DECISION
in the proceedings
xxx,
– Applicant –
Legal representative: Attorney Sven Adam
, Lange-Geismar-Str. 55, 37073 Göttingen
against
City of Stuttgart – Office for Social Affairs and Participation,
represented by the Mayor,
Eberhardstr. 33, 70173 Stuttgart
– Respondent –
The 2nd Chamber of the Stuttgart Social Court decided on November 4, 2025 in Stuttgart through Judge xxx (additional supervising judge) without oral proceedings:
The respondent is ordered by way of preliminary legal protection to grant the applicant basic benefits under the Asylum Seekers' Benefits Act in the legally prescribed amount for the period from 22 October 2025 to 30 September 2026.
The respondent must reimburse the applicant's extrajudicial costs.
The applicant is granted legal aid with the appointment of attorney Sven Adam from Göttingen. The appointment is subject to the conditions applicable to an attorney practicing within the district of the Stuttgart Social Court. The applicant is not required to pay any installments towards the court costs.
REASONS
I.
The applicant requests the continued provision of basic benefits under the Asylum Seekers' Benefits Act from 22.10.2025.
She was born in 1978 and is a citizen of the People's Republic of China. She entered the Federal Republic of Germany in May 2024 and applied for asylum that same month. By decision dated November 5, 2024, the Federal Office for Migration and Refugees (BAMF) rejected the applicant's asylum application as inadmissible. Deportation to Spain was ordered. The Spanish authorities had declared their responsibility for processing the asylum application by letter dated November 4, 2024. No grounds for prohibition of deportation existed under Section 60, paragraphs 5 and 7, sentence 1 of the German Residence Act (AufenthG). The applicant's action against the decision of November 5, 2024, was dismissed by the Administrative Court of Karlsruhe by judgment dated December 20, 2024.
By decision dated 22 August 2025, the respondent granted the applicant basic benefits under the Asylum Seekers' Benefits Act (AsylbLG) for the months of August and September in the amount of €1,003.41 per month.
By letter dated August 27, 2025, the respondent informed the applicant that it intended to discontinue the provision of benefits under the Asylum Seekers' Benefits Act (AsylbLG) as of September 30, 2025, and that no further benefits under the AsylbLG would be granted from October 1, 2025. The applicant was subject to an exclusion from benefits because her asylum application had been rejected as inadmissible, deportation had been ordered pursuant to Section 34a Paragraph 1 Sentence 1, second alternative, of the Asylum Act, and departure was legally and factually possible according to the Federal Office for Migration and Refugees (BAMF).
The applicant stated that she still required benefits. She did not know how she would live.
By decision dated 13 October 2025, the applicant was subsequently granted bridging benefits for the period from 1 October 2025 to 14 October 2025.
The applicant, represented by legal counsel, filed an objection to the decision of October 13, 2025, by letter dated October 20, 2025. The exclusion from benefits pursuant to Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG), which was implemented here from October 1, 2025, was contrary to both constitutional and European law (as further explained).
Also on October 20, 2025, the applicant, represented by counsel, filed an application for preliminary legal protection with the Stuttgart Social Court. In support of her application, she reiterated her arguments from the objection proceedings. The applicant also submitted an application for legal aid.
The applicant requests, in a suitably worded manner,
that the respondent be ordered to grant her basic benefits under the Asylum Seekers' Benefits Act in the legally prescribed amount, also for the period from 1 October 2025 onwards, by way of preliminary legal protection.
The respondent requests that
the application be rejected.
The applicant is no longer entitled to benefits according to § 1 para. 4 sentence 1 no. 2 AsylbLG.
II.
1. The application for preliminary legal protection is admissible and well-founded.
a) Pursuant to Section 86b Paragraph 2 Sentence 1 of the Social Court Act (SGG), the court of first instance may, upon application, issue a preliminary injunction if there is a risk that a change in the existing state of affairs could frustrate or significantly impede the applicant's exercise of 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 (Section 86b Paragraph 2 Sentence 2 SGG). Grounds for an injunction exist if the issuance of the preliminary injunction appears necessary to avert substantial disadvantages (Section 86b Paragraph 2 Sentence 2 SGG).
