DECISION
L 8 AY 12/25 B ER
S 5 AY 3/25 ER Social Court Stade
In the appeal proceedings
xxx,
– Applicant –
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 13, 2025 in Celle through Judge xxx, Judge xxx and Judge xxx:
Upon the applicant's appeal, the decision of the Stade Social Court of April 14, 2025 is overturned.
The respondent is ordered by way of preliminary injunction to grant the applicant provisional benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) from January 29 to September 30, 2025, for a maximum period until a legally binding decision is reached on the objection of January 29, 2025, against the cessation of benefits from December 2024 or the corresponding application for benefits.
The respondent must reimburse the applicant's 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 benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) for the period from the end of January 2025, or the legality of an exclusion from benefits under Section 1 Paragraph 4 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) in a so-called Dublin III case.
The applicant, born in 1996, is an Afghan national. He travelled from Istanbul to Germany by plane on April 18, 2024, and presented a valid Afghan passport and a Polish Schengen visa at Hamburg Airport, whereupon he was granted entry into Germany. After submitting an asylum application on May 14, 2024, he was assigned to the municipality of Harsefeld, located within the district of the respondent, effective July 4, 2024, and required to establish his habitual residence within the district (decision of the State Reception Authority – LAB – of Lower Saxony dated June 20, 2024). There, in accordance with the conditions stipulated in the residence permit issued by the respondent, he took up residence in the refugee and homeless shelter at [address redacted] in Harsefeld. The respondent directly covered the associated expenses.
The Federal Office for Migration and Refugees (BAMF) rejected the applicant's asylum application in Germany as inadmissible and ordered his deportation to Poland (decision of August 16, 2024). By letter dated September 10, 2024, informing the respondent that the deadline for transfer was December 13, 2024, the BAMF notified him of the transfer modalities under the Dublin Regulation, following the approval of the applicant's return to Poland by letter dated June 13, 2024. The BAMF also revoked the applicant's residence permit and issued him a certificate of initiation of a transfer on September 26, 2024. The transfer, initially scheduled for November 12, 2024, and subsequently postponed to November 19, 2024, failed. According to the LAB's enforcement report, the applicant was not found at the accommodation on November 19, 2024. Personal belongings were found in the room. According to a person at the accommodation, the applicant had been staying elsewhere since November 18, 2024. On the morning of November 19, 2024, the applicant informed the respondent by email that he was unable to attend an interview scheduled for that same day due to illness and requested a new appointment.
A further transfer attempt on December 9, 2024, also failed because, according to the enforcement report of the same day, the applicant was again not found at the accommodation. No personal belongings were found in the room. Conflicting statements regarding the applicant's presence were received from people at the accommodation (ranging from "last seen on December 8, 2024" to "haven't been there for 3-6 months"). Upon inquiry by the respondent, the refugee accommodation stated on December 11, 2024, that the applicant was still residing there. This information was also provided via email on January 15 and March 21, 2025. Following the unsuccessful deportation attempts, the Federal Office for Migration and Refugees (BAMF) informed the respondent that the transfer deadline would (now) end on December 13, 2025 (message dated January 3, 2025).
The applicant received basic benefits from the respondent pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG), most recently granted for October (respondent's decision of October 14, 2024) and November 2024 (decision of November 5, 2024) in the amount of €460.00 per month. Before Section 1a Paragraph 7 of the AsylbLG (old version) expired on October 31, 2024, the respondent imposed a corresponding restriction on entitlement for November 2024 to April 2025 (decision of October 14, 2024). Benefits were effectively discontinued from December 2024 onwards. The applicant is only permitted to continue using the accommodation. On December 23, 2024, he received food and hygiene product vouchers and a train ticket to Poland worth up to €100.00 and up to €46.27 respectively from the respondent.
