L 4 AY 9/25 B ER
S 7 AY 8/25 ER (Fulda Social Court)
DECISION
In the appeal proceedings
1. xxx,
Applicant and respondent,
2. xxx,
Applicant and respondent,
Legal representative: for 1-2:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
Fulda District, represented by the District Committee
– Department 1300 – Law, Local Government Supervision, Elections and Procurement –,
Wörthstraße 15, 36037 Fulda,
Respondent and appellant,
The 4th Senate of the Hessian State Social Court in Darmstadt decided on September 17, 2025, through the presiding judge of the State Social Court xxx, the judge of the State Social Court xxx and the judge of the State Social Court xxx:
The respondent's appeal against the decision of the Fulda Social Court of June 4, 2025, is dismissed.
The respondent must reimburse the applicants for the necessary extrajudicial costs incurred in pursuing their legal rights, including those of the appeal proceedings.
The applicants are granted legal aid without installment payments for the appeal proceedings, with the appointment of Mr. Adam, Attorney at Law, Göttingen.
REASONS
I.
The parties are in dispute over the order for the suspensive effect of an objection against a reduction in benefits by the respondent in asylum seeker benefits law.
Applicant 1, born in Baghlan, Afghanistan on [date] 1974, and Applicant 2, born in Baghlan, Afghanistan on [date] 1979, entered Germany via Frankfurt Airport on June 4, 2024, with their children ([name], born on [date] 2021; [name], born on [date] 2012; [name], born on [date] 2009; and [name], born on [date] 2008) and submitted an asylum application on June 14, 2024. They entered Germany via Greece (arriving there on February 15, 2024). On April 9, 2024, the applicants' family was granted a residence permit in Greece, valid until April 8, 2027, as they were granted international protection. The applicants currently hold temporary residence permits in Germany, valid until November 19, 2025.
By decision dated 27 August 2024, the respondent granted the applicants benefits to secure their livelihood in accordance with the Asylum Seekers' Benefits Act (AsylbLG) pursuant to Section 3 in conjunction with Section 3a AsylbLG for the period from 12 August 2024 to 31 August 2025.
Following a hearing of the applicants by letter dated September 25, 2024, the respondent, by decision dated October 10, 2024, withdrew the decision of August 27, 2024, regarding the amount of benefits as of October 31, 2024, and recalculated the benefits for the applicants as of November 1, 2024.
Benefits would be provided in accordance with Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG) to cover the need for food, accommodation including heating, and personal hygiene and healthcare. Benefits for the applicants' children would continue to be provided in accordance with Section 3 in conjunction with Section 3a of the AsylbLG. The restriction of entitlement pursuant to Section 1a Paragraph 4 Sentence 2 of the AsylbLG would initially be in effect for a period of six months. By order of November 28, 2024, the Social Court ordered the suspension of the applicants' objection of October 16, 2024, against the decision of October 10, 2024, due to the respondent's failure to exercise discretion (S 7 AY 6/24 ER).
After hearing the applicants, the respondent, by decision dated April 24, 2025, revoked the decision of August 27, 2024, granting benefits to secure the applicants' livelihood under the Asylum Seekers' Benefits Act (AsylbLG) for the period from August 12, 2024, to August 31, 2025, with regard to the benefit amount from May 1, 2025, and recalculated the benefits for the applicants from May 1, 2025, to August 31, 2025. Benefits are provided in accordance with Section 1a Paragraph 4 of the AsylbLG to cover the needs for food, accommodation including heating, and personal hygiene and healthcare. Benefits for the applicants' children continue to be granted in accordance with Section 3 in conjunction with Section 3a of the AsylbLG. The legal basis for the revocation is Section 45 Paragraph 2 of the German Social Code, Book Ten – Social Administrative Procedure and Social Data Protection – (SGB X). No reasons for deviating from the legally prescribed level of benefit reduction have been given in these proceedings, nor are any apparent. In the documents submitted, the applicants generally described the benefit level under Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) as too low or unconstitutional, but no individual reasons have been asserted. It is a reality that the benefit rates under the AsylbLG are implemented nationwide. Therefore, making an exception for the applicants regarding the provisions of the AsylbLG and setting a benefit level other than the legally prescribed one, despite the fulfillment of the relevant requirements, would constitute state arbitrariness, which would contravene the rule of law principle enshrined in Article 20 Paragraph 3 of the Basic Law. According to Section 14 Paragraph 2 of the AsylbLG, the benefit reduction must continue in the event of a continuing breach of duty, provided that the legal requirements for the benefit reduction continue to be met. According to Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG), benefits for persons holding a temporary residence permit must be restricted if they have already been granted international protection or another right of residence by another EU member state or a third country participating in a distribution mechanism, and this right is still valid at the present time. This is the case here due to the applicants' residence permit in Greece, which is valid until April 8, 2027. The applicants are guilty of specific misconduct for which they themselves are responsible, as their unauthorized presence in the Federal Republic of Germany, due to their continued right of residence in Greece, has been known at least since the previous restriction of their benefits. From our perspective, there is no indication that the return of the applicants and their children to Greece would be legally or practically impossible or unreasonable.
