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,
Lilienthalstraße 2, 35394 Gießen,
Respondent,
The 30th Chamber of the Social Court of Gießen decided on July 8, 2025, through the presiding judge, Judge xxx of the Social Court:
The respondent is ordered by way of preliminary injunction to grant the applicant benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) to the extent permitted by law from the date of receipt of the application in the preliminary legal protection proceedings until a legally binding decision is reached on the applicant's application of May 2, 2025, for review of the respondent's decision of March 17, 2025, but at the latest until the applicant's departure from the Federal Republic of Germany.
The respondent must reimburse the applicant for the necessary extrajudicial costs of the proceedings.
The applicant is granted legal aid for the first-instance application proceedings, with the appointment of attorney Sven Adam, Lange-Geismar-Straße 55, 37073 Göttingen. The appointment is subject to the same conditions as for an attorney established within the district of the court hearing the case.
REASONS
I.
The applicant was born on [date] 2006 in [location]/Afghanistan, is an Afghan national, of the Tajik ethnic group, and of the Sunni faith. He entered the Federal Republic of Germany on December 23, 2024, and submitted a request for asylum, which the Federal Office for Migration and Refugees (BAMF) received written notification of on January 2, 2025. The applicant submitted a formal asylum application on January 6, 2025.
By decision dated 16 January 2025, the respondent granted the applicant benefits in accordance with Section 3 in conjunction with Section 3a of the Asylum Seekers' Benefits Act (AsylbLG).
By decision dated 22 January 2025, the Federal Office for Migration and Refugees (BAMF) rejected the asylum application as inadmissible pursuant to Section 29 Paragraph 1 No. 1 of the Asylum Act (AsylG) and ordered the deportation to Slovenia.
By letter dated March 4, 2025, the respondent notified the applicant of a planned cessation of benefits pursuant to Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG). A statement was submitted on March 14, 2025.
By notice of termination dated March 17, 2025, received on March 21, 2025, the respondent revoked the grant notice of January 16, 2025 with immediate effect pursuant to Section 9 Paragraph 4 No. 1 AsylbLG in conjunction with Section 45 SGB X and informed the applicant that he would no longer receive any benefits pursuant to Section 1 Paragraph 4 AsylbLG, except for bridging benefits for a maximum period of two weeks until April 3, 2025.
The applicant, represented by his legal representative, filed an objection to this decision on May 2, 2025.
The applicant, represented by his legal counsel, filed an application for preliminary legal protection on May 4, 2025. The legal counsel states that the applicant continues to receive food and accommodation in kind from the respondent. He remains in the communal accommodation. He continues to receive no cash benefits.
The applicant's legal representative requests that
the respondent be ordered, by way of preliminary injunction, to grant the applicant the requested benefits in the statutory amount from May 4, 2025, onwards, provisionally and subject to the right of recovery, until a final and binding decision is reached on the applicant's application of May 2, 2025, for review of the respondent's decision of March 17, 2025, taking into account the legal opinion of the court.
The respondent requests that
the application be rejected.
For further details, please refer to the contents of the performance file.
II.
The application for an interim injunction pursuant to Section 86b Paragraph 2 of the Social Courts Act (SGG) is admissible and well-founded.
The applicant's objection of 02.05.2025 against the respondent's decision of 17.03.2025 is therefore time-barred, so that the order for suspensive effect is not possible.
Pursuant to Section 86b, Paragraph 2, Sentence 1 of the Social Court Act (SGG), the court of first instance may, upon application, issue a preliminary injunction concerning the subject matter of the dispute if there is a risk that a change in the existing state of affairs could frustrate or significantly impede the realization of a right of the applicant (so-called protective injunction). According to Sentence 2, preliminary injunctions are also permissible to regulate a provisional state of affairs with regard to a disputed legal relationship if such regulation appears necessary to avert substantial disadvantages (regulatory injunction). In the present case, the issuance of a regulatory injunction is sought.
Both the claim for an injunction and the grounds for the injunction must be substantiated (§ 86b paragraph 2 sentence 4 of the Social Court Act (SGG) in conjunction with § 920 of the Code of Civil Procedure (ZPO)). The grounds for the injunction and the claim for an injunction are interrelated insofar as the requirements for the prospects of success in the main proceedings (the claim for an injunction) decrease with increasing urgency and severity of the threatened harm (the grounds for the injunction), and vice versa. If the action in the main proceedings is manifestly inadmissible or unfounded, the application for a preliminary injunction must generally be rejected regardless of the grounds for the injunction, because no right worthy of protection exists. If, on the other hand, the action in the main proceedings is manifestly well-founded, the requirements for the grounds for the injunction are reduced. As a rule, the application for a preliminary injunction should therefore be granted.
