DECISION
in the appeal proceedings
xxx,
Legal representative:
Attorney Sven Adam,
Lange-Geismar-Straße 55, 37073 Göttingen
– Applicant and complainant –
against
Altmarkkreis Salzwedel,
represented by the District Administrator, Karl-Marx-Straße 32, 29410 Salzwedel
– Respondent and Appellant –
The 8th Senate of the State Social Court of Saxony-Anhalt in Halle decided on November 19, 2025, through the President of the State Social Court Dr. Kasten, the Judge at the State Social Court xxx and the Judge at the State Social Court xxx:
Upon the applicant's appeals, the decisions of the Magdeburg Social Court of May 28, 2025 and July 17, 2025 are set aside and the respondent is ordered by way of preliminary injunction to grant the applicant full basic benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act on a provisional basis from January 21, 2025 to May 31, 2025 and from June 6, 2025 to October 31, 2025.
The respondent shall reimburse the applicant for his necessary extrajudicial costs in both preliminary injunction proceedings for both instances.
The applicant is granted legal aid for both preliminary injunction proceedings, with the appointment of attorney Adam, Göttingen. No monthly installments from income or payments from assets are required.
REASONS
I.
The parties are in dispute in two preliminary injunction proceedings concerning higher benefits under the Asylum Seekers' Benefits Act (AsylbLG). Furthermore, the applicant is challenging the denial of legal aid for both first-instance proceedings.
The applicant, who entered Germany via Malta on November 25, 2022, is a national of Guinea-Bissau. Since he stated that he was born on [date redacted] in Pataque (Guinea-Bissau), he was temporarily taken into care as an unaccompanied minor refugee by the Trier Youth Welfare Office pursuant to Section 42a of Book Eight of the German Social Code (SGB VIII), and an age determination procedure pursuant to Section 42f SGB VIII was initiated on December 1, 2022. According to the forensic age assessment report from the Institute of Legal Medicine at the University of Mainz dated January 6, 2023, which was based on a physical, radiological, and dental examination conducted on December 21, 2022, the applicant was at least 19 years old at the time of the examination, but probably considerably older. The temporary custody was subsequently terminated on January 10, 2023. After reviewing the expert opinion, the Federal Office for Migration and Refugees (BAMF) subsequently used December 31, 2003 as the applicant's date of birth.
The applicant lodged an asylum request in Trier on December 14, 2022, and submitted a formal application for asylum in the Federal Republic of Germany on February 6, 2023. Since the deadline for transferring the applicant to Malta under the so-called "Dublin Procedure" had already expired at that time, the applicant was assigned to the respondent by order of the Central Reception Office for Asylum Seekers of the State of Saxony-Anhalt (ZASt) on February 20, 2023, pursuant to Section 50 Paragraph 4 in conjunction with Section 50 Paragraphs 2 and 6 of the Asylum Act, for the purpose of conducting the (national) asylum procedure and received a temporary residence permit.
On March 8, 2023, the respondent's immigration authority requested the Federal Office for Migration and Refugees (BAMF) to verify the authenticity of documents submitted from the applicant's home country and, if necessary, to correct his personal details. These documents consisted of an original Personal Birth Record ("Cédula Pessoal") and certified copies of a complete birth certificate ("Certidão de narrativa completa do registro de nascimento") and birth record ("Registro de nascimento"), both of which listed xxx as the date of birth. According to the BAMF's physical-technical examination dated December 12, 2023, the submitted documents, "Register Extract" and "Birth Register," appeared to be certified copies of original documents. It could not be determined whether the original documents had been altered or falsified. No authentic reference material exists for the "birth certificate" issued on September 21, 2022, in Boé (Guinea-Bissau). Therefore, the authenticity of these documents cannot be definitively established. The documents have been confiscated.
