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,
– Initial Reception Facility of the State of Hesse –, Department VII,
Landgraf-Philipp-Platz 1-7, 35390 Gießen,
Respondent
The 6th Chamber of the Social Court of Kassel decided on July 24, 2025, through the presiding judge, Judge xxx of the Social Court:
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) to the extent provided by law from the date the application is received by the court until a final and binding decision is reached on the applicant's application of July 11, 2025, for review of the respondent's decision of March 19, 2025, but no later than the applicant's departure from the Federal Republic of Germany.
The respondent shall bear the applicant's necessary extrajudicial costs.
REASONS
I.
The parties are in dispute in the preliminary legal protection proceedings regarding the granting or prior withdrawal of benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG).
The applicant was born on [date redacted] in Baghlan, Afghanistan, and is an Afghan national.
In January 2025, he first entered the Federal Republic of Germany and was registered at the initial reception center of the state of Hesse in Gießen. There, he submitted an asylum application to the responsible branch office of the Federal Office for Migration and Refugees (BAMF).
By decision dated January 31, 2025, the applicant was granted benefits pursuant to Section 3 in conjunction with Section 3a of the Asylum Seekers' Benefits Act
(AsylbLG) effective January 18, 2025. The applicant's asylum application was rejected as inadmissible by decision of the BAMF dated February 18, 2025, pursuant to Section 29 Paragraph 1 No. 1 of the Asylum Act (AsylG), because he had already submitted an asylum application in France, and his deportation to France was ordered. This decision has been final and unappealable since March 25, 2025.
By letter dated March 4, 2025, the applicant was given the opportunity, with regard to a planned termination of benefits pursuant to Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG), to present reasons that would preclude the exclusion of benefits and to comment within 14 days of receiving the letter, in accordance with Section 28 of the Hessian Administrative Procedure Act (HVwVfG). The applicant received the hearing notice on March 11, 2025. On March 11, 2025, the applicant marked "No" to each of the following questions in the questionnaire of the hearing notice dated March 4, 2025:
Do you or your children require assistance to overcome particular hardship?
– Is your need temporary?
He explained that he had come to Germany to live and work. France was not his intended destination. He did not have an Afghan passport. He had respiratory problems. He was unsure whether his legal proceedings were concluded. He requested further financial assistance.
By decision dated March 19, 2025, the decision issued by the respondent on January 31, 2025, granting benefits pursuant to Sections 3 in conjunction with 3a and, where applicable, Section 16 of the Asylum Seekers' Benefits Act (AsylbLG), was revoked with immediate effect pursuant to Section 9 Paragraph 4 No. 1 AsylbLG in conjunction with Section 45 of the Tenth Book of the German Social Code (SGB X). Pursuant to Section 1 Paragraph 4 AsylbLG, no further benefits under the AsylbLG will be granted, except for bridging benefits until departure, but for a maximum period of two weeks until April 7, 2025. The decision was served on the applicant on March 26, 2025, and an acknowledgment of receipt was signed.
The applicant did not file an objection. On July 11, 2025, the applicant's legal representative filed a request for review.
On July 11, 2025, the applicant, through his legal representative, filed an application for an interim injunction with the Kassel Social Court.
The applicant argues that the provision in Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) is manifestly unconstitutional, as it violates the fundamental right to a dignified minimum standard of living, guaranteed by Article 1 Paragraph 1 of the Basic Law (GG) in conjunction with the social welfare principle of Article 20 Paragraph 1 GG.
Section 1 Paragraph 4 AsylbLG also violates EU law.
The only possible legal basis under EU law is Article 20 Paragraph 1 Letter c of Directive 2013/33/EU (Reception Directive). According to this provision, Member States may, in justified exceptional cases, restrict or withdraw the material benefits granted during reception if an applicant has submitted a subsequent application under Article 2 Letter q of Directive 2013/32/EU (Asylum Procedures Directive). Whether a subsequent application can exist if the initial application was lodged in another Member State, or whether a subsequent application must be preceded by an initial application in the same Member State, is disputed (the wording of Article 40(1) of the Asylum Procedures Directive argues against this: “…in the same Member State…”). In case C-8/20, the European Commission stated that Union law precludes the cross-border application of the subsequent application concept. The cross-border application of this concept implies a certain degree of mutual recognition of negative asylum decisions, and such recognition is not generally provided for in current Union asylum law. There is strong support for the view that such a step towards mutual recognition would have to be expressly and clearly decided upon by the Union legislature, especially since the consequences for asylum seekers of classifying an application as a subsequent application are considerable.