b) A prerequisite for a preliminary injunction is that, after weighing the interests involved and taking into account the circumstances of the individual case, it is unreasonable to expect the applicant to await the decision in the main proceedings (Keller in: Meyer-Ladewig/Keller/Leitherer/Schmidt, SGG, 14th ed. 2023, § 86b para. 28). The prospects of success of the main legal remedy (claim for an injunction) and the urgency of the desired preliminary regulation (ground for an injunction) must be substantiated (§ 86b para. 2 sentence 4 SGG in conjunction with § 920 para. 2 ZPO). In principle, it does not raise any constitutional concerns if the courts, when assessing the factual and legal situation based on a summary examination, orient themselves towards the prospects of success in the main proceedings (Federal Constitutional Court, 2 May 2005, 1 BvR 569/05). If the outcome of the main proceedings is uncertain, for example if a complete clarification of the factual and legal situation is not possible in the preliminary proceedings, a decision must be made by weighing the consequences as to which party can more reasonably be expected to wait for the decision in the main proceedings (LSG Hessen of 13.03.2008, L 7 SO 100/07 ER).
c) Based on the standards presented, a summary examination reveals a claim for an injunction with regard to the period from October 2025 onwards.
aa) The conditions for exclusion from benefits pursuant to Section 1 Paragraph 4 Sentence 1 No. 2 AsylbLG are unlikely to be met.
According to this provision, persons entitled to benefits whose asylum application has been rejected as inadmissible by a decision of the BAMF pursuant to Section 29 Paragraph 1 No. 1 in conjunction with Section 31 Paragraph 6 of the Asylum Act, for whom deportation has been ordered pursuant to Section 34a Paragraph 1 Sentence 1 Second Alternative of the Asylum Act, and for whom, according to the determination of the Federal Office for Migration and Refugees, departure is legally and factually possible, even if the decision is not yet final, are not entitled to benefits under the Asylum Seekers' Benefits Act (AsylbLG).
The BAMF's determination, required by the regulation, that departure is legally and factually possible is lacking. The BAMF's decision of November 5, 2024, contains no such determination. The BAMF merely stated that there were no prohibitions on deportation pursuant to Section 60, paragraphs 5 and 7, sentence 1 of the Residence Act. However, this is not sufficient, as Section 1 Paragraph 4 Sentence 1 Number 2 of the Asylum Seekers' Benefits Act (AsylbLG) expressly requires the further finding that (even voluntary) departure is legally and factually possible (cf. in this regard and below also Social Court Heilbronn of 22 September 2025, S 15 AY 1887/25 ER, para. 25 juris with reference to Higher Social Court Lower Saxony-Bremen of 13 June 2025, L 8 AY 12/25 B ER; Social Court Neuruppin of 12 August 2025, S 27 AY 14/25 ER; Frerichs, in: Schlegel/Voelzke, juris-PK-SGB XII, 4th edition 2024, as of 9 April 2025 on Section 1 AsylbLG paras. 206.7 and 206.8 also with further references). This is supported, for example, by the colloquial use of the word "departure," which is most readily associated with the self-determined leaving of a country's territory (Lower Saxony-Bremen State Social Court, loc. cit., para. 21 juris). This interpretation is further supported by the fact that, to implement the currently applicable Section 1 Paragraph 4 Sentence 1 No. 2 of the Asylum Seekers' Benefits Act (AsylbLG), a new clause is to be inserted into the so-called Dublin decisions, confirming that departure is legally and factually possible (Hessian State Social Court, judgment of October 1, 2025, L 4 AY 5/25 B ER, para. 44 juris, referring to Parliamentary Document 21/417, p. 10, dated June 5, 2025, with regard to the explanatory letter from the Federal Ministry of the Interior dated February 7, 2025).
The missing statement here is not a mere formality, as it is quite doubtful whether voluntary departure without corresponding support from the Federal Office for Migration and Refugees (BAMF) is even legally possible. Self-initiated departure to the responsible state under the Dublin Agreement requires a complex administrative procedure. Among other things, it requires the approval of the BAMF, and the procedure is only possible up to four weeks before the transfer deadline (see in detail the BAMF's Dublin Service Instructions, as of February 2023, pp. 163 ff., last accessed on October 8, 2025 at https://www.proasyl.de/wp-content/uploads/2023-06-12-BAMF-Dienstanweisung-Dublin.pdf ).
The transfer process coordinated by the BAMF takes place in cooperation with the immigration authorities, the other member state and the Federal Police (Hessian State Social Court of 01.10.2025, L 4 AY 5/25 B ER, para. 46 juris with reference to BT-Drs. 21/417, p. 6, 10).
