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 October 30, 2025, through the President of the State Social Court xxx, the Judge at the State Social Court xxx and the Judge at the State Social Court xxx:
Upon the applicant's appeal, the decision of the Social Court of Magdeburg of July 15, 2025 is 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 from June 16, 2025 until a decision is reached in the main proceedings, but no later than November 26, 2025.
The respondent must reimburse the applicant for his necessary extrajudicial costs for both instances of the proceedings.
The applicant is granted legal aid for the application and appeal 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 preliminary legal proceedings regarding higher benefits under the Asylum Seekers' Benefits Act (AsylbLG). Furthermore, the applicant is challenging the denial of legal aid for the proceedings at first instance.
The applicant, born on xxx (alias Hamza Idrissa Tondi), is a Nigerien national. He entered Germany on March 27, 2020, with a Belgian visa issued in Niamey (Niger) and valid from February 26 to April 11, 2020.
The applicant submitted an asylum application to the Hamburg Central Residents' Registration Office, which the Federal Office for Migration and Refugees (BAMF) received in writing on May 27, 2020. On June 3, 2020, he submitted a formal application for asylum in the Federal Republic of Germany. From there, a transfer request was sent to Belgium on June 23, 2020, under the so-called "Dublin Procedure." The Belgian authorities, in a letter dated July 1, 2020, declared their responsibility for processing the asylum application pursuant to Article 12(4) of Regulation (EU) No 604/2013 of the European Parliament and of the Council of June 26, 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 a stateless person (Dublin III Regulation).
During his personal hearing with the Federal Office for Migration and Refugees (BAMF) on June 23, 2020, the applicant explained that he had come to Germany because members of the terrorist group Boko Haram had killed his parents. Upon arriving in Hamburg, he was accompanied to the refugee accommodation by an unknown African man. After trusting this man and giving him his passport and money, the man fled. Since the beginning of the asylum proceedings, he has made no attempt to obtain identity documents. The BAMF rejected the applicant's asylum application, submitted in Germany on June 3, 2020, as inadmissible in a decision dated July 15, 2020, and determined that there were no grounds for prohibiting deportation under Section 60, paragraphs 5 and 7, sentence 1 of the Residence Act (AufenthG). Deportation to Belgium was ordered. There were no reasons why the applicant could not reasonably be expected to go to Belgium and apply for asylum there. The Dublin III Regulation does not grant asylum seekers the right to freely choose a Member State for the examination of their asylum application. On August 17, 2020, the applicant filed a lawsuit against this decision with the Administrative Court of Magdeburg and simultaneously submitted an application for an order suspending the effect of his lawsuit pursuant to Section 80 Paragraph 5 of the Code of Administrative Court Procedure. By decision of August 28, 2020 (1 B 283/20 MD), the Administrative Court definitively rejected the granting of preliminary legal protection regarding the transfer to Belgium. The applicant had failed to comply with the one-week time limit for filing a lawsuit and application pursuant to Section 74 Paragraph 1 Sentence 2 in conjunction with Section 34a of the Asylum Act.
During a deportation scheduled for October 13, 2020, the applicant was receiving inpatient treatment at the AMEOS Clinic in Halberstadt. A deportation attempt to Belgium, announced for November 9, 2020, also failed.
Following the expiry of the transfer deadline on January 1, 2021, the Federal Office for Migration and Refugees (BAMF) revoked its decision of July 15, 2020, by decision of April 7, 2021. Subsequently, by order of the Central Reception Office for Asylum Seekers of the State of Saxony-Anhalt (ZASt) of September 20, 2021, the applicant was assigned to the respondent 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.
