DECISION
L 8 AY 16/25 B
S 5 AY 5/25 ER Social Court Stade
In the appeal proceedings
xxx,
– Applicant and complainant –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
Stade District,
represented by the District Administrator,
Am Sande 2, 21682 Stade
– Respondent –
The 8th Senate of the Lower Saxony-Bremen State Social Court decided on May 28, 2025 in Celle through Judge xxx, Judge xxx and Judge xxx:
Upon the plaintiff's appeal, the decision of the Stade Social Court of April 25, 2025, insofar as it rejected the application for legal aid, is overturned.
The applicant is granted legal aid for the first-instance preliminary injunction proceedings, with the appointment of attorney Adam, Göttingen. Payment in installments is not ordered.
Costs for the appeal procedure are not reimbursable.
REASONS
I.
The dispute concerns the amount of benefits granted to the applicant under the Asylum Seekers' Benefits Act (AsylbLG) and, in particular, the granting of benefits reduced in accordance with Section 1a Paragraph 4 Sentence 2 AsylbLG.
The applicant, born in 2002, is a Syrian national and entered the Federal Republic of Germany in August 2024 after being temporarily registered in Greece. He was granted international protection in Greece on April 23, 2023, initially valid until April 22, 2027 (extract from the EURODAC database dated October 14, 2024). The Lower Saxony State Reception Authority assigned him to the city of Buxtehude, located within the respondent's jurisdiction, effective September 26, 2024 (decision dated September 12, 2024), which placed him in communal accommodation (decision dated September 26, 2024).
At the applicant's request, the respondent granted the applicant pro rata basic benefits and medical assistance benefits for September 2024 and in full for October 2024 pursuant to Sections 3 and 4 of the Asylum Seekers' Benefits Act (AsylbLG) (decision of September 26, 2024). After the respondent became aware, based on a notification from the Federal Office for Migration and Refugees, that the applicant had been granted international protection in Greece, he granted the applicant, following an interim hearing (dated October 14, 2024), limited benefits pursuant to Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) for the period from November 1, 2024, to April 30, 2025 (decision of November 1, 2024). The respondent partially remedied the applicant's objection based on a court notice in interim legal protection proceedings initiated by the applicant (Social Court – SG – Stade – S 5 AY 7/24 ER) by granting the applicant full benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) for the period from November 1, 2024 to February 28, 2025 (decisions dated January 2 and February 6, 2025).
For the subsequent period from March 1 to August 31, 2025, the respondent – after a further hearing on February 6, 2025 – again granted the applicant only limited benefits pursuant to Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG) (decision of February 26, 2025). The applicant filed an objection to this decision on March 9, 2025, which the respondent has not yet ruled on. At the same time, the applicant filed an application with the Social Court of Stade for an interim injunction to provisionally grant full benefits at the statutory rate and applied for legal aid for the preliminary legal proceedings. In support of his application, he referred to doubts regarding the constitutionality of a benefit reduction pursuant to Section 1a Paragraph 4 Sentence 2 of the AsylbLG.
The Social Court rejected the application for legal aid – along with the application for a preliminary injunction. The applicant had failed to demonstrate a plausible claim to the injunction. The respondent had correctly granted reduced benefits by decision of February 26, 2025, based on Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG). The requirements of this provision were met in the applicant's case because he had already been granted international protection by Greece, which was valid until April 22, 2027, meaning that the applicant was no longer subject to the Dublin procedure. The legal basis of Section 1a Paragraph 4 Sentence 2 of the AsylbLG could – despite existing doubts about its constitutionality – be interpreted in a manner consistent with the constitution by requiring, as an additional unwritten element, reprehensible conduct on the part of the benefit recipient for a reduction in benefits. As the Bavarian State Social Court (LSG) has already ruled, reprehensible conduct can consist of a benefit recipient not voluntarily returning to the country granting them protection in another EU member state, despite being aware of their protected status there, but instead remaining in Germany (Bavarian State Social Court, Judgment of March 9, 2023 – L 8 AY 135/22 – juris para. 49). Before the benefit reduction takes effect, the benefit recipient must therefore have been informed, at least within a specified timeframe, that they could avert the reduction by leaving voluntarily. If they remain despite being aware of this possibility, reprehensible conduct exists that justifies the benefit restriction. The respondent informed the applicant of the possibility of averting the benefit reduction in a letter dated February 6, 2025, namely by providing evidence of efforts to leave voluntarily for Greece by February 24, 2025. The applicant has not demonstrated any efforts to find employment and has not travelled to Greece. Grounds for an injunction exist because it is not apparent to the court whether the applicant is currently earning income from employment. Legal action does not offer sufficient prospects of success because the granting of limited benefits pursuant to Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) is, from a preliminary perspective, lawful. The contested constitutionality of the provision alone does not establish sufficient prospects of success for granting legal aid because, after a preliminary review, the decision is in accordance with the requirements arising from a constitutionally compliant interpretation of the provision (decision of April 25, 2025).