On January 29, 2025, the applicant filed an objection with the respondent "against the granting of benefits under the Asylum Seekers' Benefits Act (AsylbLG) for the period from December 1, 2024" (by letter from his attorney dated January 22, 2025) and simultaneously filed an application for a preliminary injunction with the Social Court (SG) Stade, claiming benefits under the AsylbLG in a constitutionally and legally compliant amount from the date of receipt of the preliminary injunction until a legally binding decision is reached on his objection to the de facto granting or denial of benefits. He stated that he has not received any benefits since December 2024. Even the supermarket vouchers were not accepted. His constitutionally guaranteed minimum subsistence level is currently no longer secure. The de facto cessation of benefits pursuant to Section 1 Paragraph 4 of the AsylbLG, as a general exclusion from benefits, raises constitutional concerns. In legal practice, a teleological reduction is considered necessary for constitutional reasons (Schleswig-Holstein Higher Social Court, decision of June 15, 2020 – L 9 AY 78/20 B ER). The applicant has been continuously present in the accommodation, which is also documented in the respondent's administrative file. He cannot be accused of any individual breach of duty. Considerations of migration policy cannot justify a reduction in benefits (Hessian Higher Social Court, decision of March 31, 2020 – L 4 AY 4/20 B ER). The exclusion from benefits is also disproportionate because the reduction in benefits does not guarantee the minimum subsistence level. Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) raises concerns under European law. Furthermore, Poland has since decided not to allow any persons from the Dublin Area to return.
The respondent replied that the applicant had repeatedly not been found at the given address. After the vouchers were issued, the applicant had not contacted the respondent again. It was questionable how the applicant had supported himself since January 2025.
The Social Court rejected the application for a preliminary injunction because the applicant had failed to demonstrate grounds for such an injunction. It was unclear how he had supported himself during the past few months. A court decision was deemed unnecessary because the applicant possessed a Schengen visa for Poland, enabling him to easily comply with his obligation to leave the country. Furthermore, the claim that Poland no longer accepts Dublin returnees was not verified. No grounds for hardship were apparent. Therefore, the question of the applicant's entitlement to an injunction was no longer relevant, although it was noted that the requirements of Section 1 Paragraph 4 Sentence 1 No. 2 of the Asylum Seekers' Benefits Act (AsylbLG) were met (decision of April 14, 2025).
The applicant appeals this decision on April 22, 2025. He argues that withholding subsistence benefits on the grounds that he could leave voluntarily, which he cannot do independently under the Dublin Regulation, is incompatible with human dignity. The BAMF's decision of August 16, 2024, also lacks the necessary finding that departure is factually and legally possible, a requirement stipulated by Section 1 Paragraph 4 Sentence 1 No. 2 of the Asylum Seekers' Benefits Act (Social Court Trier, decision of February 24, 2025 – S 3 AY 11/25 B ER). To substantiate his financial hardship, the applicant submitted a "confirmation of debt regarding financial support" from two of his roommates to the court file. He maintains he has never gone into hiding. Even though he was not found in his room during the deportation attempts, he is not required to remain there at all times, especially since there is no nighttime order. There is no targeted withdrawal of the right to transfer the child, which is necessary for extending the transfer period in accordance with Article 29(2), second sentence, alternative 2 of the Dublin III Regulation (referring to the Bavarian Administrative Court of Appeal, judgment of 21 May 2025 – 19 B 24.1772).
The applicant, through his lawyer, contacted the Federal Office for Migration and Refugees (BAMF) on May 8, 2025, requesting a substantive review of his asylum application in the national procedure, arguing that the transfer deadline under Article 29(2), first sentence, of the Dublin III Regulation had expired. He maintained that an extension of the deadline was inadmissible because he had not evaded transfer. During the first transfer attempt, he had spent the night of November 18-19, 2024, with an acquaintance in Stade due to health reasons and the unhygienic conditions at his accommodation. He was unable to attend his appointment with the respondent on the morning of November 19, 2024, due to health problems. In December 2024, he suffered from anxiety due to the uncertainty surrounding the Dublin procedure. To relieve his anxiety, he played football with friends on the evening of December 8, 2024. As the game lasted longer than expected, he was unable to return to his accommodation that evening. His personal belongings were in the accommodation, which was confirmed by a roommate of the applicant in a letter dated 8 April 2025.
The respondent argues that the transfer deadline runs until December 31, 2025, because the applicant was in hiding (until March 2025). Coordination with the Federal Office for Migration and Refugees (BAMF) regarding voluntary departure is unnecessary due to the applicant's lack of willingness to leave. A determination by the BAMF regarding the legal and factual possibility of departure pursuant to Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) is not an end in itself, but can also be achieved through other determinations – as was done in the first instance. Furthermore, the legislator presupposes that BAMF decisions imply the feasibility of the transfer (Section 34a Paragraph 1 of the Asylum Act (AsylG)). In any case, the BAMF's decision of August 16, 2024, was issued before the amendment to Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) on October 31, 2024. It is questioned whether the applicant's two roommates could have adequately understood the content of the declaration, written in German, submitted to substantiate his financial circumstances. The declaration is also deemed inconclusive because, given its appraised value, the loan cannot be repaid, and a sum of €300.00 for living expenses over five months is implausible. The roommate's confirmation dated April 8, 2025, is also considered unreliable. Furthermore, the necessary sworn affidavits are lacking.