During his personal hearing with the Federal Office for Migration and Refugees (BAMF) on June 24, 2024, the applicant explained that he had come to Germany because he had been mistreated by his uncle's wife, who had threatened to kill him after he injured her son with a stone. His parents had died when he was a child, so he had grown up in his uncle's household and had never been allowed to attend school. At the age of 14, he left his home country in 2021, with the help of his older sister's husband to get to Europe. His sister had sent him his birth certificate, which he then submitted to the authorities. By decision dated September 5, 2024, the Federal Office for Migration and Refugees (BAMF) rejected the application for refugee status, asylum, and subsidiary protection as manifestly unfounded (points 1-3), determined that no grounds for prohibition of deportation existed (point 4), ordered the applicant to leave the country within one week of notification of the decision, and threatened deportation to Guinea-Bissau (point 5). It was assumed that the applicant would not face persecution under Section 3 of the Asylum Act upon return to his home country and would be able to secure his livelihood there. He had also completed a literacy course in Germany. On September 17, 2024, the applicant filed a lawsuit with the Magdeburg Administrative Court and simultaneously applied for an order suspending the deportation order pursuant to Section 80 Paragraph 5 of the Code of Administrative Court Procedure. By decision of September 24, 2024 (2 B 262/24 MD), the Administrative Court definitively rejected the application for preliminary legal protection against the deportation order to Guinea-Bissau. The applicant's superficial submissions provided no indication that he would face serious harm or persecution upon his return. Despite the country's difficult economic situation, it could not be assumed that he would suffer existential material hardship if he returned. He had not demonstrated any individual circumstances that would increase his risk.
The residence permit expired on September 24, 2024. The applicant has been subject to an enforceable deportation order since October 9, 2024. Due to the impossibility of deportation for factual or legal reasons, he received a temporary suspension of deportation on September 27, 2024, pursuant to Section 60a Paragraph 2 of the German Residence Act (AufenthG), which was valid until August 12, 2025.
The respondent, acting as the immigration authority, informed the applicant by letter dated September 27, 2024, that his temporary residence permit had expired by operation of law. At the same time, he requested that the applicant fulfill his obligations to cooperate pursuant to Section 82 Paragraph 1 of the Residence Act (AufenthG), comply with his passport obligation under Section 3 Paragraph 1 of the Residence Act, and obtain a valid passport, passport substitute, or other identity documents (birth certificate, marriage certificate, identity card, etc.) from his country of origin, or at least have his application for such documents certified. He was given a deadline of October 31, 2024, to do so. Failure to comply with his obligation to cooperate would result in a reduction of his benefits under the Asylum Seekers' Benefits Act (AsylbLG). The applicant subsequently stated on October 2, 2024, that he would not leave voluntarily, did not possess a valid passport, but had already cooperated in establishing his identity by submitting his birth certificate some time ago.
Following the aforementioned allocation by the Central Reception Facility (ZASt), the respondent granted the applicant benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) from February 20, 2023 (standard benefit level 2) until further notice, by decision dated February 21, 2023. In addition, he granted him benefits for education and participation in the amount of €72 annually for his football club membership fee. By amended decision dated February 26, 2024, he granted him benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) in the amount of €413 per month, effective January 2024.
After the applicant failed to comply with the immigration authority's request to cooperate in obtaining a passport, the respondent notified him by letter dated November 7, 2024, of the intended reduction of benefits pursuant to Section 1a of the Asylum Seekers' Benefits Act (AsylbLG), effective December 1, 2024. According to a file note dated November 19, 2024, the applicant informed the respondent that he did not possess any documents and had not yet applied for them. The respondent then issued a decision on November 21, 2024. This decision revoked the grant of benefits pursuant to Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) dated February 26, 2024, effective December 1, 2024, and granted only restricted benefits pursuant to Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) (for December 2024: €206; from January 2025: €197 per month), citing the applicant's lack of cooperation. He limited the restriction of entitlement to six months, until May 31, 2025, with reference to Section 14 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG). The applicant did not object to this.
Following the introduction of a payment card system on January 1, 2025, the respondent recalculated the benefits under Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) by means of an amended decision dated December 12, 2024, and granted the applicant these benefits in the amount of €197 per month from January to May 2025. The benefit decision of November 21, 2024, was to be revoked with effect from January 1, 2025, due to a significant change in the factual or legal circumstances pursuant to Section 48 of Book Ten of the German Social Code (SGB X). There were no objections to paying the benefits to the "SocialCard" starting in January. This decision superseded all previous decisions regarding the amount of benefits granted under the Asylum Seekers' Benefits Act (AsylbLG), insofar as they related to the same periods.
The applicant filed an objection by letter dated January 10, 2025 (received by the respondent on January 13, 2025).
