DECISION
In the legal dispute
xxx,
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
– Applicant –
against
Altmarkkreis Salzwedel, represented by the District Administrator,
Karl-Marx-Straße 32, 29410 Salzwedel
– Respondent –
The 31st Chamber of the Social Court of Magdeburg decided on February 3, 2026, through the 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 December 31, 2026, and subject to the right of recovery, from January 27, 2026, until a final and binding decision is reached on the applicant's objection of January 27, 2026, against the respondent's decision of January 9, 2026.
The respondent shall bear the applicant's necessary 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 xxx, holds Malian citizenship and entered the Federal Republic of Germany on September 9, 2023. The applicant was granted a temporary residence permit valid until August 1, 2025.
The applicant was assigned to the respondent for accommodation on October 23, 2023, where he initially resided in communal accommodation at [address redacted] in Salzwedel and, since December 7, 2023, in communal accommodation as defined in Section 53 Paragraph 1 of the Asylum Act (AsylG) at the address specified in [document redacted]. Since November 13, 2023, the applicant has been receiving ongoing benefits from the respondent pursuant to Sections 3, 3a Paragraphs 1 and 2 of the Asylum Seekers' Benefits Act (AsylbLG) in the amount of standard benefit level 2 (decision of November 15, 2023). By amended decision dated February 14, 2024, the respondent revoked its decision of November 15, 2023, pursuant to Section 48 of the German Social Code, Book X (SGB X), and granted the applicant benefits in the amount of €413.00 from January 2024 onwards, based on the change in standard benefit rates that took effect on January 1, 2024, pursuant to Sections 3, 3a paragraphs 1 and 2 of the Asylum Seekers' Benefits Act (AsylbLG). On June 17, 2024, the applicant took up a temporary, compulsory-insured employment relationship as a production assistant, which was to last until December 20, 2024. By decision dated December 4, 2024, the respondent revoked the benefits granted by decision dated February 14, 2024, effective August 1, 2024, and demanded that the applicant—partially revoking the benefits granted and paid for July 2024—reimburse the benefits wrongfully received under the Asylum Seekers' Benefits Act (AsylbLG) in the amount of €79.36 for July 2024. The employment relationship was terminated on April 15, 2025, due to dismissal by the employer. By letter dated June 19, 2025, AOK Sachsen-Anhalt pointed out the mandatory follow-up insurance pursuant to Section 188 Paragraph 4 of the Fifth Book of the German Social Code (SGB V), which applies in the absence of other insurance coverage after deregistration from the previous insurance, and claimed a monthly contribution for health and long-term care insurance totaling €258.41 from April 16, 2025.
By decision dated 22 May 2025, the respondent granted benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) from 1 June 2025 until further notice in the amount of €397.00 per month.
The applicant did not file an objection. On June 30, 2025, he applied for a review of this decision pursuant to Section 44 of Book Ten of the German Social Code (Social Administrative Procedure and Social Data Protection – SGB X) and simultaneously requested preliminary legal protection from the Magdeburg Social Court (S 31 AY 44/25 ER), seeking the granting of basic benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) at standard benefit level 1, taking into account the grandfathering provision of Section 28a Paragraph 5 of Book Twelve of the German Social Code (Social Assistance – SGB XII). By order dated July 25, 2025, the respondent was provisionally ordered, subject to the right of recovery, to grant benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) at standard benefit level 1 until December 31, 2025. The court stated that, based on a summary review, the applicant was entitled to benefits at standard benefit level 1, even in the proceedings before the court. The provision of Section 28a Paragraph 5 of the German Social Code, Book XII (SGB XII) did not apply. By means of an "implementation notice" dated August 7, 2025, the respondent implemented the decision and granted the applicant basic benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) from June 30, 2025, to December 31, 2025, in the amount of standard benefit level 1 (a total of €441.00) plus contributions to health and long-term care insurance (€258.41). The health and long-term care insurance contributions are paid directly to AOK Sachsen-Anhalt (a health insurance provider).
Previously, by decision dated July 14, 2025, the respondent partially revoked its decision of May 22, 2025, regarding the failure to consider contributions to health and long-term care insurance, granted corresponding benefits continuously from June 2025 onwards, and otherwise rejected the review application concerning the amount of benefits granted under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG). The respondent continued to provide basic benefits under Sections 3 and 3a of the AsylbLG in the amount of €397.00 per month (standard benefit level 2). The competent State Administrative Office rejected the objection filed against this decision by decision dated November 21, 2025. The action brought against this decision before the court is pending under file number S 31 AY 138/25.
By amendment notice dated 09.1.2026, the respondent granted, pursuant to Section 48 of the German Social Code, Book X (SGB X), benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) in the amount of the standard benefit level 2 (€409.00) plus medical assistance under Section 4 of the Asylum Seekers' Benefits Act (€258.41), effective from the month of January 2026, thereby revoking the notice dated 07.8.2025.