By decision on objection dated January 2, 2025, the respondent rejected, among other things, the applicants' objection to the decision of October 10, 2024. By order dated March 17, 2025, the Fulda Social Court ordered, among other things, the suspensive effect of the applicants' action filed by letter dated January 17, 2025, against the respondent's decision of October 10, 2024, as amended by the decision on objection dated January 3, 2025 (S 7 AY 3/25 ER).
On May 2, 2025, the applicants filed an objection to the respondent's decision of April 24, 2025. They argued that the reduction was unconstitutional and also violated EU law. The Federal Social Court, therefore, referred questions to the European Court of Justice (ECJ) for a preliminary ruling on the interpretation of the Reception Directive in conjunction with the Dublin III Regulation by decision of July 25, 2024 (Case No.: B 8 AY 6/23 R). The questions raised there are applicable to Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG), which is the subject of this dispute.
On May 4, 2025, the applicants filed an application for preliminary legal protection with the Fulda Social Court with the aim of ordering the suspensive effect of the objection of May 2, 2025 against the decision of the respondent of April 24, 2025. In support of their application, the applicants again raised constitutional concerns regarding Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) and elaborated on their constitutional concerns regarding Section 1a Paragraph 4 of the AsylbLG, citing relevant case law, in particular the decision of the Schleswig-Holstein Higher Social Court (LSG) of June 15, 2020, Case No.: L 9 AY 78/20 B ER, the Saxony-Anhalt Higher Social Court (LSG) of April 28, 2025, Case No.: L 8 AY 6/25 B ER, and the present panel of judges, decision of March 31, 2020, Case No.: L 4 AY 4/20 B ER, along with their arguments concerning a violation of EU law. They maintained that they could not be accused of any individual breach of duty. The restriction on entitlement under Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) does not pursue a legitimate aim within the meaning of the jurisprudence of the Federal Constitutional Court (see Federal Constitutional Court, judgment of November 5, 2019, Case No.: 1 BvL 7/16, paragraphs 126 et seq.). The provision is not intended to enforce any obligation to cooperate under asylum or immigration law. The legislature's sole aim is clearly the repressive sanctioning of individual behavior by those affected, intended to have a deterrent effect on others and pressure them to leave voluntarily. This is because the restriction on entitlement under Section 1a Paragraph 4 of the AsylbLG only requires that another state be responsible for the asylum application. Those affected have no opportunity to respond. The legislature intends to curb unwanted secondary migration in this way. According to the jurisprudence of the Federal Constitutional Court, the legitimate aim of a benefit-related sanction can only be to prevent or overcome existential need. This is clearly not the case here. Benefits are being reduced by approximately 60%. In the initial proceedings, the respondent maintained his legal position that the benefit reduction was lawful. The competent federal courts have not yet ruled on the constitutionality of the current regulations in Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) or Section 1a Paragraph 4 of the AsylbLG. Nor can the unconstitutionality be considered obvious, as the rulings of the state social courts also vary. This also applies to a potential incompatibility with EU law, as confirmed by the Bavarian State Social Court in its recent judgment of March 10, 2025 (Case No.: L 11 AY 9/25 B ER) regarding the restriction of benefits under Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act. In the context of the balancing of interests, the respondent argues that there is a stronger public interest in the immediate enforceability of the restriction of benefits than in the legitimate interests of the applicants.
By decision of June 4, 2025, the Fulda Social Court ordered the suspension of the enforcement of the decision of April 24, 2025, filed by the applicants on May 4, 2025, which had been lodged by them. The application for the suspension of the enforcement of the respondent's decision of April 24, 2025, was granted, as this decision was found to be manifestly unlawful. In this regard, the Social Court stated the following in its decision of June 4, 2025:
"With the contested decision of April 24, 2025, the respondent revoked the initial decision of August 27, 2024, regarding the benefit amount as of May 1, 2025, and recalculated the benefits granted to the applicants for the period from May 1, 2025, to August 31, 2025. The respondent is of the opinion that the benefit award pursuant to the decision of August 27, 2024, was unlawful from the outset, as the conditions for a restriction of entitlement under Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG) are applicable. Whether this is actually the case is ultimately irrelevant, as the conditions for a restriction of entitlement beyond April 30, 2025, are not met.".