By decision dated April 3, 2023, 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 prohibitions on deportation to Niger existed (point 4), ordered the applicant to leave within one week of notification of the decision, and threatened deportation to Niger (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 of Niger and would be able to secure his livelihood there. The applicant filed a lawsuit against this decision with the Magdeburg Administrative Court on April 13, 2023, and simultaneously submitted an application for an order suspending the enforcement of the decision pursuant to Section 80 Paragraph 5 of the Code of Administrative Court Procedure. By decision of April 18, 2023 (1 B 69/23 MD), the Administrative Court definitively rejected the application for preliminary legal protection against the deportation order to Niger. The applicant's submissions failed to provide even remotely credible reasons under asylum law for leaving his home country. He had not been able to credibly demonstrate persecution within the meaning of Section 3 Paragraph 1 of the Asylum Act. Even assuming the truth of his vague and imprecise account of alleged persecution by members of Boko Haram, he had not presented any facts indicating that he was being persecuted for any of the reasons listed in Section 3 Paragraph 1 No. 1 of the Asylum Act.
By court order dated May 25, 2023, the Magdeburg Administrative Court overturned point 5 of the BAMF's decision of April 3, 2023, and dismissed the remainder of the action. While the combination of the asylum application's rejection with the deportation order was ultimately not objectionable, the court found the departure deadline unlawful because it began to run upon notification of the decision and not only after the conclusion of the preliminary injunction proceedings. Subsequently, by decision dated July 11, 2023, the BAMF amended point 5 of its April 3, 2023, decision accordingly, regarding the enforcement of the deportation order and the commencement of the departure deadline.
The residence permit expired on July 29, 2023. The applicant has been subject to an enforceable deportation order since then. Due to his unclear identity, he received a temporary suspension of deportation on October 26, 2023, pursuant to Section 60b of the German Residence Act (AufenthG), which is currently valid until November 9, 2025.
The respondent, acting as the immigration authority, informed the applicant by letter dated May 3, 2023, that the residence permits had expired on May 3, 2023, when the deportation order became enforceable. At the same time, the respondent requested the applicant to fulfill his duty to cooperate pursuant to Section 82 Paragraph 1 of the Residence Act (AufenthG), to comply with his passport obligation under Section 3 Paragraph 1 of the Residence Act (AufenthG), and to 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 to have his application for such documents confirmed. Failure to comply with his duty to cooperate would result in a reduction of his benefits under the Asylum Seekers' Benefits Act (AsylbLG). By letter dated August 3, 2023, the respondent reiterated the request for cooperation in obtaining identity documents, for submitting certificates, documents or data carriers that are relevant for establishing identity and nationality, and for providing proof of efforts to establish identity, and set a deadline for the applicant to do so until September 8, 2023.
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 September 20, 2021 (standard benefit level 2) until further notice by decision dated September 21, 2021.
After the applicant took up temporary employment as a production assistant with ZAG Zeitarbeits-Gesellschaft GmbH in Salzwedel on November 29, 2021, the respondent revoked his benefit award of September 21, 2021, by decision dated January 19, 2022, effective January 1, 2022. ZAG initially terminated the employment relationship on November 1, 2022, effective November 30, 2022, but then extended it until November 28, 2023, and subsequently terminated it again on May 12, 2023, without notice, or alternatively, with notice to the earliest possible date. From May 25, 2023 to September 1, 2023, the applicant received no benefits from the Federal Employment Agency due to waiting periods, and from September 2, 2023 to January 9, 2024, unemployment benefit I in the amount of €26.55 per calendar day (notice dated July 25, 2023, as amended by the amending notice dated September 14, 2023).
By decision dated August 25, 2023, the respondent granted the applicant benefits pursuant to Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) in the amount of €451 per month from July 1, 2023, until further notice. By remedial decision dated March 8, 2024, the respondent corrected the benefit amount to €502 per month.
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 September 21, 2023, of the intended restriction of benefits pursuant to Section 1a of the Asylum Seekers' Benefits Act (AsylbLG), effective October 1, 2023. The respondent then issued a decision on November 17, 2023. This decision revoked the granting of benefits pursuant to Section 2 of the AsylbLG, dated August 25, 2023, effective November 27, 2023, and granted only restricted benefits pursuant to Section 1a, paragraph 3 of the AsylbLG, citing the applicant's lack of cooperation. The restriction of benefits was limited to six months, until May 26, 2024, with reference to Section 14, paragraph 1 of the AsylbLG.
