DECISION
in the legal dispute
xxx,
– Applicant –
Legal representative: Attorney Sven Adam
, Lange-Geismar-Str. 55, 37073 Göttingen
against
City of Stuttgart – Office for Social Affairs and Participation,
represented by the Mayor,
Eberhardstr. 33, 70173 Stuttgart
– Respondent –
The 9th Chamber of the Stuttgart Social Court
on February 19, 2026 in Stuttgart
through Judge xxx (additional supervising judge)
without oral proceedings:
I. The respondent is ordered by way of preliminary injunction to provisionally grant the applicant basic benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) to the extent previously granted and in the statutory amount, for the period from January 6, 2026, until a final and binding decision is reached on the applicant's objection of December 15, 2025.
The respondent shall bear the applicant's extrajudicial costs.
II. The applicant is granted legal aid without installment payments, with the appointment of lawyer Adam.
REASONS
I.
The applicant is seeking preliminary legal protection against the termination of her basic benefits under the Asylum Seekers' Benefits Act (AsylbLG) as of January 1, 2026. The dispute concerns the legality of the exclusion from benefits pursuant to Section 1 Paragraph 4 Sentence 1 No. 2 AsylbLG.
The applicant, born in 19xx – presumably Somali – first entered the federal territory on 4 October 2024 and holds a residence permit until 1 June 2026.
The Federal Office for Migration and Refugees (BAMF) rejected your asylum application of November 8, 2024, as inadmissible by decision of February 19, 2025, and issued a deportation order pursuant to Section 34a of the Asylum Act (AsylG), as another Dublin State (Denmark) was responsible. The file does not specify a transfer deadline.
By letter dated November 12, 2025, the respondent notified the applicant of the intended discontinuation of benefits as of January 1, 2026. The applicant did not respond.
By decision dated 5 December 2025, the respondent rejected the granting of benefits under the Asylum Seekers' Benefits Act (AsylbLG) from 1 January 2026 pursuant to Section 1 Paragraph 4 No. 2 AsylbLG.
The applicant filed an objection to this on December 15, 2026. On January 6, 2026, she filed an application for preliminary legal protection with the Social Court.
The applicant further argues that the requirements of Section 1 Paragraph 4 Number 2 of the Asylum Seekers' Benefits Act (AsylbLG) are not met. Moreover, voluntary departure is not possible under the Dublin procedure. Rather, a transfer always takes place within the framework of an officially supervised procedure, even if initiated by the person concerned. Furthermore, Section 1 Paragraph 4 Sentence 1 Number 2 of the AsylbLG is not in conformity with European law.
The applicant requests that
the respondent be ordered, by way of preliminary injunction, to grant the applicant, provisionally and subject to the right of recovery until a final and binding decision is reached on the applicant's objection of December 15, 2025, against the respondent's decision of December 5, 2025 (file no.: 2602.765926), 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, and to grant the applicant legal aid with the appointment of attorney Sven Adam – Göttingen.
The respondent requests that
the application be rejected.
The respondent argues that the applicant is no longer entitled to benefits pursuant to Section 1 Paragraph 4 Sentence 1 No. 2 of the Asylum Seekers' Benefits Act (AsylbLG).
Regarding the facts of the case and the further details thereof, reference is made to the attached paper administrative file of the respondent and the electronically maintained court file.
II.
The application for preliminary legal protection is admissible and well-founded.
In this case, preliminary legal protection is governed by Section 86 Paragraph 2 Sentence 2 of the Social Courts Act (SGG). According to this provision, the court hearing the main proceedings 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. This is the case if, upon preliminary examination, the applicant has a claim to the requested benefit (claim for an injunction) and the enforcement of the claim cannot wait for a decision in the main proceedings due to particular urgency (ground for an injunction). The claim for an injunction and the ground for an injunction must be substantiated (Section 86b Paragraph 2 Sentence 4 SGG in conjunction with Section 920 Paragraph 2 of the Code of Civil Procedure – ZPO). In view of its provisional nature, the interim order may not, in principle, anticipate the final decision in the main proceedings (cf. LSG North Rhine-Westphalia of 26 January 2015 – L 7 AS 617/14 B; LSG Saxony of 19 December 2016 – L 7 AS 1001/16 B ER; HKSGG/Binder § 86b Rn. 45).
Based on the standards outlined above, a summary review concludes that there is a right to an order from January 6, 2026. The applicant is to be granted provisional subsistence benefits in accordance with Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG).
The conditions for exclusion from benefits pursuant to Section 1 Paragraph 4 Sentence 1 No. 2 AsylbLG are unlikely to be met.
