DECISION
In the legal dispute
xxx,
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
– Applicant –
against
Altmarkkreis Salzwedel, represented by the District Administrator,
Karl-Marx-Straße 32, 29410 Salzwedel
– Respondent –
The 31st 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 21, 2025, until a final and binding decision is reached on the applicant's action of March 26, 2025, under file number S 31 AY 20/25, against the decision of December 10, 2024, as amended by the objection decision of February 24, 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.
The applicant, born on xxx, a Malian national, stated that he entered the Federal Republic of Germany on September 7, 2023, and applied for asylum. He has a temporary residence permit.
The applicant was assigned to the respondent for accommodation on November 13, 2023, where he initially resided in communal accommodation within the meaning of Section 53 Paragraph 1 of the Asylum Act (AsylG) at Siedlung des Friedens 38 in Salzwedel, and since December 7, 2023, in communal accommodation at the address stated in the heading. Since November 13, 2023, he has been receiving ongoing benefits from the respondent pursuant to Sections 3, 3a Paragraphs 1 and 2 of the Asylum Seekers' Benefits Act (AsylbLG) in the amount of standard benefit level 2 (initial decision dated November 15, 2023). By decision dated 8 February 2024, the respondent, revoking all previous decisions and taking into account the amended standard rates effective from 1 January 2024, granted the applicant ongoing benefits from January 2024 onwards in accordance with Sections 3, 3a Paragraphs 1 and 2 of the Asylum Seekers' Benefits Act (AsylbLG) in accordance with standard benefit level 2 in the amount of €413.00 per month.
By decision dated December 10, 2024, the respondent set the benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG), revoking all previous decisions, at a monthly benefit of €397.00 effective January 2025. The respondent referred to the amendment to the standard benefit rate under the AsylbLG, announced by the Federal Ministry of Labor and Social Affairs, effective January 2025. The applicant filed an objection to this decision by letter dated December 17, 2024, contesting the reduction in benefits. He argued that the cost of living had increased.
By decision dated February 24, 2025, the State Administrative Office in Halle, responsible for the decision, rejected the objection as unfounded. According to Section 3a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG), the AsylbLG benefit rates are to be adjusted annually on January 1st in accordance with the rate of change pursuant to Section 28a of the German Social Code, Book XII (SGB XII), in conjunction with the Ordinance on the Adjustment of Standard Needs Levels pursuant to Section 40 Sentence 1 Number 1 of the SGB XII. The Ordinance on the Adjustment of Standard Needs Levels 2025 (RBSFV 2025) of October 23, 2024 (Federal Law Gazette 2024 I No. 312) entered into force on January 1, 2025. Based on this, the Federal Ministry of Labor and Social Affairs (BMAS) published the announcement regarding the level of the standard benefit rates pursuant to Section 3a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) for the period from January 1, 2025, in accordance with Section 3a Paragraph 4 Sentence 3 of the AsylbLG, in the Federal Law Gazette (BGBl.) 2024 I No. 325 of October 29, 2024. According to Section 1 Paragraph 1 of the Ordinance on Standard Benefit Rates for 2025 (RBSFV 2025), the rates of change as of January 1, 2025, are 4.60 percent for the basic update of the standard benefit rates pursuant to Section 28a Paragraph 3 of the German Social Code, Book XII (SGB XII), and 0.7 percent for the supplementary update of the standard benefit rates pursuant to Section 28a Paragraph 4 of the SGB XII. The resulting euro amounts for the standard benefit rates are lower than the euro amounts determined for 2024. Therefore, the AsylbLG standard benefit rates will decrease in 2025. The reduction of the standard benefit rates under the Asylum Seekers' Benefits Act (AsylbLG) necessitates the issuance of a new benefit notice for the period from January 1, 2025. While this constitutes a burdensome administrative act, which in principle should be preceded by a hearing pursuant to Section 24 of the German Social Code, Book X (SGB X), this requirement can be waived because all beneficiaries under Sections 3 et seq. of the AsylbLG are affected by the adjustment of the standard benefit rates.
The plaintiff, now represented by counsel, filed a lawsuit on March 26, 2025, with the Magdeburg Social Court against the decision on his objection. The lawsuit is pending under file number S 31 AY 20/25 and seeks the granting of benefits under the Asylum Seekers' Benefits Act (AsylbLG) at the standard benefit rate level 1, effective January 1, 2025. The plaintiff argues that the provisions of Sections 3, 3a Paragraph 1 No. 2b, and Paragraph 2 No. 2b of the AsylbLG are manifestly unconstitutional. The plaintiff contends that the decision of the Federal Constitutional Court (BVerfG) of October 19, 2022 (1 BvL 3/21) also applies to the provisions of Section 3a Paragraph 1 No. 2b and Section 3a Paragraph 2 No. 2b of the AsylbLG. Furthermore, the plaintiff argues that the benefits payable from January 1, 2025, onward must not be reduced compared to the benefits in 2024. The protection of possession clause of Section 28a Paragraph 5 of the German Social Code, Book XII (SGB XII) is directly applicable in the Asylum Seekers' Benefits Act (AsylbLG), so that the euro amounts of the year 2024 will continue to apply unchanged in 2025 with regard to benefits in the AsylbLG and no lower approval is to be accepted.