The applicant filed an objection by letter dated December 11, 2023 (received by the respondent on December 12, 2023). The applicant's application in the preliminary injunction proceedings, which (according to interpretation) sought to suspend the effect of this objection, was unsuccessful (decision of the Social Court [SG] of April 9, 2024 – S 31 AY 82/23 ER; decision of the Higher Social Court [LSG] of Saxony-Anhalt of June 4, 2024 – L 8 AY 12/24 B ER).
By decision dated March 22, 2024, the State Administrative Office rejected the appeal against the decision of November 17, 2023. It was the applicant's responsibility to obtain identity documents. The immigration authority had outlined various options, including contacting the applicant's home country or registration offices to obtain original documents, contacting an embassy, or providing proof of contact with the home country. The applicant had not adequately complied with these requirements and had stated at the hearings that he would not attempt to obtain a passport. The regulations restricting entitlement to identity documents were deemed constitutional. The lawsuit filed against this decision with the Social Court of Magdeburg (S 25 AY 23/24) is still pending.
After the applicant failed to comply with the request of January 18, 2024, to cooperate in clarifying his identity and obtaining documents relating to his country of origin, the respondent notified him by letter of May 7, 2024, of a further restriction of benefits pursuant to Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG). By decision of May 27, 2024, the respondent granted him benefits for the period from May 27 to November 26, 2024, subject to a restriction of entitlement pursuant to Section 1a Paragraph 3 of the AsylbLG. The decision became final.
On October 15, 2024, the immigration authorities issued another request to submit identity documents. By decision dated November 21, 2024, benefits were reduced for the period from November 27, 2024, to May 26, 2025, following a prior hearing pursuant to Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG), due to a lack of cooperation in obtaining a passport.
Following a request from the immigration authorities to submit all data storage devices (notice dated October 22, 2024), the applicant handed over his mobile phone on December 12, 2024. However, no data that could have been used to establish his identity was found on it. The phone had apparently hardly been used previously.
Following the introduction of the payment card on January 1, 2025, benefits were recalculated by decision dated December 12, 2024, pursuant to Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG), due to a lack of cooperation in obtaining a passport, for the period from January 1 to May 26, 2025. The State Administrative Office rejected the objection filed against this decision by decision dated March 24, 2025. The subsequent lawsuit filed with the Social Court of Magdeburg (S 25 AY 23/25) is still pending.
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 13, 2025, the applicant presented his driver's license (number: xxx), issued in Niger on March 2, 2020, to the immigration authority of the respondent. The license shows his name, date and place of birth, address, and fingerprints. The immigration authority confirmed receipt of this "identity document" and initiated an authenticity check, which is still pending.
By decision dated 26 May 2025, the respondent again granted the applicant benefits for the period from 27 May to 26 November 2025 with a restriction of entitlement pursuant to Section 1a Paragraph 3 AsylbLG.
The applicant filed an objection on June 16, 2025, which the respondent has not yet decided upon.
Also on June 16, 2025, the applicant again applied to the Social Court of Magdeburg for preliminary legal protection and requested legal aid. He argued that the provision of Section 1a of the Asylum Seekers' Benefits Act (AsylbLG) was manifestly unconstitutional, as 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 claimed that his benefits had been reduced for years, a reduction that could not be justified under constitutional law (reference to the decision of the Higher Social Court of Saxony of February 22, 2021 – L 8 AY 9/20 B ER).
The respondent countered that there were no concerns regarding the constitutionality of the provision in Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG). The applicant showed no signs of attempting to obtain identity documents. The fact that he ignored official letters should be considered a concrete instance of misconduct.