On January 21, 2025, the applicant filed a request for preliminary legal protection with the Social Court (SG) Magdeburg and applied for legal aid (S 31 AY 5/25 ER). He argued that, according to the decision of the Federal Constitutional Court (BVerfG) of November 5, 2019, this sanction could not be constitutional. The provision of Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) was deemed unconstitutional because it violated the fundamental right to a dignified minimum standard of living (Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1 of the Basic Law [GG]). Furthermore, he stated that his identity had been established. He had already submitted an original birth certificate and an extract from the birth register, which had been retained by the Federal Police in Magdeburg.
The Social Court rejected the applicant's request for legal aid (decision of May 28, 2025). While the application for a preliminary injunction was admissible, the court found the decision of December 12, 2024, to be lawful upon summary review. The decision challenged by objection was merely a reiterative ruling without any regulatory content and therefore not subject to appeal. The entitlement to reduced benefits under Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) had already been definitively decided by a ruling of November 21, 2024. The decision of December 12, 2024, was based solely on the introduction of the payment card and involved a change in the payment method. Its regulatory content did not relate to the benefit reduction itself. The court further noted that the benefit reduction under Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) was also not objectionable. The applicant's identity has not been definitively established. Based on the findings of the age assessment, it was incumbent upon him to substantiate his claim of having been born in 2007. The submitted documents were merely certified copies, the authenticity of which could not be unequivocally verified. Further cooperation from the applicant was required to clarify the matter, which he failed to provide.
On June 17, 2025, the applicant filed an appeal with the Social Court (SG) against the decision served on him on June 2, 2025, regarding the denial of preliminary legal protection (L 8 AY 21/25 B ER) and the denial of legal aid (L 8 AY 22/25 B), and also applied for legal aid for the appeal proceedings. The Social Court forwarded the appeal to the Higher Social Court (LSG) of Saxony-Anhalt. In support of his appeal, the applicant refers to his previous submissions. He further argues that the decision of December 12, 2024, is not a so-called repetitive decision, but rather a decision subject to appeal. The original decision of November 21, 2024, was expressly revoked with effect from January 1, 2025. Furthermore, on June 17, 2025, the State Administrative Office issued a decision on the objection, rejecting his objection to the decision of December 12, 2024, not as inadmissible, but as unfounded. He filed a lawsuit against this decision with the Social Court (S 31 AY 45/25) on June 30, 2025, which has not yet been decided.
In proceedings L 8 AY 21/25 B ER, the applicant essentially requests that
the decision of the Social Court of Magdeburg of May 28, 2025 be overturned and that the respondent be ordered, by way of an interim injunction, to grant him the requested benefits in the statutory amount from the date of receipt of the application by the court, pending a final and binding decision in the main proceedings and taking into account the legal opinion of the court.
The respondent requests that
the appeal be dismissed.
He also refers to his arguments presented in the first instance as justification.
On April 23, 2025, the respondent, acting as the immigration authority, issued a further request to the applicant to obtain and submit an identity document. Specifically, the respondent again reminded him of his duty to cooperate and demanded that he fulfill his passport obligation by obtaining a passport, a passport substitute, or other identity documents (birth certificate, marriage certificate, identity card, etc.), or at least having his application for such documents certified. The passport obligation would only be fulfilled upon presentation of a valid passport or passport substitute. As a foreigner, he was obligated under Section 82 of the Residence Act (AufenthG) and Section 15 of the Asylum Act (AsylG) to cooperate in clarifying his identity and obtaining a passport substitute through the consular representation of his home country. Identity documents within the meaning of the regulations include all documents required for return travel. His duty to cooperate also included obtaining and submitting documents confirming his identity from his home country through relatives, friends, or authorities, and, if necessary, by engaging a trusted lawyer in his home country. He was given a deadline of May 22, 2025, to fulfill his duty to cooperate and was informed of the consequences of a restriction of his benefits pursuant to Section 1a of the Asylum Seekers' Benefits Act (AsylbLG). On the same day, the respondent heard the applicant regarding the restriction of benefits pursuant to Section 1a Paragraph 3 of the AsylbLG.
On May 8, 2025, the applicant appeared before the respondent and submitted a copy of the birth certificate that had already been retained.
By decision dated 21 May 2025, the respondent again granted the applicant benefits for the period from 1 June to 30 November 2025 with a restriction of entitlement pursuant to Section 1a Paragraph 3 AsylbLG.
The applicant objected on June 3, 2025, arguing that the regulation in Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) was clearly unconstitutional.
On June 6, 2025, the applicant again requested preliminary legal protection from the Social Court of Magdeburg and applied for legal aid (S 31 AY 38/25 ER). In support of his application, he reiterated his previous arguments regarding the unconstitutionality of Section 1a of the Asylum Seekers' Benefits Act (AsylbLG).
