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 November 20, 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 April 30, 2026, and subject to the right of recovery, from November 12, 2025, until a final and binding decision is reached on the applicant's objection of November 12, 2025, against the decision of November 11, 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, who according to his own statement was born on xxx, is a national of Guinea-Bissau and belongs to the Fulani people. He entered the Federal Republic of Germany via Malta on November 22, 2022, and submitted an asylum application on February 6, 2023.
The applicant was assigned to the respondent for accommodation on February 20, 2023. Since then, he has been living in communal accommodation as defined in Section 53 Paragraph 1 of the Asylum Act (AsylG). The respondent first granted him ongoing benefits pursuant to Sections 3, 3a Paragraphs 1 and 2 of the Asylum Seekers' Benefits Act (AsylbLG) at the rate of standard benefit level 2 (a total of €369.00 per month from March 2023) by decision dated February 21, 2023, effective February 20, 2023. As of January 1, 2024, following a change in the standard benefit rates, ongoing benefits at standard benefit level 2 were granted at a rate of €413.00 per month (amendment decision dated February 26, 2024).
After hearing the applicant, the Federal Office for Migration and Refugees (BAMF) rejected the applications for refugee status, asylum, and subsidiary protection as manifestly unfounded in a decision dated September 5, 2024, and determined that there were no grounds for prohibiting deportation under Section 60, paragraphs 5 and 7, sentence 1 of the Residence Act. The Magdeburg Administrative Court rejected an application for an order suspending the deportation order pursuant to Section 80, paragraph 5 of the Code of Administrative Court Procedure (VwGO) in a final and unappealable decision dated September 24, 2024 (Case No. 2 B 262/24 MD). The deportation order has been enforceable since October 9, 2024.
By a status notification dated November 4, 2024, the immigration authority informed the respondent of a violation of the duty to cooperate pursuant to Section 15 Paragraph 2 No. 1 of the Asylum Act. The applicant had only cooperated insufficiently in obtaining a passport. After a hearing, the respondent revoked the decision of February 26, 2024, pursuant to Section 48 of the German Social Code, Book X (SGB X), with effect from December 1, 2024, by a decision dated November 21, 2024, and granted the applicant only limited benefits from December 1, 2024, until May 31, 2025 (in the amount of €206.00 in December 2024 and in the amount of €197.00 from January 2025). After the applicant was issued the so-called SocialCard on December 11, 2024, the respondent, by means of a "Notice of Amendment to Ongoing Benefits under the Asylum Seekers' Benefits Act" dated December 12, 2024, revoked the decision of November 21, 2024, effective January 1, 2025, pursuant to Section 48 of the German Social Code, Book X (SGB X), and granted the applicant reduced benefits of €197.00 per month for the months of January to May 2025, pursuant to Section 1a of the Asylum Seekers' Benefits Act (AsylbLG). The applicant, represented by counsel, filed an objection to this decision on January 12, 2025, and on January 21, 2025, applied to the Magdeburg Social Court for preliminary legal protection (Case No. S 31 SO 5/25 ER), requesting the granting of benefits at the statutory rate. The application was unsuccessful (decision of the adjudicating chamber dated May 28, 2025). The appeal filed by the applicant with the Higher Social Court of Saxony-Anhalt is pending there under file number L 8 AY 21/25 B ER. A lawsuit against the interim decision on the objection dated June 17, 2025, is pending before the Social Court under file number S 31 SO 45/25.
In a further status notification dated April 16, 2025, the immigration authority again reported a violation of the respondent's obligation to cooperate in obtaining a passport. Following a hearing, the respondent, by decision dated May 21, 2025, again granted the applicant only reduced benefits pursuant to Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) for the period from June 1, 2025, to November 30, 2025, in the amount of €197.00 per month. The respondent stated that the applicant, despite being requested to do so, had still failed to comply with his obligation to cooperate in obtaining a passport and had not submitted any verifiable evidence of his cooperation in clarifying his identity. The applicant, through his legal representative, filed an objection to this decision on June 3, 2025, and on June 6, 2025, filed another application for preliminary legal protection with the Magdeburg Social Court (Case No. S 31 AY 38/25 ER). By decision of July 17, 2025, the adjudicating chamber rejected the application. The appeal against this decision is pending before the Higher Social Court of Saxony-Anhalt under file number L 8 AY 28/25 B ER. A lawsuit against the subsequent decision on the objection, issued on July 23, 2025, is pending before the Social Court under file number S 31 SO 75/25.
On November 7, 2025, a hearing was held at the Higher Social Court of Saxony-Anhalt to discuss the facts and legal situation in the pending proceedings L 8 AY 21/25 B ER and L 8 AY 38/25 B ER. According to the minutes of the hearing, the respondent declared his willingness to grant full benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) from November 2025.
The respondent implemented this with a decision dated 11 November 2025 and granted the applicant benefits in accordance with Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) in the amount of the standard benefit level 2 (397.00 € per month) "from 1 November 2025 until further notice".
On November 12, 2025, the applicant filed an objection to the decision of November 11, 2025, and simultaneously requested preliminary legal protection from the Magdeburg Social Court. He argues that he is entitled to benefits according to standard benefit level 1. He contends that the provisions of Sections 3, 3a Paragraph 1 No. 2b, and Paragraph 2 No. 2b of the Asylum Seekers' Benefits Act (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 GG, and contravene the general principle of equality. In addition to numerous first-instance decisions by social courts in preliminary injunction 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 that decision, the 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 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 statutory amount 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 November 12, 2025, against the respondent's decision of November 11, 2025, taking into account the legal opinion of the court.
The respondent requests that
the application be rejected.
He argues that the applicant is single and lives in communal accommodation as defined in Section 53 Paragraph 1 of the Asylum Act (AsylG), meaning that the provision of benefits for necessary personal needs as well as the necessary needs at standard benefit level 2 pursuant to Section 3a Paragraph 1 No. 2 b and Paragraph 2 No. 2 b of the Asylum Seekers' Benefits Act (AsylbLG) is based on a decree dated March 29, 2023. The Ministry of the Interior and Sport of the State of Saxony-Anhalt decided that the decision of the Federal Constitutional Court (BVerfG) 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 accommodation. No legal provision exists that extends the binding effect of the Federal Constitutional Court's decision beyond its subject matter. Regardless of how the constitutionality of the decision is assessed, the administration is bound by applicable law.
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 their rights. 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 November 11, 2024, was initially issued in a formally lawful manner. In particular, no prior hearing pursuant to Section 24 of the German Social Code, Book X (SGB X) was required.
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 needs-based rates according 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 resources 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, Soz 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 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 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 April 30, 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.
