DECISION
L 8 AY 24/25 B ER
S 5 AY 7/25 ER Social Court Stade
In the appeal proceedings
1. xxx,
2. xxx,
– Applicant and complainant –
Legal representative:
for 1-2: Attorney Sven Adam,
Lange-Geismar-Straße 55, 37073 Göttingen
against
Stade District,
represented by the District Administrator,
Am Sande 2, 21682 Stade
– Respondent and Appellant –
The 8th Senate of the Lower Saxony-Bremen State Social Court decided on June 12, 2025 in Celle through Judge Frerichs, Judge xxx and Judge xxx:
Upon the appeal of the applicants, the decision of the Social Court of Stade of 12 May 2025 is overturned.
The respondent is ordered by way of preliminary injunction to grant the applicants provisionally full basic benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) for the period from March to August 2025, taking into account benefits already granted, but at the latest until a legally binding decision is reached on the objection of March 19, 2025 against the respondent's decision of February 12, 2025.
The respondent must reimburse the applicants' extrajudicial costs for both instances.
The application for legal aid for the appeal proceedings is rejected.
REASONS
I.
The dispute concerns the provisional granting of higher benefits under the Asylum Seekers' Benefits Act (AsylbLG) for March to August 2025, in particular the legality of a restriction of entitlement pursuant to Section 1a Paragraph 4 Sentence 2 AsylbLG.
The applicant, born in 1994, and his wife, born in 1998, are Afghan nationals. They entered Germany on September 25, 2024, with their two minor children (born in 2015 and 2022) and applied for asylum here on October 2, 2024. They have already been granted international protection by Greece (limited until August 18, 2027).
By decision dated October 16, 2024, the Lower Saxony State Reception Authority (LAB) assigned the family to the respondent and ordered them to establish their habitual residence within his district. As part of emergency measures, the family was placed in accommodation at xxx, Buxtehude. They have been granted temporary leave to remain, subject to the condition that they establish their residence there.
On October 25, 2024, the applicants applied to the respondent for benefits under the Asylum Seekers' Benefits Act (AsylbLG) for themselves and their children. After initially being granted basic benefits pursuant to Section 3 of the AsylbLG (decision of October 24, 2024), the respondent notified them by letter dated November 15, 2024, of an intended restriction of their entitlement pursuant to Section 1a Paragraph 4 of the AsylbLG and subsequently restricted the benefit payments for the period from January to June 2025 pursuant to Section 1a of the AsylbLG (decision of December 4, 2024). The respondent granted the applicants' objection to this decision (decision of January 7, 2025) after being made aware of doubts regarding the validity of the notification in expedited proceedings before the Stade Social Court (S 5 AY 7/24 ER). For January 2025, he granted the applicants full basic benefits and announced a separate decision for February 2025. By letter dated January 15, 2025, he notified them of a potential restriction of their entitlement – likely effective from March 2025 – pursuant to Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG), because the applicants were already granted international protection in Greece. By decision dated February 11, 2025, he also granted full basic benefits for February 2025 in accordance with Sections 3 and 3a of the AsylbLG. However, for the period from March to July 2025, he restricted the benefit payment to €1,131.36 per month pursuant to Section 1a of the AsylbLG, and for August 2025 to €1,261.36 (taking into account school supplies) (decision dated February 12, 2025). The applicants filed an objection on March 19, 2025, arguing that it was not time-barred because the instructions on legal remedies were insufficient due to the lack of information regarding the possibility of submitting the objection electronically to the special electronic mailbox for lawyers, and that Section 36a Paragraph 2 of the German Social Code, Book I (SGB I) was not applicable within the framework of the Asylum Seekers' Benefits Act (AsylbLG). Alternatively, they submitted a request for a review of the restriction of their entitlement pursuant to Section 9 Paragraph 4 of the AsylbLG in conjunction with Section 44 of the German Social Code, Book X (SGB X). They argued that the reduction under Section 1a Paragraph 4 of the AsylbLG was unconstitutional and violated EU law. Furthermore, they asserted that the lower benefit calculation under Section 3a of the AsylbLG, compared to 2024 – due to the lack of a valid grandfathering clause in the AsylbLG – was unlawful. To the best of our knowledge, the respondent has not yet decided on the applicants' objection.
On March 19, 2025, the applicants filed an application for a preliminary injunction with the Social Court of Stade, arguing that the restriction of benefits under Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) was clearly unconstitutional because it did not guarantee a dignified minimum standard of living. They also raised concerns because a teleological reduction of Section 1a Paragraph 4 of the AsylbLG, based on an individually culpable breach of duty (which was lacking in this case), was being discussed (Schleswig-Holstein Higher Social Court, decision of June 15, 2020 – L 9 AY 78/20 B ER). Furthermore, they argued that the restriction of benefits did not pursue a legitimate aim and was disproportionate. The rigid sanction period of six months (Section 14 Paragraph 1 of the AsylbLG) was incompatible with the German Basic Law. Finally, they claimed a violation of EU law.
