DECISION
L 8 AY 22/25 B ER
S 20 AY 4/25 ER Social Court Braunschweig
In the appeal proceedings
1. xxx,
2. xxx,
– Applicant and complainant –
Legal representative:
for 1-2: Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
Gifhorn District Social Services Department, District Office II,
Schlossplatz 1, 38518 Gifhorn
– Respondent and Appellant –
The 8th Senate of the Lower Saxony-Bremen State Social Court decided on July 2, 2025 in Celle through the rapporteur, Judge xxx of the State Social Court:
The respondent must reimburse the applicants' extrajudicial costs for both instances of the proceedings.
REASONS
Based on the applicants' declaration of settlement submitted by their legal representative on June 11, 2025, the court decides on the costs by way of a ruling pursuant to Section 193 Paragraph 1 Sentence 3 of the Social Courts Act (SGG) by analogy to their simultaneous application, following the conclusion of the proceedings by the reporting judge (Section 155 Paragraph 2 Sentence 1 No. 5, Paragraph 4 SGG). Since the declaration of settlement by the applicants' legal representative on June 11, 2025, relates to the preliminary injunction proceedings as a whole and not only to the appeal instance, a decision must be made regarding the extrajudicial costs of the entire proceedings.
The decision on costs is at the court's discretion and must take into account the current state of the case and the legal arguments, in particular the prospects of success, the reasons for pursuing the legal action, and the resolution of the proceedings (see in detail B. Schmidt in Meyer-Ladewig/Keller/Schmidt, SGG, 14th ed. 2023, § 193 para. 13 et seq. with further references). As a rule, the likely outcome of the proceedings determines the decision on costs.
According to these guidelines, it is equitable for the respondent to fully reimburse the applicants for their necessary expenses in both instances.
Thus, the overwhelming evidence suggests that, within the framework of the examination of the relevant Section 86b Paragraph 1 Sentence 1 No. 2 of the Social Court Act (SGG) and the balancing decision to be made in this context, taking into account the prospects of success of the main proceedings and a balancing of interests, the suspensive effect of the objection of 19 February 2025 should have been ordered.
The Social Court correctly stated in its decision that the retroactive "cessation" of benefits for the period from 1 to 19 February 2025, as carried out by the respondent in his decision of 19 February 2025, was not lawful for the past.
For the period from February 20, 2025 onwards, there is strong evidence to suggest that the termination notice of February 19, 2025, is unlawful. This constitutes a revocation decision – based on the benefit award notice of December 13, 2024 – whose legal basis is likely Section 9 Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Section 45 Paragraphs 1 and 2 of the German Social Code, Book X (SGB X). Beyond the question of whether the prerequisites for revoking an initially unlawful benefit decision were met, there is strong evidence to suggest that the discretionary power to revoke the decision was not exercised properly. Furthermore, it appears doubtful whether the prerequisites for an exclusion from benefits under Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) were fulfilled. Thus, the interpretation of the element of the offense in Section 1 Paragraph 4 Sentence 1 No. 2 of the Asylum Seekers' Benefits Act (AsylbLG), which was only included in the Act following a recommendation and report by the Committee on Internal Affairs and Community (4th Committee; BT-Drs. 20/13413) and which states that, for the person affected by the exclusion from benefits, "departure must be legally and factually possible according to the determination of the Federal Office for Migration and Refugees," is still largely unclear in case law and legal literature (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, Section 1 AsylbLG para. 48, 49; Frerichs in jurisPK-SGB XII, 4th edition 2024, Section 1 AsylbLG para. 206.7 ff.). Since the legal term "departure" generally encompasses both voluntary departure and forced deportation (see, for example, Federal Administrative Court, judgment of November 10, 2009 – 1 C 19/08 – juris para. 12 on Section 25 para. 5 of the Residence Act), different interpretations are conceivable (for more details see Senate decision of June 13, 2025 – L 8 AY 12/25 B ER – juris para. 20 ff.). Furthermore, the question arises as to the compatibility of Section 1 para. 4 of the Asylum Seekers' Benefits Act with constitutional and European law, which suggests a balancing of interests in favor of the applicants.
Furthermore, it should be noted that the decision to discontinue the proceedings on 19 February 2025, with the expiry of the transfer deadline on 6 May 2025, was likely unlawful at least from that point onwards due to the lack of the prerequisites of Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG).
This decision is final and cannot be appealed, § 172 para. 3 no. 3 SGG.