Furthermore, a reduction pursuant to Article 20(1)(c) of Directive 2013/33/EU would only be permissible if the beneficiary could be accused of unlawful conduct. This is because a review in conjunction with the other grounds for reduction under Article 20(1)(a) and (b) and (2) to (4) of Directive 2013/33/EU shows that a restriction or withdrawal of the material benefits granted within the framework of reception always presupposes unlawful conduct. Only under this condition can a justified exceptional case within the meaning of Article 20(1) of Directive 2013/33/EU exist. Here, no unlawful conduct can be attributed to the individual. The individual neither entered Germany unlawfully nor remained there unlawfully.
Moreover, Section 1(4), sentence 1, of the Asylum Seekers' Benefits Act (AsylbLG) violates Article 20(5) of Directive 2013/33/EU. Decisions regarding the restriction or withdrawal of material benefits granted during the reception process, or regarding sanctions under paragraphs 1, 2, 3, and 4 of Article 20, shall be made and reasoned on a case-by-case basis, objectively and impartially. These decisions must be based on the specific circumstances of the individuals concerned, particularly with regard to the persons referred to in Article 21, and must adhere to the principle of proportionality. In accordance with Article 19, Member States shall in all cases guarantee access to medical care and ensure a dignified standard of living for all applicants. Section 1(4), first sentence, of the Asylum Seekers' Benefits Act (AsylbLG) fails to meet these requirements because it is structured as a mandatory decision, thus leaving no room for consideration of the principle of proportionality. Furthermore, the benefits withheld under Section 1 of the AsylbLG do not guarantee a dignified standard of living within the meaning of Article 20(5), third sentence, of Directive 2013/33/EU. The level of benefits is determined by what is considered appropriate in the respective national context. According to national constitutional law, there is a direct constitutional right to benefits to guarantee a dignified minimum standard of living. Physical and socio-cultural existence must be uniformly secured. The human dignity on which this right is based belongs to everyone and is not lost even through supposedly "undignified" behavior. Furthermore, concerns under European law already exist due to the referral decision of the Federal Social Court of July 25, 2024, under file number B 8 AY 6/23 R, regarding the comparable provision in Section 1a Paragraph 7 of the Asylum Seekers' Benefits Act (AsylbLG).
The applicant requests that
the respondent be ordered, by way of an interim injunction, to grant the applicant the requested benefits in the statutory amount from the date of receipt of this application by the court, provisionally and subject to the right of recovery, until a final and binding decision is reached on the applicant's application of July 11, 2025, for review of the respondent's decision of March 19, 2025, taking into account the legal opinion of the court.
The respondent requests that
the application be rejected.
Applications for preliminary injunctions filed within the framework of ongoing review proceedings under Section 44 of the German Social Code, Book Ten (SGB X), are subject to particularly stringent requirements regarding the substantiation of the grounds for the injunction and the claim to the injunction. If a legally binding decision is to be revoked in such proceedings, the applicant can generally be expected to await the decision in the administrative proceedings or in subsequent main court proceedings.
Alternatively, it is argued that there is no violation of European law. Member States are obliged to enforce the obligation to leave the country on the basis of Regulation (EU) No. 604/2013. The restriction of benefits pursuant to Section 1 Paragraph 4 Sentence 1 Number 2 of the Asylum Seekers' Benefits Act (AsylbLG) is intended to safeguard this obligation to leave the country at the level of benefit law (referral decision of the Federal Social Court (BSG) of July 25, 2024, BeckRS 2024, 25076, para. 12; Bundestag printed matter 20/12805, p. 21). Regulation (EU) No. 604/2013 is directly applicable European law. According to Article 29 Paragraph 1 Sentence 1 of Regulation (EU) No. 604/2013, Member States are directly obliged to transfer the asylum seeker if their application has been rejected as inadmissible. As the benefit provider, the applicant must respect this obligation to transfer and is therefore required to impose a restriction of benefits – as regulated in Section 1 Paragraph 4 Sentence 1 Number 2 of the AsylbLG – to support the transfer.
