DECISION
In the legal dispute
xxx,
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
– Applicant –
against
Harz District, represented by the District Administrator,
Friedrich-Ebert-Straße 42, 38820 Halberstadt
– Respondent –
The 25th Chamber of the Social Court of Magdeburg decided on September 8, 2025, through its presiding judge, Judge xxx of the Social Court:
The respondent is ordered by way of preliminary injunction to grant the applicant benefits in accordance with Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) at standard benefit level 1 provisionally until January 31, 2026, and subject to the right of recovery, from August 26, 2025, until a final and binding decision is reached on the applicant's objection of August 25, 2025, against the respondent's decision of August 8, 2025.
The respondent shall bear the applicant's extrajudicial costs.
The applicant is granted legal aid for the first instance without payment in installments, with the appointment of lawyer Adam, Göttingen.
REASONS
I.
The parties are in dispute over the granting of higher benefits under the Asylum Seekers' Benefits Act (AsylbLG), in particular over the granting of benefits under standard benefit level 1.
According to his own statements, the applicant entered the Federal Republic of Germany on May 23, 2024, and was transferred to Poland on November 4, 2024. On December 29, 2024, the applicant re-entered Germany. He submitted an asylum application on July 6, 2017, stating that he was a Syrian national. By decision dated February 6, 2025, the Federal Office for Migration and Refugees (BAMF) rejected the asylum application as inadmissible and ordered his deportation to Poland. Upon expiry of the transfer deadline pursuant to Article 29 of the Dublin Regulation, the BAMF revoked the decision of February 6, 2025 (decision dated July 17, 2025). The applicant holds a temporary residence permit for the purpose of conducting the asylum procedure, which is valid until January 23, 2026.
The applicant lives in the Central Reception Center for Asylum Seekers of the State of Saxony-Anhalt (ZAST) in Halberstadt – a communal accommodation facility as defined in Section 53 Paragraph 1 of the Asylum Act (AsylG). He most recently received ongoing benefits from the respondent, as per the decision dated August 8, 2025, pursuant to Sections 3, 3a Paragraphs 1 and 2 of the Asylum Seekers' Benefits Act (AsylbLG), in the amount of standard benefit level 2 (397 euros per month), less a reduction of 179.30 euros per month due to the principle of benefits in kind. He was therefore granted 217.70 euros per month from August 2025 onwards.
By letter from his attorney dated August 25, 2025, the applicant filed an objection to the decision and requested the granting of benefits under the Asylum Seekers' Benefits Act (AsylbLG) at the legally prescribed rate, corresponding to standard benefit level 1. He argued that the provision was manifestly unconstitutional. The Federal Constitutional Court (BVerfG), in its decision of December 19, 2022 (1 BvL 3/21) concerning Section 2 Paragraph 1 Sentence 4 No. 1 AsylbLG, had ruled that the regulation was incompatible with the constitutional requirements of Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1 of the Basic Law (GG) and that the calculation of benefits for regular needs to ensure a dignified existence at the level of standard benefit level 2 was not justifiable. These considerations, he argued, were readily applicable to benefits under Section 3 AsylbLG, and benefits should accordingly be granted taking into account standard benefit level 1.
As far as can be seen, no decision has yet been made regarding the objection.
On August 26, 2025, the applicant filed an application for preliminary legal protection. The applicant seeks the granting of benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) at standard benefit level 1. The applicant argues that the provisions of Sections 3 and 3a, paragraph 1, no. 2b, and paragraph 2, no. 2b of the AsylbLG are manifestly unconstitutional, as they violate 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 state principle of Article 20, paragraph 1 of the Basic Law (GG), and contravene the general principle of equality. In addition to numerous first-instance decisions of social courts in preliminary legal protection proceedings, he also referred to the decision of the Federal Constitutional Court (BVerfG) of October 19, 2022, published on November 23, 2022, under file number 1 BvL 3/21. In its ruling, the Federal Constitutional Court declared Section 2 Paragraph 1 Sentence 4 Number 1 of the Asylum Seekers' Benefits Act (AsylbLG) incompatible with Article 1 Paragraph 1 of the Basic Law (GG) in conjunction with the social welfare principle enshrined in Article 20 Paragraph 1 GG, insofar as a single adult is only granted a standard allowance at the level of standard allowance level 2. The Federal Constitutional Court's decision is also applicable to the provisions of Section 3a Paragraph 1 Number 2b and Section 3a Paragraph 2 Number 2b 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, provisionally and subject to the right of recovery, the requested benefits in the constitutionally compliant amount at standard benefit level 1 from the date of receipt of this application by the court, until a final and binding decision is reached on the applicant's objection of August 25, 2025, against the respondent's decision of August 8, 2025, taking into account the legal opinion of the court.
The respondent requests that
the application be rejected.