The respondent did not consider a reply necessary in view of the boilerplate-like justification of the application for interim relief, which lacked any concrete, individual reference to the specific case.
The Social Court (SG) rejected the application for an interim injunction, finding that the requirements of Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG) were met because the applicants had already been granted international protection as refugees in Greece on August 19, 2024, and were therefore not subject to the Dublin procedure. It did not share the expressed constitutional concerns because Section 1a AsylbLG was amenable to a constitutionally compliant interpretation (following the Bavarian State Social Court, judgment of March 9, 2023 – L 8 AY 110/22 – juris para. 38-49). While entry into the country did not in itself constitute personal misconduct, the court held that the mere fact that a person, despite being aware of their protection status in another European Union (EU) country, did not voluntarily return there could suffice to establish a breach of duty. The applicants received a corresponding notification regarding the possibility of voluntary departure in the respondent's hearing letter of January 15, 2025.
The short hospital stay of her son does not necessarily preclude his departure (decision of 12 May 2025).
The applicants appeal this decision on May 13, 2025, supplementing their initial submissions with a ruling by the Higher Social Court of Saxony-Anhalt dated February 25, 2025 (L 8 AY 20/24 B ER). They argue that they and their children are also particularly vulnerable individuals in need of protection.
The respondent considers the decision of the Social Court to be correct.
For further details of the facts, reference is made to the contents of the court files as well as the foreigner files concerning the two applicants (in electronic form) and the respondent's benefits file.
II.
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), is well-founded. The Social Court wrongly rejected the application for the issuance of the preliminary injunction.
The urgent application is admissible as an application for the issuance of a preliminary injunction pursuant to Section 86b Paragraph 2 of the Social Court Act (SGG), is also admissible in all other respects and is well-founded on the merits.
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)).
A claim for an injunction exists if the applicant is highly likely to be entitled to the main claim to be secured, i.e., if a preliminary assessment of the main action, based on a summary review, shows that the applicant's success in the main proceedings is highly probable. According to the jurisprudence of the Federal Constitutional Court (BVerfG, decision of May 12, 2005 – 1 BvR 569/05 – juris), decisions in preliminary injunction proceedings for actions to set aside a decision and (as in this case) for actions to take effect may, in principle, be based on both a balancing of interests and a summary review of the prospects of success in the main proceedings. However, Article 19 Paragraph 4 of the Basic Law (GG) sets special requirements for the design of the preliminary injunction proceedings if, as in this case, without the granting of preliminary legal protection, serious and unreasonable impairments could arise that cannot be averted in any other way and that could no longer be remedied by the main proceedings. In such a case, according to the aforementioned decision of the Federal Constitutional Court, if the courts wish to base their decision on the prospects of success in the main proceedings, they must examine the facts and the law not merely summarily, but conclusively. If the courts decide to make a decision on this basis, they must not impose excessive requirements on the applicant's substantiation in the preliminary injunction proceedings; questions of fundamental rights protection must be taken into account. If, however, a complete clarification of the facts and the law is not possible for the court in the preliminary injunction proceedings, a balancing of interests must be carried out. In this case, too, the applicant's fundamental rights must be fully considered in the balancing process. This applies particularly when it comes to safeguarding human dignity. The courts must prevent any violation of this fundamental right, even if it only appears possible or is only temporary (Federal Constitutional Court, ibid.; cf. regarding the balancing of consequences also recently Senate decision of 3 December 2024 – L 8 SO 121/24 B ER – juris para. 8).
Based on these criteria, the Senate decides in favor of the applicants, taking into account the consequences. The applicants are therefore to be granted provisional, full benefits by the respondent in accordance with Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG).
The disputed legal relationship (§ 86b para. 2 sentence 2 of the Social Court Act (SGG)) is based on the applicants' objection – which, as far as can be seen, has not yet been decided – against the decision of February 12, 2025, granting them only reduced benefits pursuant to § 1a para. 4 sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG). In the context of the appeal proceedings, it is unnecessary to determine whether the applicants filed their objection of March 19, 2025, within the prescribed time limit (cf. § 84 SGG), i.e., whether a one-year objection period applies pursuant to § 66 SGG due to an incorrect instruction on legal remedies (§ 66 para. 2 SGG). Should the respondent correctly consider the objection to be time-barred, the disputed legal relationship would (also) be based on the decision on the subsidiary application for review pursuant to § 9 para. 4 no. 1 AsylbLG in conjunction with § 44 of the German Social Code, Book X (SGB X).