The judge's conviction regarding the factual prerequisites of the claim for an injunction and the grounds for the injunction requires only a preponderance of probability (see Social Court Dresden, decision of September 11, 2006 – S 34 AS 1334/06 ER, juris, para. 20; Meyer-Ladewig/Keller/Leitherer, SGG, Commentary, 13th edition, 2020, § 86b para. 41). In principle, due to the preliminary nature of the injunction, the final decision on the merits should not be anticipated (Burkiczak in: Schlegel/Voelzke, jurisPK-SGG, 2nd edition, § 86b SGG (as of September 16, 2024), para. 426). The legal situation is examined on the basis of a summary examination of the underlying facts (Burkiczak in: Schlegel/Voelzke, jurisPK-SGG, 2nd ed., § 86b SGG (as of 16.09.2024), para. 64 with further references).
If, without the granting of preliminary legal protection, serious and unreasonable impairments could arise that cannot be averted in any other way and that cannot be remedied by the main proceedings, the courts are obligated (pursuant to Article 19 Paragraph 4 of the Basic Law) to examine the factual and legal situation not only summarily, but conclusively, if they wish to base their decision on the prospects of success in the main proceedings; if a conclusive examination is not possible, a balancing of interests must be carried out (Hessian State Social Court, decision of October 12, 2018 – L 9 AS 462/18 B ER, juris, para. 22; Federal Constitutional Court [Chamber], decision of July 27, 2016 – 1 BvR 1241/16, juris, para. 11).
The application of these principles results in the respondent being provisionally obligated, from the date of application for interim legal protection, to grant benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) to the extent permitted by law until a decision is reached on the review application, but at the latest until the applicant leaves the Federal Republic of Germany.
In the present case, the applicant has credibly demonstrated both a claim to an injunction and grounds for such an injunction. There is no legitimate public interest in the enforcement of the contested administrative act. The order contained therein is likely manifestly unlawful and violates the applicant's subjective rights. The revocation of the previous benefit award is unlawful, as it presumably violates European and constitutional law.
Although the objection was filed late and the dismissal notice has become legally binding, there is generally no right to an order for a request that has already been rejected by a legally binding administrative act. Due to the legal force of the decision, it is established (§ 77 SGG) that the respondent is not obligated to grant the applicant the requested benefits.
The only exception is if a review procedure under Section 44 of the German Social Code, Book X (SGB X) is pending with regard to the legally binding decision and the conditions for a revocation of the decision under Section 44 SGB X are undoubtedly met, i.e., the decision is obviously unlawful (Burkiczak in: Schlegel/Voelzke, jurisPK-SGG, 2nd ed., Section 86b SGG (as of May 22, 2025), para. 397).
This is the case here. The objection must be considered a request for review. Furthermore, the dismissal notice is clearly unlawful, as it is likely to violate both constitutional and European law.
The unconstitutionality of the regulation would, in a main proceeding, require the court to obtain a ruling from the Federal Constitutional Court (BVerfG) pursuant to Article 100 Paragraph 1 of the Basic Law. While the BVerfG's monopoly on declaring laws unconstitutional means that a court may only draw conclusions from its finding of unconstitutionality in the main proceeding after the BVerfG has established this finding, Article 100 Paragraph 1 of the Basic Law does not prevent lower courts from granting preliminary legal protection based on their legal opinion even before the BVerfG's decision in the main proceeding, provided that this appears necessary in the interest of effective legal protection under the circumstances of the case and does not prejudge the main proceeding (BVerfG, Decision of June 24, 1992 – 1 BvR 1028/91 –, para. 29). According to the legal opinion of the adjudicating court, Section 1 Paragraph 4 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) is probably both contrary to European law and unconstitutional and should therefore remain unapplied.
According to higher court rulings, applicants for international protection – and thus also rejected Dublin cases – are subject to the provisions of the EU Reception Directive (ECJ, Judgment of 27 September 2012 – C-179/11, BSG, Order for Suspension and Referral of 25 July 2024 – B 8 AY 6/23 – para. 17). In its aforementioned decision of 25 July 2024, the German Federal Social Court (BSG) referred the question to the European Court of Justice (ECJ) as to whether a regulation of a Member State which grants applicants for international protection, depending on their status as persons subject to enforceable deportation, within the transfer period under Regulation (EU) No 604/2013, exclusively an entitlement to accommodation, food, personal and health care and treatment in case of illness, as well as, depending on the circumstances of the individual case, clothing and household goods, covers the minimum level described in Article 17(2) and (5) of Directive 2013/33/EU.