The applicant, represented by legal counsel, filed an objection to this on January 27, 2026.
At the same time, on January 27, 2026, the applicant applied to the Magdeburg Social Court for preliminary legal protection and argued that he was seeking benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) at standard benefit level 1. He asserted that the provisions of Sections 3 and 3a, paragraph 1, no. 2b, and paragraph 2, no. 2b of the AsylbLG were manifestly unconstitutional, as they violated 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 of the Basic Law (GG), and contravened 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 AsylbLG. Their constitutionally guaranteed minimum subsistence level is currently no longer secure.
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 constitutionally compliant amount at standard benefit level 1 from the date of receipt of this application by the court, until a final and binding decision is reached on the applicant's objection of January 27, 2026, against the respondent's decision of January 9, 2026, taking into account the legal opinion of the court.
The respondent requests that
the application be rejected.
He argues that the applicant is single and lives in communal accommodation as defined in Section 53 Paragraph 1 of the Asylum Act (AsylG), meaning that the provision of benefits for necessary personal needs as well as the necessary needs at standard benefit level 2 pursuant to Section 3a Paragraph 1 No. 2 b and Paragraph 2 No. 2 b of the Asylum Seekers' Benefits Act (AsylbLG) is based on a decree dated March 29, 2023. The Ministry of the Interior and Sport of the State of Saxony-Anhalt decided that the decision of the Federal Constitutional Court (BVerfG) of October 19, 2022, 1 BvL 3/21, is not applicable to single adults receiving basic benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) who are housed in communal accommodation. There is no legal provision that extends the binding effect of the Federal Constitutional Court's decision beyond its subject matter. The similar regulatory concept does not alter this. Regarding the amount of needs to be recognized from January 2025 onwards on the basis of the RBSFV 2025, the respondent reiterated the statements made in the appeal decision.
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 these standards into account, the applicant has credibly demonstrated grounds for and a claim to an injunction. In this respect, the respondent's decision is manifestly unlawful.
a) 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, she is entitled to these benefits only up to the level 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 the 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 dignified minimum standard of living). 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 Chamber is convinced that this reasoning of the Federal Constitutional Court also applies to the parallel provisions for benefit recipients in collective accommodations under Section 3a of the Asylum Seekers' Benefits Act (AsylbLG), since it is highly probable that Section 3a Paragraph 1 No. 2b AsylbLG and Section 3a Paragraph 2 No. 2b AsylbLG are also unconstitutional (see Frerichs in: Schlegel/Voelzke, jurisPK-SGB XII, 3rd edition, Section 3a AsylbLG (as of November 28, 2022), paragraphs 44-18). The circumstances 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. Individual states (e.g., Berlin) have already stipulated that in the future, all single adults entitled to benefits under the Asylum Seekers' Benefits Act (AsylbLG) who are housed in communal accommodation, a reception center, or, if applicable, emergency accommodation, are entitled to the standard benefit rate or the standard benefit level for single adults according to standard benefit level 1, provided they do not live as young adults in their parents' household (regardless of the type of accommodation) (see, for example, the circular from the Berlin Senate Department for Integration, Labour and Social Affairs, Soz No. 01/2023, on the implementation of Sections 2 and 3, 3a of the Asylum Seekers' Benefits Act (AsylbLG)).
Furthermore, the Federal Social Court (BSG) has already suspended proceedings pending before it under file number B 8 AY 1/22 R by decision of September 26, 2024, and referred the matter to the Federal Constitutional Court (BVerfG) with the question of 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 benefits at level 2, are compatible with Article 1 Paragraph 1 of the Basic Law in conjunction with the social welfare principle of Article 20 Paragraph 1 of the Basic Law. The proceedings are still pending before the Federal Constitutional Court under file number 1 BvL 1/25.
The court can leave open the question of whether the respondent was justified in granting the applicant contributions to voluntary health and long-term care insurance within the framework of mandatory follow-up insurance (affirmative: Social Court Heilbronn, decision of June 23, 2025, file no.: S 15 AY 1361/25 ER and negative: Social Court Halle, decision of October 13, 2025, file no.: S 17 AY 37/25 ER). This is because the corresponding contributions are not available to the applicant to cover his needs.
b) In this respect, there is also a ground for an injunction. In light of 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 appropriate (Frerichs, loc. cit., para. 44.19).
The benefits stipulated in the ruling were to be limited to a term ending on December 31, 2026. For the period beginning on or after January 1, 2027, the respondent must issue a decision regarding the benefits to be granted to the applicant under the Asylum Seekers' Benefits Act (AsylbLG).
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 successful.
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