The Social Court rejected the applicant's motion and also the granting of legal aid (decision of July 15, 2025). The application for interim relief was to be interpreted as an application pursuant to Section 86b Paragraph 1 Sentence 1 No. 2 of the Social Courts Act (SGG) and was therefore admissible. However, the prerequisites for ordering the suspension of the deportation order were not met. Upon summary review, the decision of May 26, 2025, was found to be lawful, as the requirements of Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) were fulfilled. The enforcement of deportation measures could not have been carried out against the applicant solely due to his lack of a passport or equivalent travel document, a reason for which he was responsible. He had not yet made sufficient efforts to obtain the documents necessary for a passport application. His misconduct was the sole cause of the non-enforcement of the deportation, so the restriction of his entitlement in this particular case was constitutional. The restriction of benefits was also properly limited to six months, since the respondent was entitled to impose a further reduction in benefits in accordance with Section 14 Paragraph 2 of the Asylum Seekers' Benefits Act (AsylbLG) if the breach of duty continued and after the previous restriction of benefits had expired.
On the same day as the decision served on him on July 16, 2025, the applicant filed an appeal with the Social Court (SG) regarding the denial of preliminary legal protection (L 8 AY 26/25 B ER) and regarding the denial of legal aid (L 8 AY 27/25 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 (LSG Sachsen-Anhalt). In support of his appeal, he refers to his previous submissions.
The applicant requests that
the decision of the Social Court of Magdeburg of July 15, 2025 be overturned and that the respondent be ordered by way of an interim injunction to grant him, provisionally from June 16, 2025 until a decision is reached in the main proceedings, but no later than November 26, 2025, full basic benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act.
The respondent requests that
the appeal be dismissed.
He refers to his arguments in the first instance as justification and further states that in cases of misconduct by the benefit recipient that is the sole cause of his non-deportation, the restriction of the entitlement is constitutional and, in particular, does not violate the principle of proportionality in the individual case (reference to Bavarian State Social Court, decision of May 11, 2022 – L 8 AY 27/22 B ER and Federal Social Court [BSG], judgment of February 27, 2019 – B 7 AY 1/17 R).
Following a court order, the respondent stated on September 29, 2025, that the applicant had not fulfilled his duty to cooperate, neither by submitting his driver's license nor by providing the copy of a Nigerien identity card submitted on September 16, 2025. Only documents that clearly prove nationality are suitable for this purpose, which is not the case with the driver's license. It is also not suitable as a travel document. Copies cannot be recognized as authentic identity documents due to the limited verification possibilities.
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 appeal is successful.
1.
The applicant's appeal (L 8 AY 26/25 B ER), filed in due form and time with regard to the rejection of preliminary legal protection pursuant to Section 173 of the Social Court Act (SGG), is admissible pursuant to Section 172, paragraphs 1 and 3, no. 1 of the SGG. The value of the subject matter of the appeal exceeds €750, as the application seeks the difference between the benefits granted in a reduced amount by the decision of May 26, 2025, and the basic benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) for a period of approximately five months.
The appeal is also well-founded. The respondent is provisionally ordered to pay benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) for the period from June 16 to November 26, 2025.
The applicant correctly pursues his legal objective of receiving full benefits in the appeal proceedings by applying for a preliminary injunction. According to Section 86b Paragraph 2 Sentence 1 of the Social Court Act (SGG), a preliminary injunction may only be issued in cases where Section 86b Paragraph 1 SGG does not apply. 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 a combined action for annulment and performance, seeking the annulment of the benefit-restricting decision of May 26, 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 July 1, 2023, until further notice – i.e., permanently – by the decision of August 25, 2023, as amended by the remedial decision of March 8, 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 permanent administrative act was revoked by the respondent by decision of November 17, 2023. Although the applicant challenged this decision with his lawsuit S 25 AY 23/24 after an unsuccessful objection procedure (objection decision of March 22, 2024), and the outcome of the proceedings is still pending, the lawsuit does not have suspensive effect pursuant to Section 11 Paragraph 4 No. 2 of the Asylum Seekers' Benefits Act (AsylbLG). The application for suspensive effect was rejected by both the Social Court (SG) in its decision of April 9, 2024 (S 31 AY 82/23 ER) and the Higher Social Court of Saxony-Anhalt (LSG Sachsen-Anhalt) in its decision of June 4, 2024 (L 8 AY 12/24 B ER). Therefore, it is insufficient to pursue legal protection solely through a simple action for annulment, since, although the restriction of benefits can be removed after the reversal of the challenged reduction decision of May 26, 2025, the legal protection itself is not sufficient. However, the applicant is dependent on a benefit award ex nunc, as the permanent benefit award of August 25, 2023, as amended by the remedial decision of March 8, 2024, is not currently being reinstated.