Subsequently, the applicant submitted his own affidavit dated May 13, 2025, as well as two affidavits of the same date from his roommates xxx, xxx and xxx to the file.
For further details of the facts and the legal arguments, reference is made to the contents of the attached benefit and immigration files.
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. 1 and 3 no. 1 in conjunction with §§ 143, 144 para. 1 sentence 1 no. 1 SGG), is well-founded. The Social Court wrongly rejected the application for interim relief.
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 (see, for example, Federal Constitutional Court, decision of May 12, 2005 – 1 BvR 569/05 – juris), decisions in preliminary injunction proceedings for actions for annulment and – as in this case – for enforcement 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, 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. However, such a conclusive examination is only permissible if a complete clarification of the facts and the law is possible in the preliminary injunction proceedings; otherwise, a decision must be made based on a balancing of interests. If this legal examination raises a question of EU law that is decisive for the decision and which, in the main proceedings, would likely require a referral to the CJEU by the court of last instance, then Article 19(4), first sentence, of the German Basic Law (GG) requires that this be taken into account when assessing the prospects of success in the preliminary injunction proceedings. In any case, the obvious legality of the administrative act will regularly not be affirmed – regardless of the deciding court's own, necessarily only preliminary, legal assessment (see above, Federal Constitutional Court, decision of 13 August 2024 – 2 BvR 44/24 – juris Rn. 14-18).
Based on these criteria, the respondent is to be ordered by way of preliminary injunction to grant the applicant provisional subsistence benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG). In this context, it is unnecessary to determine whether the applicant is already entitled to restricted benefits pursuant to Section 1a of the AsylbLG at least until April 2025 due to the (final and binding) decision of October 14, 2024. In the underlying main proceedings, in which the applicant, based on his objection of January 29, 2025, "against the granting of benefits under the Asylum Seekers' Benefits Act (AsylbLG) for the period from December 1, 2024," has at least also applied for the granting of ongoing benefits in accordance with the most-favored-nation principle, which also applies in asylum seekers' benefits law (cf. Federal Social Court, judgment of June 24, 2021 – B 7 AY 3/20 R – juris para. 11), the decision on this objection or benefit application will likely raise difficult and highly controversial legal questions regarding the interpretation of Section 1 Paragraph 4 Sentence 1 No. 2 AsylbLG and the compatibility of an exclusion from benefits across the subsistence security systems in Germany with constitutional and EU law. If the existence of an exclusion of benefits is confirmed as a matter of fact and the administrative procedure is followed by judicial proceedings, a referral to the ECJ regarding the compatibility of an exclusion of benefits with Union law should be seriously considered (more on this later).
According to Section 1 Paragraph 4 Sentence 1 Number 2 of the Asylum Seekers' Benefits Act (AsylbLG), persons entitled to benefits under Section 1 Paragraph 1 Number 5 of the AsylbLG whose asylum application has been rejected as inadmissible by a decision of the Federal Office for Migration and Refugees (BAMF) pursuant to Section 29 Paragraph 1 Number 1 in conjunction with Section 31 Paragraph 6 of the Asylum Act (AsylG), for whom deportation has been ordered pursuant to Section 34a Paragraph 1 Sentence 1 Alternative 2 of the Asylum Act (AsylG), and for whom, according to the BAMF's determination, departure is legally and factually possible, even if the decision is not yet final, are not entitled to benefits under this Act. Based on the required examination of the facts and the law within the framework of preliminary legal protection proceedings, these conditions are not met.
