DECISION
In the legal dispute
1. xxx,
– Applicant –
2. xxx,
– Applicant –
Legal representative:
Attorney Sven Adam,
Lange-Geismar-Straße 55, 37073 Göttingen,
against
Fulda District,
represented by the District Committee,
Department 5300 Central Specialist Service,
Robert-Kircher-Straße 24, 36037 Fulda,
Respondent,
The 7th Chamber of the Fulda Social Court decided on June 4, 2025, through Judge xxx of the Social Court:
1. The suspensive effect of the objection lodged on 04.05.2025 against the decision of 24.04.2025 is ordered.
2. The respondent shall reimburse the applicants for the necessary extrajudicial costs of the legal proceedings.
3. The applicants are granted legal aid without installment payments for the first instance proceedings, effective from May 4, 2025, with the appointment of Mr. Adam, Attorney at Law, in Göttingen. The appointment is subject to the same conditions as for an attorney established within the district of the court hearing the case.
REASONS
With the present application for preliminary legal protection, the applicants seek an order suspending the effect of their objection, filed on May 4, 2025, against the decision of April 24, 2025. This application is admissible pursuant to Section 86b Paragraph 1 No. 2 of the Social Court Act (SGG) and is also admissible in all other respects. The respondent's decision of April 24, 2025, by which the initial decision of August 27, 2024, was revoked with regard to the benefit amount from May 1, 2025, and the monthly benefits for the period from May 1, 2025, to August 31, 2025, were recalculated pursuant to Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG), constitutes an administrative act by which a benefit under the AsylbLG was partially withdrawn and against which objection and appeal pursuant to Section 11 Paragraph 4 No. 1 of the AsylbLG have no suspensive effect.
The application is also well-founded.
Pursuant to Section 86b Paragraph 1 Sentence 1 Number 2 of the Social Court Procedure Act (SGG), the court of first instance may, upon application, order the suspensive effect in whole or in part in cases where an objection or appeal does not have suspensive effect. The decisive factor in determining whether an application under Section 86b Paragraph 1 Sentence 1 Number 2 SGG is successful is whether, within the framework of an open balancing of interests, a public interest in the immediate enforceability of the administrative act takes precedence over the legitimate interests of the addressee. If the objection or appeal in the main proceedings is manifestly inadmissible or unfounded, the application for an order of suspensive effect must generally be rejected without further balancing of interests in the cases specified in Section 86a Paragraph 2 Numbers 2–4 SGG, because no legitimate interest of the addressee of the decision can oppose the legally mandated immediate enforceability of the administrative act. If, on the other hand, the objection and the main action are clearly admissible and well-founded, the application must be granted because there is then no public interest in immediate enforceability. If the prospects of success cannot be assessed, a general balancing of interests remains, taking into account the degree of likelihood of success in the main proceedings. The principle applies: the greater the prospects of success, the lower the requirements for the applicant's interest in a stay of execution. Conversely, the requirements for the prospects of success are lower the more severe the effect of the administrative measure. The consequences that would ensue if the preliminary injunction were not issued, but the action were later successful, must be weighed against the disadvantages that would arise if the requested preliminary injunction were issued, but the action were ultimately unsuccessful. In this assessment, it may be taken into account that the legislator has provided for immediate enforcement as a general rule, as long as the applicant's interest in legal protection is respected in accordance with their rights under Article 19 Paragraph 4 Sentence 1 of the Basic Law, and in particular, as long as immediate enforcement does not entail severe, unreasonable hardship for them. (Keller in: Meyer-Ladewig/Keller/Schmidt, Social Courts Act, 14th edition 2023, § 86b, marginal notes 12 f, 12c, 2a).
Measured against this standard, the application for an order suspending the effect of the objection against the decision of 24 April 2025 was to be granted, because this decision proves to be manifestly unlawful.
With the contested decision of April 24, 2025, the respondent revoked the initial decision of August 27, 2024, regarding the benefit amount as of May 1, 2025, and recalculated the benefits granted to the applicants for the period from May 1, 2025, to August 31, 2025. The respondent argues that the benefit award pursuant to the decision of August 27, 2024, was unlawful from the outset, as the conditions for a restriction of entitlement under Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG) are met. Whether this is actually the case is ultimately irrelevant, as the conditions for a restriction of entitlement beyond April 30, 2025, are not met.
Pursuant to Section 14 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG), the restrictions on benefits under this Act are to be limited to six months. The respondent already imposed such a six-month restriction on benefits by decision dated October 10, 2024, as amended by the appeal decision dated January 3, 2025, which is the subject of the legal proceedings under file number S 7 AY 1/25, for the period from November 1, 2024, to April 30, 2025. According to Section 14 Paragraph 2 of the AsylbLG, the restriction on benefits is to be continued if a breach of duty continues, provided that the legal requirements for the restriction of benefits continue to be met. However, no such breach of duty exists in this case. The legal basis for the benefit reduction under Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) is not based on any specific misconduct by the benefit recipients, but rather on the fact that these individuals are subject to the European asylum regime or a third-country-related protection regime and are residing in Germany. The sanction is directed at an asylum or immigration situation intended to counteract undesirable secondary migration within Europe (State Social Court of Saxony-Anhalt, Decision of August 2, 2018 – L 8 AY 2/18 B ER –, juris, para. 19; Oppermann in: Schlegel/Voelzke, jurisPK-SGB XII, 4th ed., Section 1a AsylbLG (as of January 14, 2025)), and thus not on any breach of duty by the benefit recipient. Therefore, in situations such as the present one, a restriction of entitlement beyond the six-month period stipulated in Section 14 Paragraph 1 AsylbLG is not permissible.
Since the contested decision of 24 April 2025 is therefore obviously unlawful, the application for preliminary legal protection was to be granted and the suspensive effect of the objection lodged on 4 May 2025 was to be ordered.
The decision on costs is based on a corresponding application of Section 193 of the Social Court Act (SGG).
The applicants were to be granted legal aid, as they are unable to pay the costs of litigation, even in installments, due to their personal and financial circumstances. Furthermore, the application has a reasonable prospect of success and does not appear frivolous (Sections 73a of the Social Courts Act (SGG) and 114 of the Code of Civil Procedure (ZPO)). Legal representation is required (Sections 73a of the Social Courts Act (SGG) and 121 Paragraph 2 of the Code of Civil Procedure (ZPO)).
Section 121, paragraph 3 of the German Code of Civil Procedure (ZPO) stipulates that a lawyer not established within the district of the court hearing the case can generally only be appointed if this does not result in additional costs. Since no special circumstances justifying the appointment of a lawyer from outside the district are apparent, the appointment of the lawyer from outside the district can only be made under the same conditions as for a lawyer established within the court's district (B. Schmidt in: Meyer-Ladewig/Keller/Schmidt, Sozialgerichtsgesetz [Social Courts Act], 14th edition 2023, § 73a, marginal note 9c with further references).
The following is information on legal remedies.