Pursuant to Section 14 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG), the restrictions on benefits under this Act are to be limited to six months. The respondent already imposed such a six-month restriction on benefits by decision dated October 10, 2024, as amended by the appeal decision dated January 3, 2025, which is the subject of the legal proceedings under file number S 7 AY 1/25, for the period from November 1, 2024, to April 30, 2025. According to Section 14 Paragraph 2 of the AsylbLG, the restriction on benefits is to be continued if a breach of duty continues, provided that the legal requirements for the restriction of benefits continue to be met. However, no such breach of duty exists in this case. The legal basis for the benefit reduction under Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) is not based on any specific misconduct by the benefit recipients, but rather on the fact that these individuals are subject to the European asylum regime or a third-country-related protection regime and are residing in Germany. The sanction is based on an asylum or immigration law situation intended to counteract undesirable secondary migration within Europe (State Social Court of Saxony-Anhalt, Decision of August 2, 2018 – L 8 AY 2/18 B ER –, juris, para. 19; Oppermann in: Schlegel/Voelzke, jurisPK-SGB XII, 4th ed., Section 1a AsylbLG (as of January 14, 2025)), and thus not on any breach of duty by the benefit recipient. Therefore, in situations such as the present one, a restriction of entitlement beyond the six-month period stipulated in Section 14 Paragraph 1 AsylbLG is not permissible
The respondent filed an appeal with the Hessian State Social Court on July 4, 2025, against the decision served on him on June 6, 2025. In support of his appeal, he argues that, contrary to the Social Court's opinion, the determination of benefits under Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG) does not constitute a reduction of benefits based on conduct, but rather the amount of benefits stipulated by law for persons who have already acquired legal residence within the territory of the European Union. Furthermore, the commencement and termination of the so-called "status" depend on the applicants' conduct. By continuing to remain in the Federal Republic of Germany and submitting the asylum application, they have created the conditions that form the basis for benefits under the AsylbLG. Based on their residence permit for Greece, the applicants already have the possibility of legal residence in a European member state and do not require the protection of asylum in the Federal Republic of Germany. It must also be assumed that – regardless of detailed knowledge of the German social welfare system and specific entitlements to benefits – the applicants were aware that upon entering the Federal Republic, Germany and/or German authorities assumed responsibility for their subsistence. The applicants thus deliberately created a situation in which they could claim state benefits even though they already had an equivalent entitlement in Greece. A comparison of the type, extent, and amount of state support provided by the individual member states of the European Union does not justify a transfer from Greece to the Federal Republic. It cannot be assumed that the benefits under Section 1a Paragraph 1 and Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG) violate constitutional or EU law. Contrary to the opinion of the Social Court, setting the benefits at the level stipulated in Section 1a Paragraph 4 of the AsylbLG is not limited to a one-time application by Section 14 of the AsylbLG. The applicants have been receiving benefits at the full rate stipulated in Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) since August 27, 2024, meaning that no reduction has occurred. Furthermore, the benefits under Section 3 AsylbLG in the applicants' case constitute overpayments. In addition, Section 14 AsylbLG does not prevent a continuation of benefit reductions, but rather links them to a review of whether the conditions for such a reduction continue to be met. It is also expected that the applicants' asylum applications will be rejected. The appellant's immigration department does not routinely have access to data concerning travel documents and residence permits for administrative processing, as the immigration office and the immigration department are two separate agencies. The exchange of information essential for the respective case processing therefore does not occur automatically, but requires active notification. The immigration department only became aware of the applicants' residence permits for Greece through a notification dated September 24, 2024. According to the guidance document of the Federal Office for Migration and Refugees (BAMF) on the implementation of the identification and consideration of vulnerable persons in asylum proceedings, the applicants do not belong to this group. The fact that they have four minor children aged almost four, twelve, fifteen, and sixteen does not mean that the applicants or the entire family should be classified as vulnerable per se. The Federal Administrative Court clarified in its judgment of April 16, 2025 (BVerwG, Case No.: 1 C 18.24) that there is no inhumane or degrading reception situation for refugees in Greece. The applicants have not yet presented any information regarding their living conditions in Greece. Accordingly, their insinuations regarding possible vulnerability or inadequate living conditions in Greece are merely unproven assertions. The applicants' reasons for entering the Federal Republic of Germany are unknown, as they have not provided any information on this matter. Consequently, there is no indication of any possible reasons why a return to Greece should be deemed unreasonable.