Since the rejection of his asylum application in Germany, the applicant is subject to an enforceable obligation to leave the country and is therefore entitled to benefits pursuant to Section 1 Paragraph 1 Number 5 of the Asylum Seekers' Benefits Act (AsylbLG). Furthermore, the Federal Office for Migration and Refugees (BAMF) rejected the asylum application as inadmissible pursuant to Section 29 Paragraph 1 Number 1 in conjunction with Section 31 Paragraph 6 of the Asylum Act (AsylG) (so-called Dublin III cases) and issued a deportation order pursuant to Section 34a Paragraph 1 Sentence 1 Alternative 2 of the Asylum Act (AsylG). These asylum decisions are binding under Section 1 Paragraph 4 Sentence 1 No. 2 of the Asylum Seekers' Benefits Act (AsylbLG), without being subject to review for their legality under benefit law (so-called binding effect; cf. Federal Social Court (BSG), Judgment of July 25, 2024 – B 8 AY 7/23 R – juris Rn. 18, 22, 25; Frerichs in jurisPK-SGB XII, 4th ed. 2024, Section 1 AsylbLG Rn. 206.4). However, this does not apply to the further requirement that, according to the Federal Office for Migration and Refugees, the person affected by the exclusion from benefits must be able to leave the country "legally and factually, according to the determination of the Federal Office for Migration and Refugees". In legal practice and literature, the meaning of this element of the offense, which was only included in the law following a recommendation and report by the Committee on Internal Affairs and Community (4th Committee; BT-Drs. 20/13413), remains largely unclear (see, for example, Hamburg Social Court, decision of April 11, 2025 – S 28 AY 188/25 ER – juris para. 38 et seq.; Heuser in BeckOK Ausländerrecht, 44th edition, as of April 1, 2025, § 1 AsylbLG para. 48, 49; Frerichs in jurisPK-SGB XII, 4th edition 2024, § 1 AsylbLG para. 206.7 et seq.). Since the legal term "departure" generally encompasses both voluntary departure and compulsory deportation (see, for example, BVerwG, judgment of 10 November 2009 – 1 C 19/08 – juris Rn. 12 on § 25 para. 5 AufenthG), different interpretations are conceivable.
On the one hand, this could refer to a review under social security law concerning the existence of purely factual and legal obstacles to deportation, in particular whether there are serious and fact-based grounds to fear that the asylum procedure or the reception conditions for asylum seekers in the state responsible under the Dublin III Regulation have systemic deficiencies that imply inhuman or degrading treatment of the asylum seekers transferred to that state within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union (CFR) (see, for example, ECJ, Judgment of 21 December 2011 – C-411/10, C-493/10 – juris). This interpretation is supported by the legal usage of the word "departure" and the addition in Section 1 Paragraph 4 Sentence 2 No. 2 of the Asylum Seekers' Benefits Act (AsylbLG) that departure must be legally and factually possible "according to the determination of the Federal Office for Migration and Refugees". The legislative materials, specifically the explanatory memorandum to the aforementioned recommendation of the Committee on Internal Affairs and Community, state that the amendment to the draft law (Bundestag printed paper 20/12805) is clarifying in nature and that the BAMF's decision on inadmissibility already establishes the factual and legal possibility "that is decisive within the framework of this regulation," particularly with regard to a threatened violation of Article 3 of the European Convention on Human Rights (ECHR) or Article 4 of the Charter of Fundamental Rights of the European Union in the other Member State (see Bundestag printed paper 20/13413, p. 53). However, such a review under the law governing benefits would generally be irrelevant, as it would be based on the BAMF's asylum decision and thus would not typically lead to a different result.