The respondent argues that there is no entitlement to higher benefits. For individuals living in communal accommodations, the provision of benefits for necessary personal needs and other necessary expenses is based on standard benefit level 2 according to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG). Benefits were granted in accordance with the legal requirements. According to the wording of the law, actual and verifiable shared household management with other residents of the communal accommodation is not a prerequisite for classification under standard benefit level 2. Synergies and cost savings are possible through the shared use of various everyday items. These savings result in particular from the free shared use of Wi-Fi, television rooms, and other cultural and media offerings of the facilities. The applicant has lower public transport expenses due to the social and family pass. Furthermore, no costs are incurred for clothing or its replacement due to the use of the clothing bank. Co-payments for medications are also eliminated.
In its decision of October 19, 2022, the Federal Constitutional Court declared only Section 2 Paragraph 1 Sentence 4 Number 1 of the Asylum Seekers' Benefits Act (AsylbLG) incompatible with the Basic Law. However, the decision did not affect Section 3a Paragraph 1 Number 2b and Paragraph 2 Number 2b of the AsylbLG. The power to cease applying a federal legal provision deemed unlawful rests solely with the Federal Constitutional Court. The administration is bound by the applicable laws. The statutory regulations remain in effect.
For further details of the parties' submissions and the facts of the case, reference is made to the administrative files of the respondent and the court file, which were the subject of the decision-making process.
II.
The application for preliminary legal protection is admissible and well-founded.
1. Pursuant to Section 86b Paragraph 2 of the Social Court Act (SGG), the court may 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 would hinder or substantially prevent the applicant from exercising a right. 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. According to Section 86b Paragraph 2 Sentence 4 of the SGG in conjunction with Section 920 Paragraph 2 of the Code of Civil Procedure (ZPO), the prerequisite for issuing a preliminary injunction is the demonstration of both a claim for an injunction (i.e., a substantive claim for performance in the main proceedings) and grounds for an injunction (i.e., the urgency of the regulation to avert substantial disadvantages). A claim for an injunction and grounds for an injunction are deemed credible if their factual prerequisites exist with a high degree of probability (cf. Keller in: Meyer-Ladewig/Keller/Leitherer/Schmidt, SGG, 13th edition 2020, § 86b para. 41).
The more serious the threatened violation of fundamental rights and the higher the probability of its occurrence, the more intensive the factual and legal analysis of the matter must be, even in preliminary injunction proceedings. If a clarification of the factual and legal situation commensurate with the threatened violation of fundamental rights is not possible in expedited proceedings—for example, because it would require further factual investigations that cannot be carried out within the short time available—a decision may be made based on a balancing of interests (Federal Constitutional Court).<BVerfG> , Decision of 14 March 2019 – 1 BvR 169/19 – juris Rn. 15 with further references).
Taking into account the necessary balancing of interests, the applicant has credibly demonstrated a claim to an injunction.
The applicant has been living in communal accommodation within the meaning of Section 53 Paragraph 1 of the Asylum Act since July 17, 2025, and indisputably receives benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act. However, in light of the decision of the Federal Constitutional Court of October 19, 2022, he is entitled to these benefits to the extent of standard benefit level 1. In its decision of October 19, 2022 – 1 BvL 3/21 – published on November 23, 2022, the Federal Constitutional Court ruled that special benefit level 2 for a single adult housed in communal accommodation, as provided for in the parallel provision of Section 2 Paragraph 1 Sentence 4 No. 1 of the Asylum Seekers' Benefits Act, is incompatible with the Basic Law (Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1 of the Basic Law) (fundamental right to a guaranteed minimum standard of living that ensures human dignity). The legislator's assumption that it is possible and reasonable for benefit recipients to utilize the opportunities for shared resources offered in accommodations, and to consider the resulting savings when calculating their subsistence needs (see BT-Drs. 19/10052, pp. 24 et seq.), is, in principle, constitutionally sound under the principle of subsidiarity. However, this obligation to share resources is only proportionate in the narrower sense if it is sufficiently ensured that the conditions for fulfilling these conditions and thus achieving corresponding savings actually exist in the communal accommodations. For this to be the case, there must be explicit indications of such conditions in the context of shared accommodation (§ 53 AsylG) or reception facilities (§ 44 AsylG) (see BVerfG of 19 October 2022 – 1 BvL 3/21 – juris para. 74 et seq.). The Federal Constitutional Court has ordered a transitional arrangement according to which, for single adults who are housed in communal accommodation, a standard allowance in the amount of standard allowance level 1 instead of 2 is recognized under the conditions of Section 2 Paragraph 1 Sentence 1 and Sentence 4 No. 1 AsylbLG.
