DECISION
L 8 AY 18/25 B
S 5 AY 6/25 ER Social Court Stade
In the appeal proceedings
xxx,
– Applicant and complainant –
Legal representative:
Attorney Sven Adam,
Lange-Geismar-Straße 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 June 2, 2025 in Celle through Judge xxx, Judge xxx and Judge xxx:
Upon the applicant's appeal, the decision of the Social Court of Stade of April 29, 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
The applicant's appeal against the denial of legal aid for the first-instance proceedings, 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. 2 lit. b SGG in conjunction with §§ 143, 144 para. 1 sentence 1 no. 1 SGG), is well-founded. The Social Court (SG) wrongly rejected the application for legal aid to conduct the preliminary legal protection proceedings concerning the restriction of entitlement pursuant to § 1a para. 3 AsylbLG for the period from March to August 2025 by the respondent's decision of March 5, 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 outcome 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 in the first instance cannot be deemed to have no prospect of success from the outset. Nor was it frivolous.
The subject of the proceedings was the interim injunction (§ 86b para. 2 SGG) applied for by the applicant in a legally permissible manner, by which the respondent was to be obliged to grant full basic benefits pursuant to § 3 AsylbLG on a provisional basis until the final and binding decision on the applicant's objection of 10 March 2025 (against the decision of 5 March 2025).
Preliminary injunctions are permissible under Section 86b Paragraph 2 Sentence 2 of the Social Court Act (SGG) to regulate a provisional state of affairs with regard to a disputed legal relationship if such regulation appears necessary to avert substantial disadvantages. A prerequisite for issuing a preliminary injunction is that a right asserted against the respondent exists (claim for an injunction) and that the applicant would suffer substantial disadvantages without the issuance of the requested injunction (ground for an injunction). Both the sufficient probability of a substantive claim to performance and the urgency of the regulation to avert substantial disadvantages must be substantiated (Section 86b Paragraph 2 Sentence 4 SGG in conjunction with Section 920 Paragraph 2 of the Code of Civil Procedure (ZPO)).
The existence of a claim for provisionally higher benefits than those granted by the respondent's decision of March 5, 2025, was not excluded or even remotely likely in the proceedings at first instance.
When examining whether the applicant is subject to a restriction of benefits pursuant to Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) due to insufficient cooperation in the residence permit proceedings, difficult legal questions arise for constitutional reasons – assuming the factual prerequisites of the provision are met (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 the (uniform) legal consequences of entitlement restrictions pursuant to Section 1a Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) (cf. the reference to legal consequences in Section 1a Paragraph 3 Sentence 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., for example, Saxony Higher Social Court, decision of December 16, 2021 – L 8 AY 8/21 B ER – juris; North Rhine-Westphalia Higher Social Court, decision of November 8, 2024 – L 20 AY 16/24 B ER – juris; Oppermann in jurisPK-SGB XII, 4th edition 2024, Section 1a AsylbLG marginal note 241 et seq. with further references; Hohm in GK-AsylbLG, 105th edition, January 2025, § 1a para. 560 ff.).
The existence and substantiation of grounds for an injunction are also possible and not (or were) excluded. In cases involving the receipt of benefits reduced on the basis of 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 what is absolutely necessary (cf. Oppermann in jurisPK-SGB XII, 4th ed. 2024, Section 1a AsylbLG, para. 255).
Given his financial circumstances, it is unreasonable to expect the applicant to bear the costs of the legal dispute, 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.