The Social Court rejected the applicant's application and also the granting of legal aid (decision of July 17, 2025). The respondent's decision of May 21, 2025, appeared lawful upon preliminary review. The applicant was not entitled to full benefits for the period from June 1 to November 30, 2025. He had not presented a passport or other valid travel document, therefore his stay in the Federal Republic of Germany could not be terminated by state measures. He had also not made sufficient efforts to obtain the documents or proof of identity necessary for obtaining a passport.
The applicant filed an appeal with the Social Court on July 23, 2025, against the decision served on him on July 20, 2025, regarding the denial of preliminary legal protection (L 8 AY 28/25 B ER) and the denial of legal aid (L 8 AY 29/25 B), and also applied for legal aid for the appeal proceedings. The Social Court forwarded the appeal to the Higher Social Court of Saxony-Anhalt. In support of his appeal, the applicant refers to his previous submissions.
In proceedings L 8 AY 28/25 B ER, the applicant essentially requests that
the decision of the Social Court of Magdeburg of July 17, 2025 be overturned and that the respondent be ordered, by way of an interim injunction, to grant him the requested benefits in the statutory amount from the date of receipt of the application by the court, pending a final and binding decision in the main proceedings and taking into account the legal opinion of the court.
The respondent requests that
the appeal be dismissed.
He also refers to his arguments presented in the first instance as justification.
The State Administrative Office rejected the applicant's objection to the decision of May 21, 2025, as unfounded (objection decision of July 23, 2025). The applicant filed a lawsuit against this decision with the Social Court (S 31 AY 75/25), which has not yet been decided.
The Senate held a joint hearing in both proceedings on November 7, 2025. At the hearing, the applicant's representative stated that the Guinea-Bissau embassy in Berlin had been closed since October 2020. Therefore, the applicant could not apply for a passport or passport substitute. To do so, he would have to travel abroad, which he was not permitted to do. The respondent countered that the applicant had thus far made no effort whatsoever to obtain travel documents for his return home. He had first indicated via email on October 30, 2025, that his country's representation in Berlin had been closed. For further details, please refer to the minutes of the hearing of November 7, 2025.
By decision dated 11 November 2025, the respondent granted the applicant full benefits again from 1 November 2025 in accordance with Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG).
By letter dated November 12, 2025, the applicant declared the proceedings L 8 AY 28/25 B ER to be concluded as of November 1, 2025.
For further details, reference is made to the court files and the administrative files of the respondent and the respondent's immigration authority, which were submitted as files. These were available to the Senate during the decision-making process.
II.
The applicant's appeals are successful.
1.
The applicant's appeals (L 8 AY 21/25 B ER and L 8 AY 28/25 B ER) regarding the rejection of preliminary legal protection pursuant to Section 173 of the Social Court Act (SGG) are admissible pursuant to Section 172, paragraphs 1 and 3, no. 1 of the SGG. The value of the subject matter of the appeals exceeds €750 in each case, as the applications seek the difference between the reduced benefits and basic benefits granted by decisions dated December 12, 2024, and May 21, 2025, respectively, for a period of approximately six months each.
The complaints are also justified. The respondent is provisionally obligated to pay benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) for the period from January 21, 2025 to May 31, 2025 and from June 6, 2025 to October 31, 2025.
The applicant is correctly pursuing his legal objective of receiving full benefits in the appeal proceedings by applying for preliminary injunctions. According to Section 86b Paragraph 2 Sentence 1 of the Social Court Act (SGG), a preliminary injunction may only be issued if the conditions of Section 86b Paragraph 1 SGG are not met. Section 86b Paragraph 1 SGG covers preliminary legal protection in purely contestable situations. In contrast, a preliminary injunction is permissible in cases where a combined action for annulment and performance is admissible in the main proceedings. Here, the applicant can only pursue his legal objective with combined actions for annulment and performance, seeking the annulment of the benefit-restricting decisions of December 12, 2024, and May 21, 2025, and the granting of benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG).