The applicants, as holders of residence permits, belong to the group of persons entitled to benefits under Section 1 Paragraph 1 No. 1 AsylbLG.
The applicants' entitlement to ongoing subsistence benefits is assessed based on the examination of the facts and the law, which is both possible and required in preliminary legal proceedings pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG). The Senate has serious doubts as to whether the legal requirements for granting (only) limited benefits, as stipulated in Section 1a Paragraph 4 Sentence 2 No. 1 of the AsylbLG, are met and therefore decides in favor of the applicants based on a balancing of interests, in order to prevent irreparable harm.
According to Section 1a Paragraph 4 Sentence 2 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG), a restriction of entitlement pursuant to Section 1a Paragraph 4 Sentence 1 in conjunction with Paragraph 1 of the AsylbLG applies accordingly to beneficiaries pursuant to Section 1 Paragraph 1 No. 1 or No. 1a of the AsylbLG who have already been granted international protection by another EU Member State or by a third country participating in the distribution mechanism within the meaning of Section 1a Paragraph 4 Sentence 1 of the AsylbLG, if the international protection continues to exist.
These conditions are met according to the wording of Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG). The applicants entitled to benefits under Section 1 Paragraph 1 Number 1 of the AsylbLG during the asylum procedure were already recognized as beneficiaries of protection by Greece on August 19, 2024, and thus immediately before entering Germany, with a validity period until August 18, 2027.
According to the established case law of the Senate, Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG) requires, as an unwritten element of the offense, that the return of the person in question to the country granting protection is possible and reasonable for factual and legal reasons (since the Senate decision of November 19, 2019 – L 8 AY 26/19 B ER – juris para. 17 with further references; now the prevailing opinion: see, for example, Bavarian Higher Social Court, decision of August 26, 2021 – L 19 AY 70/21 B ER – juris para. 24; Higher Social Court of North Rhine-Westphalia, decision of March 27, 2020 – L 20 AY 20/20 B ER – juris para. 27; Schleswig-Holstein Higher Social Court, decision of June 15, 2020 – L 9 AY 78/20 B ER – juris para. 29). See most recently LSG Saxony-Anhalt, decision of 25 February 2025 – L 8 AY 20/24 B ER – juris para. 45; Siefert in Siefert, AsylbLG, 3rd ed. 2025, § 1a para. 60; Leopold in Grube/Wahrendorf/Flint, SGB XII, 8th ed. 2024, § 1a AsylbLG para. 105; cf. also Oppermann in jurisPK-SGB XII, 4th ed. 2024, § 1a AsylbLG para. 140 on the one hand, but on the limits of constitutionally compliant interpretation on the other hand para. 144; contra Bavarian LSG, decision of 10 March 2025 – L 11 AY 58/24 B ER – juris para. 22; critical also Deibel, (ZFSH/SGB 2020, 75 ff.). The Senate adheres to this case law after further review, even in light of the Federal Social Court's (BSG) case law on the now-repealed provision of Section 1a Paragraph 7 of the Asylum Seekers' Benefits Act (AsylbLG), according to which the restriction of entitlement regulated therein in so-called Dublin cases does not contain an unwritten element of the offense in the sense of unlawful conduct on the part of the person concerned (cf. BSG, referral decision of July 25, 2024 – B 8 AY 6/23 R – juris para. 15 and judgment of July 25, 2024 – B 8 AY 7/23 R – juris para. 23). Decisions on the appeals pending before the Federal Social Court (BSG) (case numbers: B 8 AY 4/23 R and B 8 AY 5/23 R, see the presentation of the pending legal issues at www.bsg.bund.de) against decisions of the Bavarian State Social Court (LSG) on Section 1a Paragraph 4 Sentence 2 Asylum Seekers' Benefits Act (AsylbLG) (judgments of March 9, 2023 – L 8 AY 135/22 – juris Rn. 42 ff. and L 8 AY 110/22 – juris Rn. 38 ff.) may contribute to further legal clarification. Until then, the Senate considers the above interpretation of Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG) to be preferable based on systematic and teleological considerations (see Senate decision of 19 November 2019 – L 8 AY 26/19 B ER – juris Rn. 17 with further references).