On August 21, 2025, the applicant filed a request for preliminary legal protection with the Magdeburg Social Court, seeking benefits under the Asylum Seekers' Benefits Act (AsylbLG) at standard benefit level 1. He argued that the provisions of Sections 3, 3a Paragraph 1 No. 2b, and Paragraph 2 No. 2b of the AsylbLG were manifestly unconstitutional, as they violated 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 GG, and contravened 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 (BVerfG) 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 BVerfG's decision is also applicable to the provisions of Section 3a Paragraph 1 Number 2b and Section 3a Paragraph 2 Number 2b of the AsylbLG. Contrary to his claim in proceedings S 31 AY 20/25, the applicant did not base his claim on the direct application of Section 28a Paragraph 5 of the German Social Code, Book XII (SGB XII) within the 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 action against the applicant's decision of December 10, 2024, as amended by the decision on the objection of February 24, 2025, taking into account the legal opinion of the court.
The respondent requests that
the application for an interim injunction be dismissed.
The respondent, reiterating and elaborating on his arguments from the objection proceedings, maintains that he is not entitled 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 pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG). No other legal provision exists. An analogous application of the Federal Constitutional Court's decision under file number 1 BvL 3/21 is unknown and has not been ordered by the supervisory authority. The statutory provision remains in effect. Furthermore, the Ministry of the Interior and Sport of the State of Saxony-Anhalt decided in a decree dated March 29, 2023, that the Federal Constitutional Court's decision of October 19, 2022, 1 BvL 3/21, is not applicable to single adults receiving basic benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) who are housed in communal accommodations. The decision only declares Section 2 Paragraph 1 Sentence 4 Number 1 of the Asylum Seekers' Benefits Act (AsylbLG) incompatible with the Basic Law. Regardless of how the constitutionality is assessed, the administration is bound by applicable law. The provisions of Section 3a Paragraph 1 Number 2b and Paragraph 2 Number 2b of the AsylbLG must be applied, and thus benefits must be granted according to standard benefit level 2. Furthermore, the necessary grounds for an injunction are lacking. The decision is dated December 10, 2024, and the lawsuit was filed in March 2025. The application for a preliminary injunction was only submitted eight months after the decision was issued. This waiting period of several months demonstrates that there is no particular urgency.
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 order and grounds for an order.
The decision of December 10, 2024, was formally lawful. In particular, no prior hearing was required pursuant to Section 24 of the German Social Code, Book X (SGB X). According to Section 24, Paragraph 2, No. 4 of the SGB X, a hearing can be waived when issuing a large number of similar administrative acts. This is the case when one and the same administrative body, based on a binding legal provision, must issue regulations to a large number of addressees at roughly the same time, which alter the legal status of those affected according to an identical standard for all and would otherwise lead to an unacceptable procedural delay (von Wulffen/Schütze, SGB X, Section 24, marginal notes 30f). This is the situation here: The 2025 Ordinance on the Updating of Standard Needs Levels regulates the standard needs level according to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) from January 2025 and is therefore addressed to a large number of addressees of the regulation at the same time, so that the respondent could waive a prior hearing pursuant to Section 24 Paragraph 2 No. 4 of the German Social Code, Book X (SGB X).
However, the decision proves to be materially unlawful after the summary examination required in the preliminary legal protection proceedings.
The applicant lives in communal accommodation within the meaning of Section 53 Paragraph 1 of the Asylum Act 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 those entitled to benefits to utilize the opportunities for shared resources offered in accommodations, and the consideration of the resulting savings when calculating their subsistence needs (see BT-Drs. 19/10052, pp. 24 et seq.), is, in principle, not objectionable under constitutional law according to 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. 2b, Paragraph 2 No. 2b 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. 2b, Paragraph 2 No. 2b of the Asylum Seekers' Benefits Act (AsylbLG) is possible cannot be awaited. Therefore, within the framework of the required balancing of interests, the benefit rates pursuant to Section 3a Paragraph 1 No. 1 and Paragraph 2 No. 1 of the AsylbLG must be considered provisionally.
The situations are comparable, as there is no evidence that actual savings are regularly achieved or could be achieved through shared management in the collective accommodations.
The Federal Government, through the Federal Ministry of Labour and Social Affairs (BMAS), has already 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).
The 8th Senate of the Federal Social Court (BSG) has now 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 Federal Constitutional Court's decision of October 19, 2022, a restrictive jurisprudence in preliminary legal protection, focused on demonstrating urgency, is not warranted (Frerichs, loc. cit., para. 44.19). The fact that the contested decision is dated December 10, 2024, and the action was filed in March 2025, does not preclude the urgency required for the application for preliminary legal protection, which was only filed on August 21, 2025. According to the applicant's own statement of application, further (provisional) benefits were only sought after the court received the application.
The stipulated benefits were to be limited until January 31, 2026.
2. The decision on costs is based on a corresponding application of Section 193 of the Social Court Act (SGG).
3. 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 well-founded.
The following is information on legal remedies.
