the reasoning of the contested decision – should be Section 9 Paragraph 3 AsylbLG in conjunction with Section 45 Paragraph 1, Paragraph 2 SGB X. Insofar as the factual prerequisites for an exclusion from benefits under Section 1 Paragraph 4 Sentence 1 No. 2 of the Asylum Seekers' Benefits Act (AsylbLG) are met (see below), this exclusion applies as a legal consequence even if the decision of the Federal Office for Migration and Refugees (BAMF) regarding the inadmissibility of the asylum application under Section 29 Paragraph 1 No. 1 in conjunction with Section 31 Paragraph 6 of the Asylum Act (AsylG) and the deportation order under Section 34a Paragraph 1 Sentence 1 Alternative 2 of the Asylum Act (AsylG) are "not yet final," i.e., regularly upon their notification or service (see Wittmann, Committee Document 20(4)493 A new, p. 76). According to the file, this occurred on December 10, 2024 (see page 49 of the applicants' immigration files). Based on this, according to the respondent's legal position, the prerequisites for the revocation of an initial unlawful benefit decision (dated 13.12.2024) pursuant to Section 9 Paragraph 3 AsylbLG in conjunction with Section 45 Paragraphs 1 and 2 SGB X would have to be examined.
In addition to the question of whether the respondent properly exercised its discretion to revoke the decision of February 19, 2025, pursuant to Section 9 Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Section 45 Paragraph 2 Sentence 1 of the German Social Code, Book X (SGB X), further difficult and controversial legal questions arise here and in the administrative proceedings in connection with the exclusion from benefits under Section 1 Paragraph 4 of the AsylbLG. These include, for example, the interpretation of the element of the offense included in the law based on the recommendation and report of the Committee on Internal Affairs and Community (4th Committee; BT-Drs. 20/13413, p. 53), namely that departure must be legally and factually possible according to the BAMF's determination (see, for example, Hamburg Social Court, decision of April 11, 2025 – S 28 AY 188/25 ER – juris Rn. 38 ff.; Hamburg Social Court, decision of April 17, 2025 – S 7 AY 196/25 ER – juris para. 16; see also Frerichs in jurisPK-SGB XII, 4th ed. 2024, § 1 AsylbLG para. 206.7 ff.). Furthermore, the fundamental question arises, which may not be answered in these proceedings, as to whether the provision is compatible with constitutional and European law (cf., for example, SG Karlsruhe, decision of 25 February 2025 – S 12 AY 379/25 ER – juris para. 22; Wittmann, Committee Document 20(4)493 A new, pp. 74 ff.; Frerichs, ibid., § 1 para. 200 ff. with further references).
Against this background, it is neither impossible nor far-fetched that the balancing decision to be made pursuant to Section 86b Paragraph 1 No. 2 of the Social Court Act (SGG) will be in favor of the applicants, especially since the granting of subsistence benefits is in dispute here. However, it may be necessary to consider in the balancing decision that the respondent has assumed, at least since the expiry of the transfer deadline in the Dublin procedure (on May 6, 2025), that the applicants are (in principle) entitled to benefits under the Asylum Seekers' Benefits Act (AsylbLG).
Given their economic circumstances, it is unreasonable to expect the applicants to bear the costs of the legal proceedings themselves, even partially or in installments.
The appointment of the lawyer is based on Section 73a of the Social Court Act (SGG) in conjunction with Section 121 Paragraph 2 of the Code of Civil Procedure (ZPO).
This decision is final and cannot be appealed by the parties to the proceedings, § 177 SGG.