A national regulation that – like Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) in its former version – only provides for bridging benefits for two weeks is therefore likely also insufficient to meet European legal requirements. Furthermore, the exclusion of bridging benefits in the form of cash payments under Section 1 Paragraph 4 Sentence 5 Clause 2 of the AsylbLG violates Article 2(g) of Directive 2013/33/EC, which stipulates that, in addition to accommodation, food, and clothing, cash payments must be provided as material benefits to cover daily needs during the reception process. According to the case law of the European Court of Justice (ECJ), German authorities and courts are obligated under European law to disapply any regulation that violates European law in order to ensure the continued effective application of EU law. A national court must ensure the full effectiveness of EU law and, if necessary, disapply any conflicting provision of national law on its own authority (see ECJ, Case 106/77, Judgment of 9 March 1978, ECJ Simmenthal II).
The applicant has credibly demonstrated that the decision of March 17, 2025, will likely prove to be clearly unlawful. He has presented compelling reasons that argue against the legality of this decision.
In the opinion of the court, Section 1 Paragraph 4 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) violates the European legal provisions on minimum standards of care during asylum proceedings from Articles 17 to 20 of the Reception Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 (Directive 2013/33/EU), because Article 20 Paragraph 5 Sentence 1 of Directive 2013/33/EU expressly requires that decisions on the restriction or withdrawal of benefits granted in the context of reception (Article 2(g) of Directive 2013/33/EU) must be made taking into account the principle of proportionality. According to the ruling of the Federal Constitutional Court of July 18, 2012 (1 BvL 10/10, 1 BvL 2/11 – juris), considerations of migration policy aimed at keeping benefits for asylum seekers and refugees low in order to avoid incentives for migration through a potentially higher level of benefits compared internationally cannot, in principle, justify lowering the standard of benefits below the physical and socio-cultural minimum subsistence level. The human dignity guaranteed in Article 1 Paragraph 1 of the Basic Law (GG) cannot be relativized for migration policy reasons (cf. Federal Constitutional Court, July 18, 2012 – 1 BvL 10/10, 1 BvL 2/11 – juris).
While it is true that the BAMF deemed the asylum application inadmissible and threatened to deport the applicant to the Member State responsible for the asylum procedure – here: Slovenia – the actual implementation requires at least some actual action by the immigration authorities in the form of a legally binding deportation order from the BAMF.
Section 1, paragraph 4, sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) is also likely to violate the fundamental right to a dignified minimum standard of living under Article 1, paragraph 1 of the Basic Law (GG) in conjunction with Article 20, paragraph 1 of the Basic Law (GG). Section 1, paragraph 4, sentence 1 of the AsylbLG constitutes a complete exclusion from benefits, intended to discourage entry and motivate departure from Germany by withholding a material basis for subsistence. As such, the exclusion from benefits is all the more unconstitutional.
Even less severe measures, such as mere reductions in benefits, may not be justified on migration policy grounds, while respecting fundamental rights (Frerichs in: Schlegel/Voelzke, jurisPK-SGB XII, 4th ed., § 1 AsylbLG (as of December 23, 2024), para. 55), because a complete exclusion of benefits for persons who are actually still residing in Germany is incompatible with the temporary scope of the fundamental right under Article 1 Paragraph 1 of the Basic Law in conjunction with Article 20 Paragraph 1 of the Basic Law. According to the so-called principle of immediacy (or "principle of currentity"), a life of human dignity, including the socio-cultural minimum, must be guaranteed from the beginning of residence in the Federal Republic of Germany until its end. Even a short stay or prospect of remaining does not justify limiting the right to a dignified minimum standard of living to securing physical existence (Frerichs in: Schlegel/Voelzke, jurisPK-SGB XII, 4th ed., § 1 AsylbLG (as of 23.12.2024), para. 54 ff.). Ensuring basic needs/the minimum standard of living is a human right that must be realized where the person actually resides.
A departure of a person that may be politically desirable but can only be legally realized through further steps by another authority cannot be "forced" under the rule of law by denying the person the minimum subsistence level, but must be carried out in accordance with the law by the immigration authorities, e.g. through deportation proceedings.
The claim for an injunction has therefore been sufficiently substantiated. Furthermore, grounds for an injunction exist. In the present case, the application for interim relief must therefore be granted.
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. According to Section 115 of the Code of Civil Procedure, the party must use 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.
The decision on costs follows from the corresponding application of Section 193 of the Social Court Act (SGG).
The following is information on legal remedies.