On the other hand, the requirement of legally and factually possible departure, as determined by the Federal Office for Migration and Refugees (BAMF), could refer, at least in part—that is, not as an alternative to possible deportation, but cumulatively—to the voluntary departure of the person entitled to benefits to the state responsible for the asylum procedure itself. This interpretation is preferable. This is supported, for example, by the colloquial use of the word "departure," which is most readily associated with the self-determined leaving of a state's territory. Notwithstanding this rather weak argument based on the wording, the requirement of possible voluntary departure is even addressed in the aforementioned recommendation for a resolution, which states that self-initiated departure is generally possible within two weeks of the BAMF's inadmissibility decision, provided that the transfer is guaranteed. For this purpose, the foreigner is issued a laissez-passer (Bundestag printed matter 20/13413, p. 53). These restrictions on the (alleged) standard case of possible voluntary departure in the Dublin III procedure (more on this shortly) and the guarantee of transfer make it clear that when affirming an exclusion from benefits pursuant to Section 1 Paragraph 4 Sentence 1 No. 2 AsylbLG, the possible voluntary departure must also and especially be taken into consideration. In any case, a constitutionally compliant interpretation of the provision to safeguard the fundamental right to a dignified minimum standard of living under Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1 of the Basic Law (GG) supports this (regarding the requirements of such an interpretation, see, for example, the Federal Constitutional Court (BVerfG), judgment of July 23, 2014 – 1 BvL 10/12, 1 BvL 12/12, 1 BvR 1691/13 – juris para. 116, 125, 132; Federal Social Court (BSG), judgment of September 12, 2018 – B 4 AS 33/17 R – juris para. 40; Federal Social Court (BSG), judgment of May 8, 2019 – B 14 AS 13/18 R – juris para. 22 et seq.; see also the Senate judgment of September 26, 2019 – L 8 AY). 70/15 – juris para. 35 and the referral decision of the Senate of 26 January 2021 – L 8 AY 21/19 – juris para. 41). According to established case law, a system-wide exclusion from subsistence benefits can only be justified if claiming social benefits in the country of origin – in the case of so-called Dublin III cases, this means in the state responsible for conducting the asylum procedure – is a reasonable expression of self-reliance (so-called subsidiary nature of the German social welfare system; see Federal Social Court [BSG], judgment of March 29, 2022 – B 4 AS 2/21 R – juris para. 34 ff., 38; see also Federal Constitutional Court [BVerfG], decision of October 8, 2024 – 1 BvR 2006/24 – juris para. 13; contra Federal Administrative Court [BVerwG], decision of October 20, 1988 – 5 B 48/88 – juris para. 2; regarding Section 1 para. 4 sentence 1 no. 2 Asylum Seekers' Benefits Act [AsylbLG], see...). Social Court Karlsruhe, Decision of 25 February 2025 – S 12 AY 379/22 ER – juris para. 25 et seq.; Social Court Hamburg, Decision of 11 April 2025 – S 28 AY 188/25 ER – juris para. 40; Wittmann, Committee Document 20(4)493 A new, pp. 77 et seq.; Lincoln, Committee Document 20(4)493 G, pp. 5 et seq.; Statement by Pro Asyl, Committee Document 20(4)493; Statement by Diakonie Germany, Committee Document 20(4)499, pp. 3 et seq.; Priebe/Sade, ZAR 2025, 11, 22 et seq.; Dinter, ZAR 2024, 373, 376; Heuser in BeckOK Ausländerrecht, 44th edition, as of April 1, 2025, § 1 AsylbLG para. 42, 55; Frerichs in jurisPK-SGB XII, 4th edition 2024, § 1 AsylbLG para. 54 ff., 206.7; Electronic letter from the Ministry for Family, Women, Culture and Integration of the State of Rhineland-Palatinate dated December 5, 2024, file number: 3314-0012#2024/0021 – available at https://mffki.rlp.de; generally critical of system-wide exclusions from subsistence-level benefits: Hessian State Social Court, decision of October 31, 2022 – L 4 SO 133/22 B ER – juris para. 19 ff.; Schreiber, SR 2018, 181 ff.; Siefert in jurisPK-SGB XII, 4th ed. 2024, § 23 para. 130 with further references; Frerichs, loc. cit.).
Since the BAMF, within the framework of the asylum decision on the asylum application pursuant to Section 29 Paragraph 1 No. 1 in conjunction with Section 31 Paragraph 6 of the Asylum Act or the deportation order pursuant to Section 34a Paragraph 1 Sentence 1 Alternative 2 of the Asylum Act, does not make a determination about this possibility of departure, but only about the existence of obstacles to deportation, the addition "after the determination" by the BAMF refers either solely to a corresponding review under social security law of existing obstacles to deportation (so) and not to the additionally necessary review of the possible voluntary departure. Or the addendum concerns the BAMF's determination regarding transfer by way of self-initiated departure in accordance with the relevant administrative regulations, the BAMF's Dublin Service Instruction, pp. 163 ff. (available at https://www.proasyl.de/wp-content/uploads/2023-06-12-BAMF-Dienstanweisung-Dublin.pdf; see also Hamburg Social Court, decision of April 11, 2025 – S 28 AY 188/25 ER – juris para. 38 ff.; Heuser in BeckOK Ausländerrecht, 44th edition, as of April 1, 2025, § 1 AsylbLG para. 48, 49; Frerichs in jurisPK-SGB XII, 4th edition 2024, § 1 AsylbLG para. 206.8). The specific possibility of departure is only determined after the transfer process has been organized in cooperation between the Federal Office for Migration and Refugees (BAMF), the immigration authorities or the Federal Police, and the responsible member state. This includes, among other things, coordinating the possibility of voluntary transfer, reviewing a proposed date from the immigration authorities, notifying the member state, sending a laissez-passer to the immigration authorities for distribution to the applicant, and organizing the departure. Due to this procedure, voluntary transfer is generally no longer possible four weeks before the transfer deadline. At that point, only a controlled transfer can take place. There is no legal entitlement to voluntary departure. The BAMF only supports voluntary departures under the Dublin III Regulation in exceptional cases (see the Dublin Service Instructions, ibid.). The transfer procedure is thus unfamiliar with the regular institution of voluntary departure, and the transfer always takes place within the framework of an officially supervised procedure, even if initiated by the person concerned (see Federal Administrative Court, judgment of 17 August 2021 – 1 C 26.20 – juris para. 22 with further references; Wittmann, Committee Document 20(4)493 A new, p. 81; Lincoln, Committee Document 20(4)493 G, p. 3 with further references).