The Federal Constitutional Court's finding that Section 2 Paragraph 1 Sentence 4 Number 1 of the Asylum Seekers' Benefits Act (AsylbLG) is incompatible with Article 1 Paragraph 1 of the Basic Law (GG) in conjunction with the social welfare principle enshrined in Article 20 Paragraph 1 GG has created an unintended regulatory gap. Recipients of basic benefits under Section 3a Paragraphs 1 and 2 AsylbLG, on the one hand, and recipients of so-called analogous benefits (Section 2 AsylbLG), who do not live in an apartment because they are housed in a reception center as defined in Section 44 Paragraph 1 of the Asylum Act (AsylG), in communal accommodation as defined in Section 53 Paragraph 1 AsylG, or in comparable accommodation on a more than temporary basis, would be treated differently with regard to the benefit levels. In this respect, identical situations would be treated unequally: Recipients of benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) would receive benefits at needs level 2, while recipients of so-called analogous benefits would receive benefits at standard needs level 1. This unequal treatment by the federal legislature is not objectively justified and would constitute a violation of the general principle of equality enshrined in Article 3 Paragraph 1 of the Basic Law (GG). That this was clearly not the intended regulatory concept is self-evident from a comparison between the version of Section 2 Paragraph 1 Sentence 4 No. 1 of the AsylbLG in force until the decision of the Federal Constitutional Court (decision of October 19, 2022 – 1 BvL 3/21 –, juris) and the current version of Section 3a Paragraph 1 No. 2 Letter b, Paragraph 2 No. 2 Letter b of the AsylbLG. It can therefore be assumed that the legal situation created by the decision of the Federal Constitutional Court does not correspond to the will of the federal legislature.
The clarification of the question in main proceedings as to whether a constitutionally compliant interpretation of Section 3a Paragraph 1 No. 2 Letter b, Paragraph 2 No. 2 Letter b of the Asylum Seekers' Benefits Act (AsylbLG) is possible cannot be awaited. Therefore, within the framework of the required balancing of interests, the rates of need pursuant to Section 3a Paragraph 1 No. 1 and Paragraph 2 No. 1 AsylbLG must be considered provisionally. The situations are comparable, as there is no evidence that actual savings are regularly achieved or could be achieved in the collective accommodations through shared resources. This applies all the more when – as in the present case – reductions of €179.30 per month are made from the necessary needs pursuant to Sections 3, 3a Paragraph 2 AsylbLG due to the principle of benefits in kind.
The Federal Government, through the Federal Ministry of Labour and Social Affairs (BMAS), has announced that the Federal Constitutional Court's ruling should also be applied to the granting of basic benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG). The reasoning underlying the unconstitutionality of the provision—namely, that there is no credible evidence that savings are regularly achieved or can be achieved in collective accommodations through shared resources that would justify a 10% reduction in benefits—is of a fundamental nature. The BMAS therefore assumes that the ruling also applies to the parallel provisions in Section 3a, paragraph 1, number 2, and paragraph 2, number 2, of the AsylbLG for benefits under the basic benefits scheme. Several German states (e.g., Berlin and Hesse) have already stipulated that in the future, all single adults receiving benefits under the Asylum Seekers' Benefits Act (AsylbLG) who are housed in communal accommodation, reception centers, or, if applicable, emergency shelters, are entitled to the standard benefit rate or the standard benefit level for single adults according to standard benefit level 1, provided they are not young adults living in their parents' household (regardless of the type of accommodation) (see, for example, the circular from the Berlin Senate Department for Integration, Labor and Social Affairs, No. 01/2023, on the implementation of Sections 2 and 3, 3a of the Asylum Seekers' Benefits Act (AsylbLG), and in Hesse, the decree of July 18, 2023, on the applicability of the decision of the Federal Constitutional Court of October 19, 2022 (1 BVL 3/21), to single, adult recipients of basic benefits under Sections 3, 3a AsylbLG housed in communal accommodation, available at [link to relevant document]). https://fr-hessen.de/wp-content/uploads/2023/07/Erlass-zur-Anwendung-der-BVerfGE-vom-19.10.22-auf-%C2%A7-3a-Abs.-1-Nr.-2-b-und-Abs.-2-Nr.-2-b-AsylbLG.pdf).
Furthermore, the 8th Senate of the Federal Social Court (BSG) suspended proceedings B 8 AY 1/22 R and referred the question to the Federal Constitutional Court as to whether Section 3a Paragraph 1 No. 2b of the Asylum Seekers' Benefits Act (AsylbLG) and Section 3a Paragraph 2 No. 2b of the AsylbLG, insofar as a single adult living in communal accommodation is only granted a need at the level of need level 2, are compatible with Article 1 Paragraph 1 of the Basic Law in conjunction with the social state principle from Article 20 Paragraph 1 of the Basic Law.
Furthermore, grounds for an injunction exist. Given the prevailing prospects of success in the main proceedings, as outlined above, and with reference to the decision of the Federal Constitutional Court of 19 October 2022, a restrictive jurisprudence in preliminary legal protection, focused on demonstrating urgency, is not warranted (Frerichs, loc. cit., para. 44.19).
The stipulated benefits were to be limited until January 31, 2026.
The decision on costs is based on a corresponding application of Section 193 of the Social Court Act (SGG).
The applicant is entitled to the requested legal aid. Pursuant to Section 73a Paragraph 1 Sentence 1 of the Social Court Act (SGG) in conjunction with Section 114 of the Code of Civil Procedure (ZPO), a party who, based on their personal and financial circumstances, cannot afford the costs of litigation, receives legal aid upon application if the intended legal action or defense offers a reasonable prospect of success and does not appear frivolous. The application for preliminary legal protection was partially successful.
The following is information on legal remedies.