The respondent requests (in essence) that
the decision of the Social Court of June 4, 2025 be overturned.
The applicants request that
the respondent's appeal be dismissed.
They point out that they are a vulnerable group. According to the decision of the Federal Administrative Court of April 16, 2025, deportation to Greece would be unlawful. In this regard, reference should also be made to the decisions of the Aachen Administrative Court of July 25, 2025, file number 10 L 645/25.A, and of July 29, 2025, file number 10 L 647/25.A, as well as to the decision of the Hanover Administrative Court of May 5, 2025, file number 15 B 2836/25.
By decision of July 22, 2025, the chairman of the adjudicating senate dismissed as inadmissible the respondent's application to suspend the enforcement of the decision of the Social Court of June 4, 2025.
For further details of the facts and the legal arguments, the Senate refers to the administrative files of the respondent, including the foreigner files, the court files and the administrative files of the BAMF that were consulted and formed the basis of the decision.
II.
The admissible appeal is unfounded.
The Social Court was correct in ordering the suspensive effect of the objection lodged on May 4, 2025 against the decision of the respondent dated April 24, 2025, by decision of June 4, 2025.
The application for preliminary legal protection is admissible.
The applicants' request for an order suspending the effect of the objection to the decision of April 24, 2025, pursuant to Section 86b Paragraph 1 of the Social Courts Act (SGG), is admissible in particular because, according to Section 11 Paragraph 4 Numbers 1 and 2 of the Asylum Seekers' Benefits Act (AsylbLG), an objection against an administrative act by which a benefit under this Act is wholly or partially withdrawn or the benefit award is revoked (No. 1) or a restriction of the entitlement to benefits is established pursuant to Section 1a or Section 11 Paragraph 2a (No. 2), does not have suspensive effect. With the contested decision of April 24, 2025, the respondent revoked the decision of August 27, 2024 with regard to the amount of benefits as of May 1, 2025, and determined a restriction of the benefit entitlement pursuant to Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) for the applicants for the period from May 1, 2025 to August 31, 2025.
The application is also justified.
The suspensive effect of the objection against the decision of April 24, 2025 was to be ordered pursuant to Section 86b Paragraph 1 Sentence 1 No. 2 of the Social Court Act (SGG).
The balancing of interests required when deciding on the granting of suspensive effect pursuant to Section 86 Paragraph 1 Sentence 1 No. 2 of the Social Court Act (SGG) must encompass all public and private interests that are relevant in the individual case. The prospects of success on the merits, i.e., in particular the legality or illegality of the administrative act, are of considerable importance insofar as they can be assessed within the scope of the summary review required in preliminary legal protection proceedings (cf. regarding the specifically disputed standard for granting suspensive effect: Hessian State Social Court, decision of March 26, 2007, L 9 AS 387/07 ER and decision of November 28, 2024, L 4 AY 18/24 B ER, as well as Keller, in: Meyer-Ladewig/Keller/Schmidt, SGG, Commentary, 14th edition 2023, Section 86b, marginal notes 12 et seq.). The suspension of enforcement must be ordered without further ado if the decision is manifestly unlawful (and the action admissible), whereas it is precluded if the decision is manifestly lawful (or the action manifestly inadmissible). Particularly when the prospects of success are uncertain, a comprehensive balancing of interests must take place, within which the fundamental rights of those affected must be considered, insofar as they are impacted by the decision. Finally, the assessment derived from the statutory provision for regular immediate enforcement must be taken into account.
In this case, the public interest in enforcing the decision of April 24, 2025, must yield to the applicants' interest in a stay of execution. There is no public interest in enforcing an unlawful administrative act.
The legal basis for the administrative act in dispute is Section 9 Paragraph 4 No. 1 AsylbLG in conjunction with Section 45 Paragraph 1 SGB X and Section 1a Paragraph 4 Sentence 2 AsylbLG together with Section 14 Paragraph 2 AsylbLG.
