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 25th Chamber of the Social Court of Magdeburg decided on November 26, 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 9, 2025, until a legally binding decision is reached on the applicant's objection of November 9, 2025, against the decision of November 3, 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, born on [date redacted], is, according to his own statements, a Nigerien national. He stated that he entered the Federal Republic of Germany on March 27, 2020, and submitted a formal asylum application on June 3, 2020. Prior to this, Belgium issued the applicant a visa pursuant to Article 12(4) of the Dublin III Regulation, valid from February 26, 2020. Following unsuccessful deportation attempts and the expiry of the transfer deadline, responsibility for conducting the asylum procedure was transferred from Belgium to Germany. The asylum application was rejected as unfounded by the Federal Office for Migration and Refugees (BAMF) on April 3, 2023. It was determined that there were no grounds for prohibiting deportation to Niger. The applicant was ordered to leave the country within one week of notification of the decision and was threatened with deportation to Niger. Both his preliminary injunction proceedings before the Administrative Court (VG) Magdeburg (decision of April 18, 2023) and his lawsuit with file number 1 A 70/23 MD were unsuccessful (court order of May 25, 2023). His residence permit expired on May 3, 2023, and his obligation to leave the country became enforceable on May 3, 2023. The applicant was granted a temporary suspension of deportation pursuant to Section 60a Paragraph 2 Sentence 1 of the German Residence Act (AufenthG).
The applicant has been assigned to the respondent for accommodation since September 20, 2021. Since then, he has been living in communal accommodation within the meaning of Section 53 Paragraph 1 of the Asylum Act (AsylG).
By decision dated August 25, 2023, he received benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) in the amount of €451 per month from July 2023 until further notice. During the hearing conducted by the Federal Office for Migration and Refugees (BAMF) on June 23, 2020, the applicant, when asked why he had no identity documents, explained that after his arrival in Hamburg, he had been accompanied to a refugee shelter by an African man. He had given this man his passport and money, and the man had run off with it. He did not know the man. He had trusted him because he was also African. Since the beginning of the asylum proceedings, he had taken no steps to obtain identity documents. By decision dated November 17, 2023, the respondent revoked the decision of August 25, 2023, and reduced the benefits under the Asylum Seekers' Benefits Act (AsylbLG) pursuant to Section 1a Paragraph 3 of the AsylbLG for the period from November 27, 2023, to May 26, 2024. He then granted monthly benefits of €183 for this period. Legal proceedings concerning this matter are pending before this court under file number S 25 AY23/24. The application for interim legal protection (S 31 AY 82/23 ER) was also rejected (decision of 09.04.2024) and the appeal against this decision was dismissed by the Higher Social Court of Saxony-Anhalt (LSG) on 04.06.2024 (file no. L 8 AY 12/24 B ER). The respondent granted the applicant benefits pursuant to Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) only by decision dated May 27, 2024 (page 360 of the administrative file) for the period from May 27, 2024 to November 26, 2024, and by decision dated November 21, 2024, as amended by the decision on the objection dated March 24, 2025, for the period from November 27, 2024 to May 26, 2025 (pending action S 25 AY 23/25). Most recently, by decision dated May 26, 2025 (page 532 of the administrative file), the respondent again granted the applicant only benefits pursuant to Section 1a Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) for the period from May 27, 2025, to November 26, 2025, in the amount of €197 per month (for May 2025, only a pro rata amount of €31.77). Despite being requested to do so, the applicant had still not complied with his obligation to cooperate in obtaining a passport and had not submitted any verifiable evidence of his cooperation in clarifying his identity. In this regard, the applicant filed an application for preliminary legal protection with the adjudicating chamber (file number S 25 AY 41/25 ER), which was rejected by order dated July 15, 2025. The appeal filed against this decision with the Higher Social Court of Saxony-Anhalt is pending under file number L 8 AY 26/25 B ER.
On October 16, 2025, the immigration authority informed the respondent that the applicant had fulfilled his obligations to cooperate. Subsequently, on November 3, 2025, the respondent issued a decision revoking and granting benefits under the Asylum Seekers' Benefits Act (AsylbLG), thereby rescinding the decision of May 26, 2025, effective October 16, 2025. The respondent granted the applicant benefits pursuant to Sections 3 and 3a of the AsylbLG, starting in November 2025, at the standard rate level 2 (397.00 euros per month).
On November 9, 2025, the applicant filed an objection to the decision of November 3, 2025, and simultaneously applied to the Magdeburg Social Court for preliminary legal protection. 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, taking into account the legal opinion of the court, until a final and binding decision is reached on the applicant's objection of November 9, 2025, against the respondent's decision of November 3, 2025.
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 a right. Preliminary injunctions are also permissible to regulate a provisional state of affairs with regard to a disputed legal relationship if such regulation appears necessary to avert substantial disadvantages. 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 3, 2025, 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, 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 [link to relevant document]). 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 the information on legal remedies