A purely substantive action for annulment would not fully address the applicant's need for legal protection. While the applicant was granted benefits from February 20, 2023, until further notice – i.e., indefinitely – by the decision of February 21, 2023, as amended by the amending decision of February 26, 2024, this does not, unlike a limited (e.g., monthly) or implied benefit grant. In principle, this would constitute a purely substantive challenge, leading to the admissibility of an application for an order suspending the enforcement of the decision pursuant to Section 86b Paragraph 1 No. 2 of the Social Court Act (SGG). However, this indefinite administrative act was revoked by the respondent with a legally binding decision of November 21, 2024. It is therefore insufficient to pursue legal protection solely through an action for annulment, since although the restrictions on entitlement can be eliminated after the reversal of the reduction notices of December 12, 2024, and May 21, 2025, the applicant is dependent on a benefit award from now on, as the permanent benefit award of February 21, 2023, as amended by the amending notice of February 26, 2024, is not currently reinstated.
The application for a preliminary injunction in proceedings L 8 SO 21/25 B ER is also admissible with regard to the need for legal protection. Contrary to the opinion of the Social Court, the decision of December 12, 2024, which is the subject of these proceedings, is not merely a reiterative ruling. An administrative act can only be classified as reiterative if it exclusively confirms the content of a previous decision without establishing a new, independent ruling (Engelmann in: Schütze, SGB X, 9th edition 2020, § 31 para. 57). This is not the case here.
The decision of December 12, 2024, does not merely reiterate the benefit amount already determined in the decision of November 21, 2024. Firstly, the respondent itself states that it has recalculated the benefits for the period in dispute. Secondly, it contains an independent provision by expressly revoking the benefit decision of November 21, 2024, effective January 1, 2025. Only the remaining provisions of the previous decision – namely, the revocation of the decision of February 26, 2024, and the granting of reduced benefits for December 2024 in the decision of November 21, 2024 – remain in effect. The revocation decision creates a new set of rules that goes beyond the content of the earlier ruling and has an independent legal effect.
This constitutes a contestable administrative act within the meaning of Section 31 of the German Social Code, Book X (SGB X). The respondent also proceeds on this basis, as the State Administrative Office rejected the applicant's objection to this decision not as inadmissible, but as unfounded, in its decision on the objection dated June 17, 2025.
The application for an interim injunction is therefore admissible and the necessary need for legal protection is also present.
In both proceedings, the applications for preliminary injunctions are also well-founded.
Pursuant to Section 86b Paragraph 2 of the Social Court Act (SGG), the court may issue a preliminary injunction 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), a prerequisite for a regulatory injunction is the demonstration of grounds for the injunction (the urgency of the regulation to avert substantial disadvantages) and of a claim for the injunction (the sufficient probability of a substantive claim for performance existing in the main proceedings). In principle, due to the provisional nature of the preliminary injunction, the final decision in the main proceedings should not be anticipated. In contrast to main proceedings, the standard of proof in preliminary injunction proceedings does not require the court to be fully convinced of the facts establishing the claim. This is explained by the nature of this procedure, which, due to the urgency of the decision, generally does not permit in-depth, potentially lengthy investigations. Therefore, in preliminary injunction proceedings, only a provisional ruling can be issued, lasting at most the duration of the main proceedings, which is not binding on the court hearing the main case.
The claim for and grounds for an injunction are deemed credible if the factual prerequisites are more likely than not. This requires that the evidence supporting the accuracy of the statements outweighs the evidence against them (see Keller in: Meyer-Ladewig/Keller/Schmidt, SGG, 14th edition 2023, § 86b para. 27, 41). Insofar as an interim injunction also anticipates the decision on the merits, stricter requirements apply to the substantiation of the claim for and grounds for the injunction, because, despite the applicant's legitimate interest in urgent judicial decisions, interim legal protection must not lead to a shift to preliminary injunction proceedings. A present and urgent emergency situation that makes an immediate decision unavoidable is required. Insofar as it concerns the safeguarding of a dignified existence, the courts must conclusively examine the factual and legal situation, or, if this is not possible, decide on the basis of a balancing of interests based on the facts known from a summary examination (cf. Federal Constitutional Court, decision of 12 May 2005 – 1 BvR 569/05 – juris para. 23).
Based on this, and following a summary examination of the current state of the facts and the legal arguments, the applicant can invoke both a claim for an injunction and grounds for an injunction in both proceedings.
There is a legal entitlement to an injunction. The prerequisites for entitlement to benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) are met for the periods in dispute, according to a preliminary review.