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 life of human dignity, 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 [BVerfG], 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.
There is a legal entitlement to an order. The prerequisites for entitlement to benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) are met upon preliminary review.
The applicant belongs to the group of persons entitled to benefits under Section 1 Paragraph 1 Number 5 of the Asylum Seekers' Benefits Act (AsylbLG). He is a foreigner, is actually residing in Germany, and is subject to an enforceable deportation order. He is not entitled to benefits under Section 1 Paragraph 1 Number 4 of the AsylbLG, as he does not have a temporary suspension of deportation under Section 60a of the Residence Act (AufenthG), but rather a temporary suspension of deportation due to unclear identity under Section 60b of the Residence Act (AufenthG). According to Section 3 Paragraph 1 of the AsylbLG, persons entitled to benefits under Section 1 of the AsylbLG receive benefits to cover their needs for food, accommodation, heating, clothing, health, care, and household goods and consumables (essential needs). They are also granted benefits to cover their personal needs for daily living (essential personal needs).
Whether the applicant should be granted benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) – as originally decided in the decision of August 25, 2023, as amended by the decision of March 8, 2024 – need not be decided here. Firstly, the application is solely for the granting of benefits under Sections 3 and 3a of the AsylbLG. Furthermore, the granting of analogous benefits under Section 2 of the AsylbLG requires that the person concerned has actually been residing in Germany for at least 18 months without having abused their rights to influence the duration of their stay. The latter appears at least doubtful here for the period in which the applicant expressly refused to present a passport, apply for substitute travel documents, or cooperate in clarifying their identity.
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 repeatedly during the period specified – contrary to the respondent's view – pursuant to Section 1a Paragraph 1 and Paragraph 3a of the Asylum Seekers' Benefits Act (AsylbLG).
Although the applicant was heard by letter dated April 23, 2025, prior to the restriction of benefits, it is irrelevant whether a proper hearing took place if the deadline for cooperation in the request letter from the immigration authority – as in this case – has not yet expired.
In the Senate's view, the prerequisites for the benefit restriction based on Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) in the challenged decision of May 26, 2025, were not met. According to this provision, those entitled to benefits under Section 1 Paragraph 1 Numbers 4 and 5, for whom deportation cannot be carried out for reasons attributable to them, receive only 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, they are only granted 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). Pursuant to Section 14 Paragraph 1 AsylbLG, a restriction of entitlement under this law is limited to six months. According to Section 14 Paragraph 2 of the Asylum Seekers' Benefits Act (AsylbLG), the restriction of entitlement is to be continued in the event of a continuing breach of duty, 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 (Cantzler, AsylbLG, 2019, Section 1a, marginal note 9; Siefert, AsylbLG, 3rd edition 2025, Section 1a, marginal note 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 subsistence benefits under the AsylbLG. The sanction under benefit law is intended to indirectly induce the benefit recipient to comply with their obligation to leave the country (Cantzler, AsylbLG, Section 1a, marginal note 4). The foreigner is obligated to cooperate in obtaining an identity document. This lack of cooperation constitutes typical abuse of rights within the meaning of Section 1a Paragraph 3 Sentence 1 of the Asylum Seekers' Benefits Act (BSG, Judgment of May 12, 2017 – B 7 AY 1/16 R – juris Rn. 15 regarding the predecessor provision of Section 1a No. 2 AsylbLG aF).