According to this provision, persons entitled to benefits whose asylum application has been rejected as inadmissible by a decision of the Federal Office for Migration and Refugees (BAMF) pursuant to Section 29 Paragraph 1 No. 1 in conjunction with Section 31 Paragraph 6 of the Asylum Act (AsylG), for whom deportation has been ordered pursuant to Section 34a Paragraph 1 Sentence 1 Alternative 2 AsylG and for whom, according to the BAMF's determination, departure is legally and factually possible, even if the decision is not yet final, are not entitled to benefits under the Asylum Seekers' Benefits Act (AsylbLG).
Although the applicant has been subject to an enforceable deportation order since the final and binding rejection of her asylum application in Germany, and is therefore generally entitled to benefits pursuant to Section 1 Paragraph 1 Number 5 of the Asylum Seekers' Benefits Act (AsylbLG), the Federal Office for Migration and Refugees (BAMF) rejected the asylum application as inadmissible pursuant to Section 29 Paragraph 1 Number 1 in conjunction with Section 31 Paragraph 6 of the Asylum Act (AsylG) (so-called Dublin III cases) and issued a deportation order pursuant to Section 34a Paragraph 1 Sentence 1 Alternative 2 of the Asylum Act (AsylG). These asylum-related decisions are binding under Section 1 Paragraph 4 Sentence 1 No. 2 of the Asylum Seekers' Benefits Act (AsylbLG), without being subject to review for their legality under benefit law (see Federal Social Court (BSG), Judgment of 25 July 2024 – B 8 AY 7/23 R, para. 18, juris; Frerichs in: Schlegel/Voelzke, jurisPK-SGB XII, 4th ed., Section 1 AsylbLG (as of 28 October 2025), para. 206_4).
However, the BAMF's determination, required by the regulation, that departure is legally and factually possible is lacking. The BAMF's decision of November 25, 2024, contains no such determination. The BAMF merely determined that there were no prohibitions on deportation pursuant to Section 60, paragraphs 5 and 7, sentence 1 of the Residence Act. However, this is not sufficient, as Section 1 Paragraph 4 Sentence 1 No. 2 of the Asylum Seekers' Benefits Act (AsylbLG) expressly requires the further finding that (even voluntary) departure is legally and factually possible (cf. in this regard and below also Social Court Heilbronn, Decision of 22 September 2025 – S 15 AY 1887/25 ER, para. 25 juris with reference to Higher Social Court Lower Saxony-Bremen, Decision of 13 June 2025 – L 8 AY 12/25 B ER, paras. 23 et seq. juris; most recently Higher Social Court Hesse, Decision of 1 October 2025 – L 4 AY 5/25 B ER, paras. 43 et seq. juris, as well as Frerichs in: Schlegel/Voelzke, juris-PK-SGB XII, 4th edition 2024, as of 9 April 2025 on Section 1 AsylbLG para. 206.7 and 206.8 also with further references).
The missing statement here is not merely an unnecessary formality, as it is doubtful whether voluntary departure without the BAMF's support is even legally possible. Self-initiated departure to the responsible state under the Dublin Agreement requires a complex administrative procedure. This includes, among other things, the approval of the BAMF and all other involved agencies. For security reasons, however, voluntary transfers from member states are currently not being approved. Voluntary departures to member states are therefore only supported by the Federal Office in exceptional cases (see in detail the BAMF's Dublin Service Instructions, dated February 2023, last accessed on February 12, 2026, at https://www.proasyl.de/wp-content/uploads/2023-06-12-BAMF-Dienstanweisung-Dublin.pdf). Thus, without the corresponding cooperation of the Federal Office for Migration and Refugees (BAMF), applicants cannot voluntarily end the exclusion or restriction of benefits by leaving the country (see Social Court Stuttgart, decision of February 12, 2026 – S 14 AY 461/26 ER; similarly, Social Court Heilbronn, decision of September 22, 2025 – S 15 AY 1887/25 ER, para. 25 juris, referring to Higher Social Court Lower Saxony-Bremen, decision of June 13, 2025 – L 8 AY 12/25 B ER, paras. 23ff juris; most recently, Higher Social Court Hesse, decision of October 1, 2025 – L 4 AY 5/25 B ER, paras. 43ff juris; similarly, Frerichs in: Schlegel/Voelzke, juris-PK-SGB XII, 4th edition 2024, as of [date missing]). 9.4.2025 to § 1 AsylbLG Rn. 206.7 and 206.8 also with further references).
There is also grounds for an order, since the services in dispute serve to guarantee a dignified minimum standard of living and the applicant cannot meet her needs on her own.
The decision on costs is based on a corresponding application of Section 193 of the Social Court Act (SGG) and takes into account that the application was successful.
In view of the sufficient prospects of success and the applicant's need, legal aid was to be granted, whereby only the public treasury has the right to appeal in this respect.
The following is information on legal remedies.