The applicant belongs to the group of persons entitled to benefits under Section 1 Paragraph 1 Numbers 4 and 5 of the Asylum Seekers' Benefits Act (AsylbLG). He is a foreigner, is actually residing in Germany, and has a temporary suspension of deportation pursuant to Section 60a of the Residence Act (AufenthG); moreover, he is subject to an enforceable obligation to leave the country.
Those entitled to benefits under Section 1 of the Asylum Seekers' Benefits Act (AsylbLG) receive, in accordance with Section 3 Paragraph 1 of the AsylbLG, benefits to cover their needs for food, accommodation, heating, clothing, health, care, and household goods and consumables (essential needs). In addition, they are granted benefits to cover their personal needs of daily life (essential personal needs).
The respondent is the competent authority for granting benefits under the Asylum Seekers' Benefits Act (AsylbLG) (§§ 10, 10a para. 1 AsylbLG, § 1 para. 1 no. 7 General Ordinance on Responsibilities for Municipalities and Districts for the Implementation of Federal Law [AllgZustVO-Kom] of 7 May 1994, last amended by Ordinance of 12 May 2021 [GVBl. LSA p. 284, 285]).
The applicant's entitlement to benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) was not to be restricted under Section 1a Paragraph 1 and Paragraph 3a of the Asylum Seekers' Benefits Act (AsylbLG) during the period specified in the judgment – contrary to the respondent's view.
Although the applicant was heard by letters dated November 7, 2024, and April 23, 2025, prior to the benefit restriction, it is irrelevant whether a proper hearing took place if the deadline for cooperation in the immigration authority's letter of request – as in this case on April 23, 2025 – had not yet expired.
The Senate has serious doubts as to whether the conditions for the benefit restrictions based on Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) in the decisions challenged here, dated December 12, 2024 and May 21, 2025, are met.
Thereafter, those entitled to benefits under Section 1 Paragraph 1 Numbers 4 and 5, for whom deportation cannot be carried out for reasons attributable to themselves, will only receive benefits in accordance with Paragraph 1 from the day following the enforceability of a deportation threat or deportation order. This means that until their departure or deportation is carried out, they will only receive benefits to cover their needs for food and accommodation, including heating, as well as personal hygiene and healthcare (Section 1a Paragraph 1 Sentence 2 AsylbLG). According to Section 14 Paragraph 1 AsylbLG, a restriction of entitlement under this law is to be limited to six months. According to Section 14 Paragraph 2 AsylbLG, the restriction of entitlement is to be continued thereafter if the breach of obligations continues, provided that the legal requirements for the restriction of entitlement continue to be met.
Because Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) is to be understood as a sanction provision, it must also be interpreted restrictively with regard to the guarantee of a dignified minimum standard of living under Article 1 of the Basic Law (GG) in conjunction with Article 20 Paragraph 1 GG (Bavarian State Social Court, Judgment of September 10, 2024 – L 8 AY 11/24 – juris para. 71; Saxon State Social Court, Decision of December 16, 2021 – L 8 AY 8/21 B ER – juris para. 28; Siefert, AsylbLG, 3rd ed. 2025, Section 1a para. 9). The sanction provision of Section 1a Paragraph 3 AsylbLG is linked to the violation of asylum or immigration law obligations by the benefit recipient. The indirect consequence of this breach of duty is the extended receipt of benefits for subsistence under the AsylbLG. The purpose of the benefit-related sanction for his conduct is to indirectly induce the benefit recipient to comply with his obligation to leave the country (Cantzler, AsylbLG, 2019, § 1a para. 4). The foreigner is obligated to cooperate in obtaining an identity document, a passport, or substitute travel documents. Failure to cooperate constitutes typical abuse of rights within the meaning of § 1a para. 3 sentence 1 AsylbLG (Federal Social Court [BSG], judgment of May 12, 2017 – B 7 AY 1/16 R – juris para. 15 regarding the predecessor provision of § 1a no. 2 AsylbLG aF).
The applicant is subject to an enforceable deportation order and therefore falls within the personal scope of application of Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) and not within the personal scope of application of the otherwise more specific provision of Section 1a Paragraph 5 Sentence 1 No. 4 of the AsylbLG, after the asylum procedure has been concluded (see Siefert, loc. cit., Section 1a Rn. 75). Furthermore, he possesses a temporary suspension of deportation pursuant to Section 60a of the Residence Act (AufenthG).