Taking into account the case law of the CJEU regarding the impermissible rejection of an asylum application pursuant to Section 29 Paragraph 1 No. 2 of the Asylum Act as inadmissible if the person concerned would be exposed to a serious risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the EU (CFR) or Article 3 of the ECHR upon return to the Member State that granted him international protection, for example, if a refugee is completely on his own in the host state and will be forced to live on the streets for a long period of time without access to sanitation or food (see CJEU, Decision of 13 November 2019 – C-540/17 and C-541/17 [Hamed et al.] – juris para. 35 et seq.; see also Federal Administrative Court, Judgment of 17 June 2020 – 1 C 35.19 – juris para. 23 et seq.; ECtHR, Judgment of 21 January 2011 – 30696/09 – MSS v. Belgium and Greece, juris para. 263 et seq. and 365 et seq.; and BVerfG, Decision of 31 July 2018 – 2 BvR 714/18 – juris para. 18 et seq.<Griechenland> ) The overwhelming evidence here speaks in favor of the illegality of the restriction of claims pursuant to Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act. The Federal Administrative Court (BVerwG) recently ruled that the risk of inhuman or degrading treatment for recognized refugees deemed non-vulnerable in Greece is not probable (BVerwG, judgments of April 16, 2025 – 1 C 18.24 – and – 1 C 19.24 – still unpublished, see the BVerwG press release no. 30/2025 of April 16, 2025, available at https://www.bverwg.de/pm/2025/30; similarly, Higher Administrative Court for the State of Mecklenburg-Western Pomerania, judgment of March 17, 2025 – 4 LB 474/23 – juris para. 74; contra Higher Administrative Court of Bremen, judgment of November 16, 2021 – 1 LB 371/21 – juris para. 29; Higher Administrative Court of Lower Saxony, judgment of 19.4.2021 – 10 LB 244/20 – juris para. 23; VGH Baden-Württemberg, Judgment of 27.2.2022 – A 4 S 2443/21 – juris para. 21; OVG North Rhine-Westphalia, Judgment of 21.1.2021 – 11 A 2982/20.A – juris para. 32; OVG Saarland, Judgment of 15.11.2022 – 2 A 81/22 – juris para. 20; Sächsisches OVG, Judgment of 27.4.2022 – 5 A 492/21 A – juris paras. 42 ff.; OVG Berlin-Brandenburg, Judgment of 23.11.2021 – OVG 3 B 53.19 – juris paras. 20-23; (This was even contradicted recently by the Federal Administrative Court (VG Hannover, decision of May 5, 2025 – 15 B 2836/25 – juris 23). However, this assessment applies to the return of employable, healthy, and single young male beneficiaries of protection. According to the findings of the Federal Administrative Court, as outlined in the aforementioned press release, many beneficiaries of protection have no access to state support services immediately upon arrival in Greece due to bureaucratic hurdles and waiting times for the necessary documents, particularly from the current bridging program, the Helios+ integration program, or the state basic income. However, they can likely find accommodation, at least in temporary shelters or emergency accommodations with basic sanitary facilities, which are operated, among others, at the municipal level and by non-governmental aid organizations. They can cover their other basic needs, including food, through their own earned income, initially at least in the informal economy, supplemented, if necessary, by support payments from the aforementioned agencies. Emergency medical care and first aid are guaranteed. Based on this, the jurisprudence of the Federal Administrative Court (BVerwG) cannot be applied to vulnerable refugees in Greece (see also Higher Administrative Court for the State of Mecklenburg-Western Pomerania, judgment of March 17, 2025 – 4 LB 474/23 – juris para. 74; Higher Administrative Court of Schleswig, judgment of September 6, 2019 – 4 LB 17/18 – juris para. 162). The applicants and their minor children, one of whom is a toddler, are – as a nuclear family – vulnerable persons in this sense. It must also be taken into account that the applicants' older son recently required inpatient hospital treatment – albeit only for a few days – due to abnormal weight loss. He is dependent on adequate medical care.
The applicants face a serious infringement of their fundamental rights in the event of an unlawful reduction of benefits to the extent imposed (see Federal Constitutional Court, Judgment of November 5, 2019 – 1 BvL 7/16 – juris para. 120), while the respondent faces a financial loss (which may even be temporary). The courts must prevent any violation of fundamental rights guarantees, even if it is only possible or temporary (Federal Constitutional Court, Decision of February 25, 2009 – 1 BvR 120/09 – juris para. 11).
The matter is urgent because the applicants have credibly demonstrated that they have neither income nor assets. In cases where benefits are reduced pursuant to Section 1a of the Asylum Seekers' Benefits Act (AsylbLG), grounds for an interim order for the provision of benefits under Section 3 AsylbLG regularly exist due to the restriction of economic freedom of action caused by limiting benefits to the bare necessities (see Oppermann in jurisPK-SGB XII, 4th ed. 2024, Section 1a AsylbLG, para. 255).
The decision on costs is based on § 193 SGG.
The applicants' request for legal aid for the appeal proceedings must be rejected. Because the respondent is legally obligated to reimburse the extrajudicial costs for the proceedings in the first and second instances, there is no longer a need for legal protection for the legal aid application (similarly, Federal Constitutional Court, decision of August 1, 2017 – 1 BvR 1910/12 – juris para. 20).
This decision is final and cannot be appealed, § 177 SGG.