Applied to the present case, the Federal Office for Migration and Refugees (BAMF) has failed to make a finding regarding the applicant's transfer through voluntary departure. Such a transfer has not actually been prepared. Therefore, for legal reasons, the applicant is currently unable or not permitted to voluntarily depart for Poland, meaning that the exclusion from benefits under Section 1 Paragraph 4 Sentence 1 Number 2 of the Asylum Seekers' Benefits Act (AsylbLG) is not even substantiated. On this basis, the applicant has credibly demonstrated a claim for an order granting basic benefits under Sections 3 and 3a of the AsylbLG. Furthermore, the issuance of a preliminary injunction is supported by the fact that the interpretive issues surrounding Section 1 Paragraph 4 Sentence 1 Number 2 of the AsylbLG have not yet been clarified by the courts or in legal literature, and by a balancing of interests to be carried out in expedited court proceedings in favor of the applicant, which gives particular consideration to his fundamental rights. It is about guaranteeing a dignified minimum standard of living (Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1 of the Basic Law).
If the conditions for an exclusion from benefits under Section 1 Paragraph 4 Sentence 1 No. 2 of the Asylum Seekers' Benefits Act (AsylbLG) are met, such a balancing of interests may also be necessary because the question of the compatibility of the regulation with both the previous Reception Directive (EU Directive 2013/32) and its revised version of 14 May 2024 (EU Directive 2024/1346), in particular with the minimum standards for securing subsistence in asylum proceedings regulated therein, will arise (cf. regarding an exclusion from benefits during the Dublin procedure under French law, ECJ, Judgment of 27 September 2012 – C-179/11 – juris para. 39 et seq., 58; regarding the question of the conformity of Section 1 Paragraph 4 Sentence 1 No. 2 AsylbLG with EU law, in particular Wittmann, Committee Document. 20(4)493 A new, p. 74 ff.; Hruschka, VerfBlog, 2024/11/04, https://verfassungsblog.de/auf-konfrontationskurs-mit-dem-eugh/, DOI: 10.59704/e725dc5484612c2c; regarding the predecessor provision of § 1a para. 7 AsylbLG aF see also BSG, referral decision to the ECJ of 25.7.2024 – B 8 AY 6/23 R – juris) and a referral to the ECJ is seriously being considered.
The applicant has credibly demonstrated the particular urgency of the matter (grounds for the order) by submitting sworn affidavits from himself and third parties (fellow residents). The Senate has no serious doubts about his extremely precarious financial situation. He is unable to secure his livelihood through his own means.
The order, which is at the court's discretion to achieve its purpose (see Section 86b Paragraph 2 of the Social Court Act in conjunction with Section 938 Paragraph 1 of the Code of Civil Procedure), provides for the provisional granting of benefits until a legally binding decision is reached on the applicant's objection of January 29, 2025, against the termination of benefits as of December 2024, or the corresponding application for benefits. To avoid unduly burdening the respondent, it is further limited in time to a maximum of the end of September 2025. Within this period, the administrative proceedings should be concluded, and the currently disputed question of whether the transfer deadline under the Dublin III Regulation is still running due to an extension by the Federal Office for Migration and Refugees (BAMF) should be resolved.
The decision on costs is based on § 193 SGG.
The applicant's 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 1 August 2017 – 1 BvR 1910/12 – juris para. 20).
This decision is final and cannot be appealed, § 177 SGG.