Insofar as an administrative act that establishes or confirms a right or a legally significant advantage (a favorable administrative act) is unlawful, it may, according to Section 45 Paragraph 1 of the German Social Code, Book X (SGB X), even after it has become legally binding, only be revoked in whole or in part, with effect for the future or for the past, subject to the restrictions of Section 45 Paragraphs 2 to 4 of the SGB X. The decision of August 27, 2024, which provided for the granting of benefits to the applicants under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) and was revoked by the contested decision of April 24, 2025, is a favorable administrative act that initially opens the scope of application of Section 45 of the SGB X.
Pursuant to Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG), persons entitled to benefits under Section 1 Paragraph 1 Number 1, 1a, or 5, for whom, in deviation from the standard jurisdiction under Regulation (EU) No. 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in a Member State by a third-country national or stateless person (OJ L 180, 29.6.2013, p. 31), another Member State or a third country participating in the distribution mechanism and applying Regulation (EU) No. 604/2013 is responsible following a distribution by the European Union, shall also only receive benefits in accordance with Paragraph 1. The first sentence applies accordingly to persons entitled to benefits under Section 1 Paragraph 1 Number 1 or 1a who have already received benefits from another Member State of the European Union or from a third country participating in the distribution mechanism within the meaning of the first sentence. 1
1. international protection or
2. a right of residence has been granted for other reasons,
if the international protection or the right of residence granted for other reasons continues to exist.
The Senate can leave open the question of whether the decision of April 24, 2025, is unlawful because the return of the person concerned to the country granting protection is impossible or unreasonable for factual and legal reasons (Senate decision of June 2, 2020, L 4 AY 7/20 B ER, cited in juris, para. 27; see also Lower Saxony-Bremen Higher Social Court, decision of June 12, 2025, L 8 AY 24/25 B ER, cited in juris, referring to Bavarian Higher Social Court, decision of August 26, 2021, L 19 AY 70/21 B ER; North Rhine-Westphalia Higher Social Court, decision of March 27, 2020, L 20 AY 20/20 B ER; Schleswig-Holstein Higher Social Court, decision of June 15, 2020, L 9 AY 78/20 B ER). Saxony-Anhalt, decision of 25 February 2025, L 8 AY 20/24 B ER).
The decision of April 24, 2025, is no longer covered by Section 14 of the Asylum Seekers' Benefits Act (AsylbLG) with regard to a further reduction in benefits pursuant to Section 1a Paragraph 4 Sentence 2 AsylbLG beyond the six months already imposed by the decision of October 10, 2024 (here: from May 1, 2025 to August 31, 2025). This violates the principle of proportionality.
According to Section 14 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG), restrictions on benefits under this law are to be limited to six months. Thereafter, the restriction is to be continued if the breach of duty persists, provided the legal requirements for the restriction continue to be met (Section 14 Paragraph 2 AsylbLG).
Section 14 of the Asylum Seekers' Benefits Act (AsylbLG) applies to all circumstances described in Section 1a of the AsylbLG (Spitzlei in BeckOK Ausländerrecht, Kluth/Heusch, Commentary, 45th Edition, as of July 1, 2025, Section 14 AsylbLG, marginal note 2). Since the benefit restriction ends by operation of law, the authorities are required to conduct a mandatory review after this period to determine whether the restriction can be maintained. The continuation of the benefit restriction requires, first and foremost, that the legal prerequisites for the restriction continue to be met after the six-month period has expired; that is, the circumstances on which the restriction was based must still exist. However, simply fulfilling the legal prerequisites for the restriction is not sufficient for its continuation. According to the wording of Section 14, paragraph 2 of the AsylbLG, the breach of duty must also continue. As the Social Court correctly states, the restriction of benefits under Section 1a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) is initially linked to a specific formal status – the asylum-related responsibility of another state for the benefit recipient. The reduction therefore does not sanction any specific misconduct on the part of the benefit recipient; rather, it is based on the fact that these individuals are subject to the European asylum regime or a third-country-related protection regime and are residing in Germany. What is sanctioned is an asylum or immigration-related situation intended to counteract undesirable secondary migration within Europe (Oppermann in: Schlegel/Voelzke, jurisPK-SGB XII, 4th edition, as of June 3, 2025, Section 1a AsylbLG, marginal note 133). This raises the question of whether there is even a breach of duty to which Section 14 Paragraph 2 of the AsylbLG can refer.