Therefore, without the BAMF's cooperation, the applicant cannot simply end the exclusion or restriction of benefits by voluntarily leaving the country. This supports the argument that, in accordance with the wording of the exclusion clause, a corresponding determination by the BAMF should be required.
bb) Based on a preliminary review, the applicant appears to be entitled in principle to basic benefits under the Asylum Seekers' Benefits Act (AsylbLG). This entitlement likely arises from Section 1 Paragraph 1 No. 5 of the AsylbLG, as the applicant is likely still residing in Germany and is subject to an enforceable obligation to leave the country.
A foreigner is obligated to leave the country if they do not possess, or no longer possess, a required residence permit and do not have, or no longer possess, a right of residence under the EEC/Turkey Association Agreement, pursuant to Section 50 Paragraph 1 of the Residence Act. The enforceability of the obligation to leave is regulated in Section 58 Paragraph 2 of the Residence Act. Since no legal arguments have been presented regarding the appeal against the judgment of the Karlsruhe Administrative Court, which upheld the decision of the Federal Office for Migration and Refugees (BAMF) dated November 5, 2024, a summary review leads to the conclusion that the BAMF decision is legally binding and therefore enforceable pursuant to Section 58 Paragraph 2 Sentence 2 of the Residence Act.
If an asylum application has been rejected and the residence permit for the purpose of conducting asylum proceedings therefore expires, and the person concerned is still in Germany, he belongs to the group of persons entitled to benefits pursuant to Section 1 Paragraph 1 No. 5 of the Asylum Seekers' Benefits Act (Leopold in Grube/Wahrendorf/Flint, SGB XII with Asylum Seekers' Benefits Act, 8th edition 2024, Section 1 Asylum Seekers' Benefits Act, marginal note 58).
d) There is also a claim for an injunction. The case concerns basic benefits under the Asylum Seekers' Benefits Act (AsylbLG) that have been rejected in full; these are benefits intended to guarantee a dignified minimum standard of living. The applicant is currently unable to meet her corresponding needs on her own. Therefore, there is clearly an urgent need for action.
e) The respondent's obligation to provide benefits in these preliminary injunction proceedings extends until September 30, 2026. In the context of a preliminary injunction, a maximum benefit period of 12 months is generally to be set (see Lower Saxony-Bremen Higher Social Court, judgment of August 17, 2017, L 8 AY 17/17 B ER, para. 4 juris). The applicant's interest in preliminary legal protection is thus satisfied, and the respondent is not unduly bound (see Lower Saxony-Bremen Higher Social Court, judgment of April 9, 2020, L 8 AY 4/20 B ER, para. 41 juris). Contrary to the assumption of the applicant's legal representative, the decision of October 13, 2025, likely only governs bridging benefits for the period from October 1, 2025, to October 14, 2025, and does not contain a denial of basic income support benefits from October 1, 2025, onward. A corresponding decision by the respondent has likely only been announced and is still pending. Since the further course of the proceedings is unpredictable, a benefit obligation until September 30, 2026, therefore appears appropriate.
2. The decision on costs is based on a corresponding application of Section 193 of the Social Court Act (SGG).
3. The applicant is also entitled to the granting of legal aid to the extent indicated in the operative part of the judgment.
Pursuant to Sections 73a of the Social Court Act (SGG) and 114 of the Code of Civil Procedure (ZPO), a party who, due to their personal and financial circumstances, cannot afford the costs of litigation, or can only afford them in part or in installments, is entitled to legal aid upon application, provided that the intended legal action or defense has a reasonable prospect of success and does not appear frivolous. In accordance with Section 115 of the Code of Civil Procedure, the party must utilize their income and assets in accordance with the statutory provisions.
Since the applicant was until recently receiving basic benefits under the Asylum Seekers' Benefits Act (AsylbLG), now has no income whatsoever and her available assets are less than €10,000 (see Section 115 of the Code of Civil Procedure (ZPO) in conjunction with Section 90 of the Social Code, Book XII (SGB XII) in conjunction with Section 1 of the Ordinance implementing Section 90 Paragraph 2 No. 9 of the Social Code, Book XII (SGB XII)), she is unable, due to her personal and economic circumstances, to pay for the legal dispute from her own financial resources.
Taking into account the above considerations, the application also promises sufficient prospects of success and is not frivolous.
The restriction on the appointment of counsel arises from Section 121 Paragraph 3 of the Code of Civil Procedure.
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