DECISION
In the legal dispute
xxx,
Applicant,
Legal representative:
Attorney Sven Adam
, Lange-Geismar-Straße 55, 37073 Göttingen
against
State of Hesse,
represented by the Regional Council of Gießen,
Department VI,
Landgraf-Philipp-Platz 1 7, 35390 Gießen,
Respondent,
The 16th Chamber of the Marburg Social Court decided on May 30, 2025, through its presiding judge, Judge xxx:
The suspensive effect of the applicant's objection of 09.04.2025 against the respondent's decision of 31.03.2025 is ordered.
The respondent must reimburse the applicant for the necessary extrajudicial costs.
The applicant is granted legal aid without installment payments for the first instance proceedings, with the appointment of lawyer Sven Adam, effective from 09.4.2025.
The appointment is made under the conditions of a lawyer established in the district of the court hearing the case.
REASONS
I.
The applicant seeks to have the suspensive effect of his objection against a decision by the respondent, which terminated benefits under the Asylum Seekers' Benefits Act (AsylbLG).
The applicant was born on [date] in Tehran, Iran, and holds Iranian citizenship. He was registered at the initial reception center of the state of Hesse on November 5, 2024. He submitted an application for asylum.
By decision dated 08.1.2025, the applicant was granted benefits in kind as well as benefits to cover the necessary personal needs in accordance with Section 3 Paragraphs 1 and 2 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Section 3a Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG).
The Federal Office for Migration and Refugees (BAMF) rejected the applicant's asylum application as inadmissible in a decision dated January 17, 2025, and ordered his deportation to Croatia. Departure was deemed legally and practically possible.
Subsequently, the respondent notified the applicant by letter dated March 5, 2025, regarding an intended cessation of benefits pursuant to Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG).
By decision dated March 31, 2025, the respondent revoked the decision of January 8, 2025, with immediate effect and ordered that the applicant would henceforth receive no benefits under the Asylum Seekers' Benefits Act (AsylbLG) pursuant to Section 1 Paragraph 4 – except for bridging benefits until departure, but no later than April 17, 2025. The decision of the Federal Office for Migration and Refugees (BAMF) of January 17, 2025, had subsequently revealed facts that justified the decision granting benefits as unlawful. There was no entitlement to benefits under the Asylum Seekers' Benefits Act (AsylbLG) pursuant to Section 1 Paragraph 4 No. 2.
The applicant lodged an objection by letter from his legal representative dated April 9, 2025.
On April 9, 2025, the applicant filed an application for preliminary legal protection with the Darmstadt Social Court.
The Darmstadt Social Court declared itself to lack local jurisdiction by decision of April 11, 2025, and referred the legal dispute to the Marburg Social Court.
The applicant argues that Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) is unconstitutional because it violates the fundamental right to a dignified minimum standard of living. Section 1 Paragraph 4 of the AsylbLG allows for a complete exclusion from benefits. No individual breach of duty is apparent. Section 1 Paragraph 4 of the AsylbLG does not pursue a legitimate aim within the meaning of the Federal Constitutional Court's jurisprudence, as it serves migration policy purposes with a repressive objective. The exclusion does not meet the strict requirements of proportionality that must be met when reducing subsistence benefits to enforce obligations to cooperate. Section 1 Paragraph 4 of the AsylbLG does not allow those affected any recourse.
Furthermore, Section 1 Paragraph 4 of the AsylbLG violates EU law. A reduction pursuant to Article 20(1)(c) of Directive 2013/33/EU (Reception Directive) is only permissible if the beneficiary can be accused of misconduct, which is not the case here. Furthermore, there is a violation of Article 20(5) of the Directive, as the principle of proportionality is not being taken into account and a dignified standard of living is not being guaranteed.
The applicant requests that
the suspensive effect of the applicant's objection of 09.04.2025 against the respondent's decision of 31.03.2025 (file no.: VII 73 – 36745/2024) be ordered.
The respondent requests that
the application be rejected.
He maintains that the decision to discontinue his asylum application was lawful. The requirements of Section 1 Paragraph 4 No. 2 of the Asylum Seekers' Benefits Act (AsylbLG) are met. The provision violates neither European law nor constitutional law. At the European level, member states have an obligation to safeguard the obligation to leave the country at the level of social welfare benefits. Without the provision of Section 1 Paragraph 4 No. 2 AsylbLG, the already poorly functioning Dublin system would collapse. The provision is therefore required under European law to ensure the practical implementation of the Dublin Regulation. At the constitutional level, the Federal Constitutional Court's statements cannot be applied without limitations to cases under Section 1 Paragraph 4 No. 2 AsylbLG.
For further details of the facts and the legal arguments, reference is made to the contents of the court file and the electronic administrative file of the defendant, which were the subject of the decision-making process.
II.
The application is admissible and well-founded.
The application is admissible.