The plaintiff appeals the Social Court's decision of April 25, 2025, rejecting his application for legal aid, by way of a complaint filed on April 28, 2025. He bases his appeal—without reference to his specific case—essentially on doubts about the constitutionality of a benefit reduction under Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) and the resulting lack of sufficient prospects for obtaining legal aid. In the same document, the plaintiff also filed a complaint against the rejection of his application for a preliminary injunction (L 8 AY 15/25 B ER).
The respondent has not submitted a statement in the present legal aid appeal proceedings.
II.
The applicant's appeal, which was filed in due form and time (§ 173 SGG) and is in particular admissible (§ 172 para. 3 no. 2 lit. b SGG in conjunction with §§ 143, 144 para. 1 sentence 1 no. 1 SGG), is also admissible in all other respects. Insofar as the applicant has filed an appeal "against the decision of the Stade Social Court of April 25, 2028, received on April 28, 2027, regarding the rejection of legal aid," the appeal must, in interpretation of the grounds of appeal (§ 123 SGG), be considered as being directed against the decision of the Social Court of April 25, 2025, insofar as it rejected the granting of legal aid.
The appeal is also well-founded. The Social Court wrongly rejected the application for legal aid to conduct the preliminary legal protection proceedings concerning the benefit reduction by the respondent's decision of February 26, 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, receives legal aid upon application if the intended legal action or defense offers sufficient prospects of success and does not appear frivolous.
When assessing the prospects of success, all circumstances must be taken into account (B. Schmidt in Meyer-Ladewig/Keller/Schmidt, SGG, 14th ed. 2023, § 73a para. 7). The constitutional framework must be considered when evaluating whether there is a sufficient prospect of success. The assessment of the prospects of success must not serve to shift the actual pursuit or defense of the legal action into the legal aid proceedings; therefore, the requirements for the prospects of success must not be excessive. In light of the rule of law, it is sufficient for the granting of legal aid that there is a sufficient prospect of success in the legal dispute, without the success of the proceedings having to be certain. Legal aid may therefore only be refused if success on the merits is highly unlikely (Federal Constitutional Court, decision of April 7, 2000 – 1 BvR 81/00 – juris para. 15). Sufficient prospects of success exist if the applicant has a realistic possibility of achieving their legal objective through judicial review. For this purpose, it is sufficient if the court, based on a summary examination of the facts and the available documents, considers the applicant's legal position to be correct or at least tenable, and assumes that the applicant has the opportunity to present evidence (B. Schmidt in Meyer-Ladewig/Keller/Schmidt, SGG, 14th ed. 2023, § 73a para. 7a with further references). A certain probability of success is sufficient (B. Schmidt, ibid., § 73a para. 7). If the court deems it necessary to obtain an expert opinion or to gather other evidence ex officio, a prospect of success cannot generally be denied (Federal Constitutional Court, decision of September 29, 2004 – 1 BvR 1281/04 – juris para. 14). 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 a sufficient prospect of success (Gall in jurisPK-SGG, 2nd ed. 2022, § 73a para. 46 with further references).
Based on these criteria, the legal action cannot be deemed to have no prospect of success from the outset. Nor is it frivolous.
The subject of these proceedings is the applicant's request for a preliminary injunction (§ 86b para. 2 of the Social Court Act [SGG]), which seeks to compel the respondent to grant full basic benefits pursuant to § 3 of the Asylum Seekers' Benefits Act (AsylbLG) provisionally until a final and binding decision is reached on the applicant's objection of March 7, 2025 (against the decision of February 26, 2025). Since the respondent has not yet granted benefits for the period from March 1, 2025, to the applicant, the applicant is seeking a preliminary injunction. Since no basic benefits under Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) were granted prior to August 31, 2025, but rather, with the contested decision of February 26, 2025, directly reduced benefits for the future period were granted on the basis of Section 1a Paragraph 4 of the AsylbLG, a simultaneous revocation of previous benefit grants was not necessary (cf. regarding this requirement, Higher Social Court of Baden-Württemberg, judgment of June 2, 2022 – L 7 AY 82/20 – juris para. 37; Oppermann in jurisPK-SGB XII, 4th ed. 2024, Section 1a AsylbLG para. 248), so that, in the main proceedings, the applicant's objection of March 7, 2025, constitutes a legal dispute within the meaning of Section 86b Paragraph 2 of the Social Courts Act (SGG), creating a situation of obligation, and the requested preliminary injunction is the appropriate legal remedy. This constitutes preliminary legal protection proceedings.
The existence of a claim to full benefits under Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) is not excluded or even remotely likely.