Even if, behind this formal point of reference, a breach of duty on the part of the benefit recipient could be seen in the fact that he does not travel to the state responsible for his asylum procedure or granting him protection (see: Cantzler, Asylbewerberleistungsgesetz [Asylum Seekers' Benefits Act], Commentary, 1st edition 2019, § 14 AsylbLG para. 19; contra: Social Court Landshut, decision of October 17, 2018, S 11 AY 153/18 ER; differentiating, taking into account the higher court case law, Oppermann, ibid., § 14 AsylbLG para. 21 et seq.), this, in the opinion of the Senate, requires at least a renewed individual examination of the facts and the law based on a strict application of the principle of proportionality within the framework of the summary examination in the proceedings for preliminary legal protection.
This is already evident from the legislative materials themselves (Bundestag printed matter 18/6185, pp. 47, 48 on item 12): “The newly worded Section 14, paragraph 1, stipulates that restrictions on benefits under the Asylum Seekers' Benefits Act (AsylbLG) are initially limited to a period of six months. Therefore, after this period, it is necessary to review whether the restriction can be maintained. Paragraph 2 subsequently requires the authority to conduct a new review to determine whether the breach of duty continues and whether the conditions for a restriction of benefits are still met. The principle of proportionality dictates that past misconduct, which can no longer be changed, or even misconduct that has already been corrected, should not continue indefinitely as a sanction. According to paragraph 2, the restriction of benefits may therefore only be maintained if the breach of duty continues.”
Within the framework of the proportionality assessment, constitutional limits must also be observed, and conduct must be assessed as a breach of duty and sanctioned accordingly. This also applies in light of the decision of the Federal Constitutional Court of November 5, 2019, 1 BvL 7/16, according to which the constitutionally guaranteed right to a dignified minimum standard of living applies to everyone. It is fundamentally inalienable and is not forfeited even by supposedly "undignified" conduct (Federal Constitutional Court, ibid., para. 120). According to the Federal Constitutional Court's decision, the social welfare principle requires state support and care even for those whose personal and social development is hindered due to personal weakness or guilt, incapacity, or social disadvantage. This obligation to secure the minimum subsistence level is therefore not to be relativized by the achievement of other objectives (Federal Constitutional Court, loc. cit., para. 120), in particular not by migration policy objectives (Federal Constitutional Court, judgment of 18 July 2012, 1 BvL 10/10, 1 BvL 2/11, E 132, 134 <173 para. 95>). This also applies with regard to the legislative intent of Section 1a of the Asylum Seekers' Benefits Act (AsylbLG), which is to indirectly induce benefit recipients to comply with their obligation to leave the country through sanctions (see also: the adjudicating Senate, decision of March 31, 2020, L 4 AY 4/20 B ER; Oppermann, loc. cit., Section 14 AsylbLG, marginal note 21 et seq.; Adolph in: Adolph, SGB II, SGB XII, AsylbLG, Commentary, as of July 2025, Section 14 AsylbLG, marginal note 13).
The summary review in the preliminary injunction proceedings reveals that the respondent has failed to conduct a renewed individual assessment of the facts and the law based on a strict application of the principle of proportionality, which requires a balancing of individual interests (securing a minimum standard of living) and the public interest (preventing abuse). Based on the current state of affairs, the continuation of the restriction of benefits appears disproportionate. The decision of April 24, 2025, merely states in a formulaic manner that "from our perspective, there are no indications that would make the return of the Timur family to Greece legally or factually impossible or unreasonable." The information contained in the BAMF file regarding the skin condition of one of the applicants' children, along with the alleged lack of medical care in Greece (transcript of the hearing of applicant no. 2 on the admissibility of the asylum application on May 19, 2024, pp. 173ff of the BAMF file), is not taken into account in any way. In this respect, the respondent is subject to the principle of official investigation, even in administrative proceedings. The fact that the applicants are still residing in Germany does not support the continued reduction of benefits. In this respect, they are merely making use of the residence permit granted to them, which in itself cannot be considered a breach of duty (cf. in the context of Section 2 AsylbLG BSG, judgment of June 17, 2008, B 8/9b AY 1/07 R, cited according to juris, according to which neither the filing of an asylum application itself nor the foreigner's remaining during the asylum procedure until a negative decision becomes legally binding constitutes an abuse of rights).
The decision on costs is based on a corresponding application of Section 193 of the Social Court Act (SGG).
After all this, the applicants were also to be granted legal aid for the appeal proceedings, pursuant to Section 73a of the Social Court Act (SGG) in conjunction with Section 114 of the Code of Civil Procedure.
This decision is final and cannot be appealed pursuant to Section 177 of the Social Court Act (SGG).