Insofar as the applicant seeks an order suspending the effect of his objection to the dismissal order, the appropriate procedure is that under Section 86b Paragraph 1 Sentence 1 No. 2 of the Social Courts Act (SGG). According to this provision, the court of first instance may, upon application, order the suspension of the dismissal order in whole or in part in cases where an objection and an appeal do not have suspensive effect. Pursuant to Section 11 Paragraph 4 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG), an objection and an appeal against an administrative act that wholly or partially withdraws a benefit under this Act or revokes the granting of benefits do not have suspensive effect (Social Court Hamburg, Decision of April 11, 2025, S 28 AY 188/25 ER). The decision challenged by objection in this case is a revocation order in the aforementioned sense, as it revokes the previously granted benefits. If the suspensive effect were ordered, the applicant would achieve his legal objective, since the benefit decision grants benefits on a permanent basis. Therefore, an order establishing a provisional state of affairs within the meaning of Section 86b Paragraph 2 Sentence 2 of the Social Court Act (SGG) is not necessary in this respect.
The application is also justified.
Pursuant to Section 86b Paragraph 1 Sentence 1 No. 2 of the Social Court Act (SGG), the court may, upon application, order the suspension of enforcement in whole or in part in cases where – as here due to Section 11 Paragraph 4 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG) – an objection or appeal does not have suspensive effect. The balancing of interests required when deciding on the order of suspensive effect under Section 86b Paragraph 1 SGG must encompass all public and private interests that are relevant in the individual case. In the summary review generally required in preliminary legal protection proceedings, the legislative decision to waive suspensive effect must, in principle, be considered, thus initially giving priority to the public interest in immediate enforcement. A deviation from this is only warranted if an overriding interest of the person burdened by the administrative act can be established. The order of suspensive effect must therefore remain an exception that requires compelling arguments. The court's review is not based on a rigid examination scheme. The greater the prospects of success, the lower the requirements for establishing a legitimate interest in suspension. If the administrative act is manifestly unlawful and the affected party's subjective rights are violated by it, suspension will be granted because there is then no public interest or interest of a third party in its enforcement (see Keller in: Meyer-Ladewig et al., SGG, 14th ed. 2023, § 86b para. 12c et seq.; Hess. LSG, decision of 26.02.2020 – L 4 AY 14/19 B ER –, Juris para. 8).
Taking these criteria into account, the suspensive effect of the objection should be ordered in the present case because, after the required summary examination, there is a preponderance of prospects for success.
It cannot be conclusively determined at this time whether the action would be successful on the merits. This is because, in weighing the consequences, the referral order of the Federal Social Court of July 25, 2024 (B 8 AY 6/23) to the European Court of Justice must be taken into account. The legal questions raised regarding Section 1a Paragraph 7 of the Asylum Seekers' Benefits Act (AsylbLG) have direct implications for the relevant provision here and are therefore significant with regard to the protection of fundamental rights. The answers to these questions are also likely to have a direct impact on the benefit restriction under Section 1 Paragraph 4 No. 2 of the AsylbLG, which is relevant here. Considering the enforcement interest of the authorities versus the interests of the applicants, the enforcement interest must take a back seat. Because, with regard to the pending main proceedings, the applicants' right to a dignified basic level of care until actual deportation takes place must be given priority (SG Darmstadt, decision of 04.02.2025, S 16 AY 2/25 ER).
The concerns regarding the legality of such a suspension of benefits, convincingly presented by the Social Court of Darmstadt, are overwhelmingly shared by the courts (see, for example, Social Court of Landshut, decision of December 18, 2024, S 11 AY 19/24 ER; Social Court of Karlsruhe, decision of February 25, 2025, S 12 AY 379/25 ER; Social Court of Trier, decision of February 20, 2025, S 3 AY 4/25 ER; Social Court of Speyer, decision of February 20, 2025, S 15 AY 5/25 ER; Social Court of Mainz, decision of March 24, 2025, S 10 AY 2/25 ER; Social Court of Gießen, decision of April 14, 2025, S 30 AY 32/25 ER; Social Court of Kassel, decision of May 7, 2025, S 6). AY 1/25 ER). The Chamber fully adopts these concerns after careful examination and consideration of all aspects. The right to a dignified basic level of care until actual deportation takes precedence.
The application was therefore to be granted in full.
The decision on costs is based on Section 193 of the Social Court Act (SGG), which is applicable in summary court proceedings, and reflects the outcome of the proceedings.
The applicant is to be granted legal aid for the present expedited proceedings, including the appointment of his legal representative. Pursuant to Sections 73a of the Social Court Act (SGG) and 114 of the Code of Civil Procedure (ZPO), a party who, due to his personal and financial circumstances, cannot afford the costs of litigation, or can only afford them in part or in installments, is entitled to legal aid upon application, provided that the intended legal action or defense has a reasonable prospect of success and does not appear frivolous. In accordance with Section 115 of the Code of Civil Procedure, the party must utilize his income and assets in accordance with the statutory provisions. Since the applicant receives asylum seeker benefits, he is unable, due to his personal and financial circumstances, to finance the litigation from his own resources. For the reasons stated above, his application for expedited proceedings also has a reasonable prospect of success and is not frivolous.
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