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 required 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. This obligation to cooperate is fulfilled, among other things, by assisting in establishing and securing their identity or by providing the declarations necessary for obtaining travel documents (Section 49 Paragraph 2 AufenthG). This obligation also includes all other actions required for issuing the document that can only be performed by the foreigner personally. This includes submitting a photograph, appearing in person at the foreign mission of the home country when applying for or collecting the document, if required, possibly enlisting the assistance of suitable third parties, e.g., relatives, and submitting, handing over, or requesting all certificates or other documents that may be relevant to the competent authority (Saxony Higher Social Court, decision of December 16, 2021 – L 8 AY 8/21 B ER – juris para. 30, 31). There is generally a significant public interest in the prompt termination of the residence of foreigners who are subject to enforceable deportation and live on public funds (Higher Administrative Court for the State of North Rhine-Westphalia, decision of October 12, 2005 – 18 B 1526/05, 18 E 1150/05 – juris para. 20).
Section 48, paragraph 3 of the Residence Act aims to ensure that foreigners fulfill 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 to the state of residence to take back the passport holder (Marx, Residence, Asylum and Refugee Law, 8th edition 2023, Section 2, marginal note 77).
The applicant is subject to an enforceable obligation to leave the country 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 Asylum Seekers' Benefits Act (AsylbLG), after the asylum procedure has been completed (see Siefert, AsylbLG, Section 1a Rn. 75).
In a letter dated April 23, 2025, the respondent, acting as the immigration authority, specifically requested the applicant to obtain and submit an identity document. The letter mentioned, by way of example, a passport, passport substitute, or other identity documents (birth certificate, marriage certificate, identity card, etc.). This constitutes a non-exhaustive list of other identity documents, leaving open the question of what might be meant by "etc." Within the given deadline, on May 13, 2025, the applicant submitted his original driver's license issued in Niger. While a driver's license is not the passport or passport substitute document strictly required under immigration law, it does contain identity-relevant data (name, date of birth, photograph, and possibly fingerprints) and is therefore at least suitable for clarifying the applicant's identity. The respondent, as the immigration authority, also confirmed to the applicant that the driver's license had been received as an "identity document." Furthermore, the respondent failed to inform the applicant, after the driver's license was presented, that this document was insufficient to fulfill his duty to cooperate. Such clarification would have been necessary, however, to allow 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).
By submitting his driver's license, the applicant did not merely react passively to the official request, but rather, in his view, under the circumstances, he likely performed a substantially appropriate act of cooperation. Whether the document is genuine will be examined in the main proceedings. The respondent, however, has already contacted the Federal Police Inspectorate in Magdeburg and requested an examination of the authenticity of "other Nigerien identity documents" (letter dated May 15, 2025). Since the document is an original and not merely a copy, and the issue date predates the applicant's entry into Germany, the Senate currently has no grounds to doubt its authenticity. The respondent has not raised any such concerns.
Even if, despite the special circumstances outlined, one were to assume that the applicant had only inadequately fulfilled his duty to cooperate by submitting his driver's license, since his nationality is not actually proven in this document, a summary review reveals considerable doubt as to whether a continuing breach of duty within the meaning of Section 14 Paragraph 2 of the Asylum Seekers' Benefits Act (AsylbLG) can still be assumed.
Section 14 of the Asylum Seekers' Benefits Act (AsylbLG) applies to all circumstances described in Section 1a of the AsylbLG (Leopold in: Grube/Wahrendorf/Flint, SGB XII, Section 14 AsylbLG, marginal note 1). Since the restriction of benefits 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 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, the mere fulfillment of 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. Chain restrictions without a renewed review are likely to be disproportionate and therefore unlawful (Saxony Higher Social Court, decision of December 16, 2021 – L 8 AY 8/21 B ER – juris para. 48; Berlin-Brandenburg Higher Social Court, decision of September 20, 2018 – L 23 AY 19/18 B ER – juris para. 4; Bavarian Higher Social Court, decision of November 11, 2016 – L 8 AY 29/16 B ER – juris para. 54; Oppermann, loc. cit. § 14 AsylbLG para. 26). It is therefore mandatory for the respondent to review whether the restriction of benefits can be upheld. This requires a renewed individual review of the facts and the law based on a strict application of the principle of proportionality, which requires a balancing of the individual interest (securing the minimum subsistence level) and the public interest (prevention of abuse) and must also be aligned with constitutional limits (Hessian State Social Court, decision of September 17, 2025 – L 4 AY 9/25 B ER – juris para. 37).