When examining whether the applicant is subject to a benefit restriction pursuant to Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG) or is entitled to full benefits pursuant to Section 3 of the AsylbLG, difficult legal questions arise due to doubts about the constitutionality of this provision (see, in this regard, the Senate decision of December 4, 2019 – L 8 AY 36/19 B ER – juris), which, according to the aforementioned standards, already provide sufficient prospects of success for the granting of legal aid. Whether Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG) or the (uniform) legal consequences of benefit restrictions pursuant to Section 1a Paragraph 1 AsylbLG are compatible with 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) is highly controversial in case law and legal literature and has not yet been definitively settled by the highest court (cf., regarding the state of the debate, Oppermann in jurisPK-SGB XII, 4th edition 2024, Section 1a AsylbLG, marginal notes 141 et seq. with further references; Frerichs in jurisPK-SGB XII, 4th edition 2024, Section 1 AsylbLG, marginal note 55, footnote 107 with further references; Siefert in Siefert, AsylbLG, 2nd edition 2020, Section 1a, marginal note 52; on For criticism of the concept of legal consequences, see Hohm in GK-AsylbLG, 105th issue, January 2025, § 1a para. 560 et seq.). This applies in particular with regard to the decision of the Federal Constitutional Court of 5 November 2019 (1 BvL 7/16) on possible sanctions within the framework of basic income support for job seekers under the German Social Code, Book II (SGB II). According to this decision, every person entitled to benefits must be able to end a "sanction"—which would likely also include the restriction of benefits based on § 1a AsylbLG—through reasonable conduct. However, within the framework of Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG), the sole criterion is the entry into the federal territory – contrary to European distribution decisions – which can no longer be reversed by the person entitled to benefits (see Siefert in Siefert, AsylbLG, 2nd edition 2020, Section 1a Paragraph 52).
The interpretation of Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG) deemed possible by the Social Court (SG) through an additional, unwritten element of the offense, namely "reprehensible conduct of the benefit recipient," is problematic because the legislator deliberately refrained from including such a requirement in the wording of the provision, instead basing the reduction of benefits solely on the benefit recipient's continued residence in Germany (see BT-Drs. 19/20984 of July 13, 2020, on the effects of the 2019 amendment to the AsylbLG, p. 8 on Section 1a Paragraphs 4 and 7; furthermore, Oppermann in jurisPK-SGB XII, 4th ed. 2024, Section 1a AsylbLG, marginal note 144). Moreover, the Senate has already ruled that in cases where the transfer of the benefit recipient to the EU member state responsible for granting protection is impossible or unreasonable (e.g., in the case of vulnerable individuals), a reduction in benefits pursuant to Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG) is not permissible (Senate decision of November 19, 2019 – L 8 AY 26/19 B ER – juris para. 17). Therefore, the mere fact that the benefit recipient has acted reprehensibly, without further consideration of hardship cases and individual reasons for remaining in Germany (cf., for example, regarding a violation of Article 3 ECHR in the case of threatened inhuman and degrading treatment in another EU member state: Oppermann in jurisPK-SGB XII, 4th ed. 2024, Section 1a AsylbLG para. 147 et seq.), cannot be used as the basis for a constitutionally compliant interpretation of the provision.
The existence and substantiation of grounds for an injunction are also possible and not excluded. In cases of receiving benefits reduced under Section 1a of the Asylum Seekers' Benefits Act (AsylbLG), grounds for an interim injunction to provide benefits pursuant to Section 3 AsylbLG regularly arise from the restriction of economic freedom of action due to the limitation of benefits to the bare necessities (see Oppermann in jurisPK-SGB XII, 4th ed. 2024, Section 1a AsylbLG, para. 255). Whether the applicant's commencement of full-time employment with TimePartner Personalmanagement GmbH (from 10.4.2025), which only became known during the course of the appeal proceedings L 8 AY 15/25 B ER – which were conducted parallel to the present proceedings – could eliminate the need for subsistence benefits under Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) for the future and thus argue against the assumption of grounds for an injunction, will be definitively assessed by the Senate in proceedings L 8 AY 15/25 B ER. For the present legal aid appeal proceedings, this factual circumstance is not relevant because, for the assessment of sufficient prospects of success within the meaning of Section 73a of the Social Court Act (SGG), the relevant point in time for the assessment of the merits of the case in the first-instance legal aid proceedings, i.e., the date of application on March 7, 2025, is also decisive in the appeal proceedings (see Higher Social Court of North Rhine-Westphalia, decision of January 11, 2018 – L 19 AS 2281/17 B – juris para. 29; B. Schmidt in Meyer-Ladewig/Keller/Schmidt, SGG, 14th ed. 2023, Section 73a para. 7d; furthermore Gall in jurisPK-SGG, 2nd ed. 2022, Section 73a para. 52 with further references; see also, comprehensively on the relevant point in time, Leopold in BeckOGK-SGG, as of May 1, 2025). § 73a para. 60 et seq.). This also applies in particular to subsequent changes to the detriment of the applicant (cf. in this regard, in the case of a delayed decision on an application for legal aid, Federal Constitutional Court, decision of 16 April 2019 – 1 BvR 2111/17 – juris para. 25), which in this case might consist of the subsequent commencement of work from 10 April 2025.
Given his financial circumstances, it is unreasonable to expect the applicant to bear the costs of the legal proceedings, 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).
The decision on costs is based on Section 73a of the Social Court Act (SGG) in conjunction with Section 127 Paragraph 4 of the Code of Civil Procedure (ZPO).
This decision is final and cannot be appealed, § 177 SGG.