According to Section 48 Paragraph 3 Sentence 1 of the German Residence Act (AufenthG), a foreigner is obligated to cooperate in obtaining an identity document if they do not possess a valid passport or passport substitute. Furthermore, they are obligated to present, hand over, and surrender to the authorities responsible for enforcing the Residence Act, upon request, all documents, other records, and data carriers in their possession that may be relevant for determining and asserting a possibility of return to another country. Section 48 Paragraph 3 of the Residence Act aims to ensure that the foreigner fulfills the passport requirement (Section 3 Paragraph 1 of the Residence Act). Possession of a valid passport enables the authorities to readily establish the identity and nationality (Section 5 Paragraph 1 No. 1a of the Residence Act) as well as the holder's right of return. A valid passport issued by a state to its nationals constitutes a legally binding declaration under international law by the issuing state that the holder is its national. Under general international law, this state has an obligation towards the state of residence to take back the passport holder (Marx, Residence, Asylum and Refugee Law, 8th edition 2023, § 2 para. 77).
However, it cannot be established that the applicant is responsible for the lack of a passport or passport substitute. It is required that the reasons preventing the enforcement of deportation measures fall within the responsibility of the benefit recipient (see Federal Social Court, judgment of May 12, 2017 – B 7 AY 1/16 R – juris para. 17). In this respect, at least personal (in the sense of: own) misconduct on the part of the benefit recipient is required, as is expressly stated in the provision.
The duty to cooperate stipulated in Section 48 Paragraph 3 of the Residence Act (AufenthG) does not, in principle, demand anything unreasonable of the benefit recipient; however, they must be aware of what conduct is required of them and what options are available to them. While cooperating in obtaining exit documents as a prerequisite for departure is generally not in accordance with their wishes, but rather requires conduct contingent upon the outcome of asylum proceedings conducted according to the rule of law, and following an unsuccessful outcome, the benefit recipient, who is merely tolerated, is obligated to contribute to their departure to the extent within their control (Federal Social Court, Judgment of May 12, 2017 – B 7 AY 1/16 R – juris para. 34). However, the duty to cooperate in obtaining a passport must not exceed what is realistically feasible. The benefit recipient is not, in principle, responsible for the success of their cooperation. He must be able to (immediately) end the sanction by fulfilling the required cooperation action – such as appearing at the embassy. This was not the case here.
The applicant was specifically requested by letters from the respondent, acting as the immigration authority, dated September 27, 2024, and April 23, 2025, to comply with his passport obligation under Section 3 Paragraph 1 of the Residence Act and to obtain a valid passport, a passport substitute, or other identity documents (birth certificate, marriage certificate, identity card, etc.) from his country of origin, or at least to have his application for such documents confirmed. The passport obligation would only be fulfilled upon presentation of a valid passport or passport substitute. He was also obligated to cooperate in clarifying his identity and obtaining a passport substitute through the consular representation of his country of origin.
The applicant has indisputably already submitted the original of his birth certificate. While the respondent has questioned the applicant's date of birth based on the forensic medical age assessment, forgery of the birth certificate has not yet been proven. The authenticity of the certificate could not be confirmed simply due to a lack of authentic comparative material. Therefore, repeated requests to submit a birth certificate are unproductive. From his perspective, the applicant has sufficiently fulfilled this part of his duty to cooperate. He submitted the original birth certificate and declared that he possesses no other identification documents.
Applying for replacement travel documents at the relevant embassy of his country of origin in Germany is currently not possible, as the Guinea-Bissau embassy in Berlin has been closed since October 23, 2020. Under these circumstances, the applicant cannot be required to inform the respondent in advance that an in-person appointment is not possible or to attempt to apply for replacement travel documents in writing at another diplomatic mission abroad – for example, in Brussels. The issuance of replacement travel documents generally requires a personal appearance and cannot be replaced by written communication. However, the applicant is not permitted to leave Germany for the purpose of an in-person appearance abroad. Therefore, an objective impossibility exists: the applicant can only do what is actually possible for him, and he has done everything to fulfill his duty to cooperate.
Furthermore, the respondent would have been obligated to adapt his request to the specific situation. He should have stated, if necessary, that the embassy was currently closed, that the applicant could not obtain substitute travel documents in Germany during this time, and what specific action was therefore required of him. If this adaptation is omitted, any breach of duty cannot be attributed to the applicant. Such clarification would also have been necessary to give the applicant the opportunity to undertake the further required cooperation in order to prevent the continued granting of only limited benefits under Section 1a of the Asylum Seekers' Benefits Act (AsylbLG).