Asylum seekers falling under the provisions of Section 1 Paragraph 4 Sentence 1 Number 2 of the Asylum Seekers' Benefits Act (AsylbLG) receive bridging benefits for a period of two weeks. Within this period, it is reasonable to expect asylum seekers to leave the Federal Republic of Germany and return to the Dublin State that is exclusively responsible for their asylum procedure (Bundestag Printed Matter 20/12805, p. 31). Without the provision of Section 1 Paragraph 4 Sentence 1 Number 2 of the AsylbLG, the already poorly functioning Dublin system would collapse. The provision is therefore required under European law to ensure the practical implementation of the Dublin Regulation (see also LPK-SGB XII/Birk AsylbLG Section 1, marginal note 26).
Furthermore, there is no violation of constitutional law.
In this context, reference is made to the convincing reasoning of the Osnabrück Social Court (decision of January 27, 2020 – S 44 AY 76/19 ER, BeckRS 2020, 669). According to the Federal Constitutional Court, considerations of migration policy, namely keeping benefits for asylum seekers and refugees low in order to avoid incentives for migration through a potentially high level of benefits compared internationally, may not justify lowering the standard of benefits below the physical and socio-cultural subsistence level (NVwZ 2012, 1024). However, these reasoning refers specifically to the general calculation of standard benefits. The Federal Constitutional Court's statements are decisive only for this area. However, the granting of benefits taking into account a reduction in benefits pursuant to Section 1 Paragraph 4 Sentence 1 No. 2 of the Asylum Seekers' Benefits Act (AsylbLG) is not a regular provision of benefits pursuant to Section 3 of the AsylbLG. The standard benefit rates are therefore not generally kept low to prevent migration, but rather are a response to a specific situation. Section 1, paragraph 4, sentence 1, number 2 of the Asylum Seekers' Benefits Act (AsylbLG) concerns the concrete, legally binding provision of benefits to support an obligation to leave the country based on Regulation (EU) No. 604/2013, which is not objectionable under constitutional law.
Furthermore, Section 1, paragraph 4, sentence 1, number 2 of the AsylbLG is valid law and therefore applicable. Any deviation by benefit providers from the legal provision of Section 1, paragraph 4, sentence 1, number 2 of the AsylbLG would violate the principle of legality in administration. Due to the primacy of law, there is a requirement to apply the law and a prohibition against deviation, meaning that benefits can only be granted under the corresponding conditions. The application of Section 1, paragraph 4, sentence 1, number 2 of the AsylbLG is also lawful.
For further details of the facts and the legal arguments, reference is made to the contents of the court file and the administrative records of the respondent. These were the subject of the decision.
II.
The admissible application is well-founded.
Pursuant to Section 86b Paragraph 2 Sentence 1 of the Social Courts 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 (protective injunction). Pursuant to Section 86b Paragraph 2 Sentence 2 SGG, 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 significant disadvantages (regulatory injunction).
If a claim for benefits forms the basis for the requested interim order, this is generally to be granted by way of a regulatory order pursuant to Section 86b Paragraph 2 Sentence 2 of the Social Court Act (SGG).
The prerequisite is that the applicant has credibly demonstrated a substantive legal claim against the respondent to the requested benefit (claim for an injunction) and the urgency of its regulation to avert significant disadvantages, i.e., the unreasonableness of waiting for a decision on the merits (ground for an injunction), pursuant to Section 86b Paragraph 2 Sentence 4 of the Social Court Act (SGG) in conjunction with Section 920 Paragraph 2 of the Code of Civil Procedure (ZPO) (Hesse Higher Social Court, decision of December 19, 2013 – L 8 KR 411/12 B ER –, juris, para. 55). The requirement of establishing prima facie evidence refers to the reduced intensity of scrutiny and the need for only a preponderance of probability to demonstrate the factual prerequisites for the claim and the grounds for the injunction (Keller in: Meyer-Ladewig/Keller/Leitherer, SGG, Commentary, 13th edition 2020, § 86b SGG para. 16b, 16c).