Although the applicant has not fully complied with his obligation to cooperate in clarifying his identity over a longer period, he submitted a driver's license in response to the most recent request. While this is an official document that does not prove nationality and therefore would likely not be sufficient for complete identity verification, it nevertheless constitutes an identity document in a broader sense for the reasons already mentioned and indicates at least some (partial) cooperation on the part of the applicant in clarifying his identity.
Taking this circumstance and the principle of proportionality into account, the overwhelming evidence suggests that there is no longer a continuing breach of duty. Therefore, a further reduction in benefits under Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) no longer appears justified for this reason either.
The entitlement to full benefits also exists because the benefit reduction has been in effect since November 27, 2023, and was to be extended by a further six months until November 26, 2025, by the contested decision. A restriction of benefits over a period of two years is excessive in light of the principle of proportionality (see also Saxony Higher Social Court, decision of December 16, 2021 – L 8 AY 8/21 B ER – juris para. 49). This is particularly true in light of the Federal Constitutional Court's decision of November 5, 2019, according to which the constitutionally guaranteed right to a dignified minimum standard of living is due to everyone, is in principle inalienable, and is not forfeited even by allegedly "undignified" behavior (Federal Constitutional Court, judgment of November 5, 2019 – 1 BvL 7/16 – juris para. 120). This fundamental right to a dignified minimum standard of living, guaranteed by Article 1 Paragraph 1 of the Basic Law in conjunction with Article 20 Paragraph 1 of the Basic Law, also applies to those receiving benefits under the Asylum Seekers' Benefits Act (AsylbLG), meaning that benefit reductions are only permissible temporarily and to a very limited extent. This obligation to secure the minimum standard of living cannot be relativized by achieving other objectives. This also applies with regard to the aforementioned legislative motive of indirectly inducing benefit recipients to comply with their obligation to leave the country through sanctions under Section 1a Paragraph 3 of the AsylbLG. Article 1 Paragraph 1 of the Basic Law in conjunction with Article 20 Paragraph 1 of the Basic Law requires that the minimum standard of living must be guaranteed in every case and at all times (Federal Constitutional Court, Judgment of February 9, 2010 – 1 BvL 1/09 – juris para. 133 et seq.). Article 1, paragraph 1 of the Basic Law guarantees a dignified minimum standard of living, which is to be secured through benefits to be designed within the framework of the social welfare state as defined in Article 20, paragraph 1 of the Basic Law, as a unified fundamental right encompassing both the physical and socio-cultural minimum. Foreign nationals do not lose their status as social individuals simply because they leave their homeland and do not reside permanently in the Federal Republic of Germany. The dignified existence, to be understood as a unified whole, must therefore be realized from the beginning of their stay in the Federal Republic of Germany. Considerations of migration policy aimed at keeping benefits for asylum seekers and refugees low in order to avoid creating incentives for migration through a potentially high level of benefits compared internationally cannot, in the first place, justify lowering the standard of benefits below the physical and socio-cultural minimum standard of living. The human dignity guaranteed in Article 1 Paragraph 1 of the Basic Law cannot be relativized in the context of migration policy (Federal Constitutional Court, Judgment of July 18, 2012 – 1 BvL 10/10, 1 BvL 2/11 – juris Rn. 94, 95).
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.
The provisional granting of benefits was to be limited here until November 26, 2025 (end of the benefit reduction), 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 accessory 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).
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 appeal regarding the denial of legal aid (L 8 AY 27/25 B) is 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 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 for the reasons stated above.
The complaint is 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 for the legal aid appeal procedure are not to be reimbursed 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).