The provisional granting of benefits was to be limited here until May 31, 2025 (end of the benefit reduction according to the decision) and until October 31, 2025 (end of the benefit reduction after partial recognition for November 2025), since a preliminary injunction may not, as a rule, extend beyond the subject matter of the corresponding main proceedings. This follows from the function of safeguarding legal protection and the resulting ancillary nature of preliminary legal protection and also applies with regard to time (see Baden-Württemberg Higher Social Court, decision of February 6, 2020 – L 3 AS 4073/19 ER-B – juris para. 27; Keller, loc. cit., § 86b para. 35b).
Due to the lack of provision of subsistence benefits and the absence of further financial resources, the urgent need for action (ground for the order) must be assumed.
This also applies insofar as the benefit reductions had already expired at the time of the Senate's decision and thus each period in question is now a closed period in the past. While preliminary injunctions relating to a past period are generally not permissible (see Higher Social Court of Saxony-Anhalt, decision of March 30, 2016 – L 4 AS 65/16 B ER – juris para. 38), past periods in this sense are only those prior to the filing of the application with the court. In the Senate's view, benefits granted under a preliminary injunction are generally to be awarded from the date the application for interim relief is received by the court, provided that the requirements for the injunction were met at that time and the grounds for the injunction have not since ceased to exist due to any other change in income or assets (similarly Keller, loc. cit., § 86b para. 35a with further references; Higher Social Court of Saxony-Anhalt, decision of May 23, 2023 – L 2 AS 128/23 B ER – juris para. 27; contra Burkiczak in: jurisPK-SGB II, 2nd edition 2022, § 86b para. 435 [as of October 15, 2025]: benefits are only granted from the date of the court's decision). Making the grounds for the injunction dependent on the – more or less arbitrary – date of the court's decision would contradict the principle of effective legal protection (Art. 19 para. 4 of the Basic Law). Particularly in the area of the Asylum Seekers' Benefits Act (AsylbLG), restrictions on benefits pursuant to Section 14 Paragraph 1 AsylbLG must be limited to six months. If the grounds for an order concerning benefits relating to a period that has already expired were denied on the grounds that the period has since lapsed, this would amount to a de facto denial of effective legal protection. The duration of the court proceedings must not lead to the applicant being deprived of effective legal protection solely due to the passage of time and the processing time in the appeals process.
Furthermore, a need to catch up can also be assumed, since the respondent unlawfully reduced the applicant's subsistence level by €200 per month over a period of 11 months.
The decision on costs for the ER appeal proceedings is based on a corresponding application of Section 193 Paragraph 1 of the Social Court Act (SGG).
2.
The appeals regarding the denial of legal aid (L 8 AY 22/25 B and L 8 AY 29/25 B) are also admissible pursuant to Section 172 Paragraph 1 of the Social Court Act (SGG). The Social Court denied legal aid solely due to the lack of prospects of success, so there is no case for the exclusion of the appeal pursuant to Section 172 Paragraph 3 No. 2a) of the SGG. The value in dispute of €750 required for admissibility pursuant to Section 172 Paragraph 3 No. 2b) of the SGG in conjunction with Section 144 Paragraph 1 Sentence 1 No. 1 of the SGG is exceeded in each case for the reasons stated above.
The complaints are also justified.
Pursuant to Section 73a Paragraph 1 Sentence 1 of the Social Court Act (SGG) in conjunction with Section 114 Paragraph 1 Sentence 1 of the Code of Civil Procedure (ZPO), legal aid is to be granted upon application if the applicant, based on their personal and financial circumstances, cannot afford the costs of litigation, can only afford them in part, or can only afford them in installments, provided that the intended legal action or defense offers sufficient prospects of success and does not appear frivolous. In light of the outcome of the proceedings, these requirements are met. The applicant is also indigent.
Costs are not to be reimbursed for the legal aid appeal proceedings pursuant to Section 73a Paragraph 1 Sentence 1 of the Social Courts Act (SGG) in conjunction with Section 127 Paragraph 4 of the Code of Civil Procedure (ZPO).
3.
The requirements for granting legal aid for the appeal proceedings within the meaning of Section 73a Paragraph 1 Sentence 1 of the Social Courts Act (SGG) in conjunction with Section 114 Paragraph 1 Sentence 1 of the Code of Civil Procedure (ZPO) are met.
The decision is not subject to appeal (§ 177 SGG).