The claim and the grounds for the injunction do not exist in isolation. Rather, they are interrelated, with the requirements for the claim decreasing as the urgency or severity of the threatened harm increases, and vice versa. Due to their functional connection, the claim and the grounds for the injunction form a dynamic system. If a main action would be 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, a claim on the merits is clearly admissible and well-founded, the requirements for the grounds for the injunction are reduced, and the application for a preliminary injunction must generally be granted, although the grounds for the injunction cannot be dispensed with entirely. If the outcome of the main proceedings is uncertain, for example, if a complete clarification of the factual or legal situation is not possible in preliminary legal protection, the court must decide, by weighing the consequences, which party can more reasonably be expected to wait for the decision on the merits (Hesse Higher Social Court, decision of August 13, 2013 – L 1 KR 229/13 B ER –, juris, para. 17 with further references). In doing so, the applicant's fundamental rights, insofar as they are affected by the decision, must be fully considered. The courts must protect and promote the fundamental rights of the individual. Specifically, they must prevent a violation of the constitutional guarantee of human dignity, even if such a violation only appears possible or is only temporary (Federal Constitutional Court, Chamber decisions of May 12, 2005 – 1 BvR 569/05 – and of February 25, 2009 – 1 BvR 120/09 –, Higher Social Court of Hesse, decisions of December 11, 2019 – L 6 AS 528/19 B ER –, of August 5, 2020 – L 6 AS 362/20 B ER –, of August 21, 2020 – L 6 AS 383/20 B ER – and of April 26, 2021 – L 6 AS 603/20 ER –).
In principle, due to the provisional nature of the interim injunction, the final decision in the main proceedings should not be anticipated. However, due to the requirement to grant effective legal protection (cf. Article 19 Paragraph 4 of the Basic Law (GG)), this principle must be deviated from if, without the requested order, serious, unreasonable, and irreparable disadvantages would arise, which a subsequent decision on the merits would no longer be able to remedy (Federal Constitutional Court, Decision of October 25, 1988 – 2 BvR 745/88 –; Federal Constitutional Court, Decision of November 22, 2002 – 1 BvR 1586/02 –).
As with actions for performance or injunctions admissible in the main proceedings in such cases, the court's decision must be based on the legal situation and the state of the proceedings at the time of the court's decision (Keller in: Meyer-Ladewig/Keller/Leitherer, SGG, 13th edition 2020, § 86b SGG Rn. 42).
Measured against this standard, the applicant is to be granted provisional benefits in accordance with Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) to the extent permitted by law from the date the application is received by the court until a legally binding decision is reached on the applicant's application of July 11, 2025, for review of the respondent's decision of March 19, 2025, but no later than until departure from the Federal Republic of Germany.
The applicant has demonstrated both a claim to an injunction and grounds for an injunction.
Although the decision to be reviewed, dated March 19, 2025, has become legally binding, there is generally no entitlement to an
injunction for a request that has already been rejected by a legally binding administrative act. Due to the finality of the decision, it is established (§ 77 SGG) that the respondent is not obligated to grant the applicant the requested benefits. A different conclusion can only be reached if a review procedure pursuant to § 44 SGB X is pending with regard to the legally binding administrative act and the prerequisites for the revocation of the decision pursuant to § 44 SGB X are undoubtedly met, i.e., the decision is manifestly unlawful (Burkiczak in: Schlegel/Voelzke, jurisPK-SGG, 2nd ed., § 86b SGG (as of May 22, 2025), para. 397).
On July 11, 2025, the applicant's legal representative filed a request for review of the decision dated March 19, 2025. The decision under review revoked the decision of January 31, 2025, granting benefits pursuant to Sections 3 in conjunction with 3a and, where applicable, Section 16 of the Asylum Seekers' Benefits Act (AsylbLG), with immediate effect, clearly unlawfully, pursuant to Section 9 Paragraph 4 No. 1 AsylbLG in conjunction with Section 45 of the German Social Code, Book X (SGB X). Furthermore, pursuant to Section 1 Paragraph 4 AsylbLG, the decision revoked all benefits under the AsylbLG, except for bridging benefits until departure, but for a maximum of two weeks until April 7, 2025. The applicant's rights were thereby violated. Based on the legal situation and the state of the dispute at the time of the court's decision, the decision of March 19, 2025, does not contain the discretionary considerations required by Section 45 SGB X.
Furthermore, the applicant has no means of subsistence.
Accordingly, the application should have been granted.
The decision on costs follows the decision on the merits and is based on § 193 SGG by analogy.
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