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 27, 2026, 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 December 31, 2026, and subject to the right of recovery, from February 17, 2026, until a final and binding decision is reached on the applicant's action of November 9, 2025, against the respondent's decision of August 5, 2025, as amended by the decision on the objection of October 6, 2025, file number S 31 AY 103/25.
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 [date redacted], is a Turkish national of Kurdish ethnicity and Muslim faith. According to her own statements, she entered the Federal Republic of Germany on November 12, 2024, together with her two minor children (born on October 29, 2019, and November 2, 2020) and submitted an asylum application on November 26, 2024. On December 12, 2024, a transfer request was submitted to Croatia under the Dublin III Regulation. The Croatian authorities declared themselves responsible. The asylum application was rejected by the Federal Office for Migration and Refugees (BAMF) on January 29, 2025, as inadmissible pursuant to Section 29 Paragraph 1 No. 1 of the Asylum Act (AsylG), since Croatia was responsible for processing the asylum applications pursuant to Article 3 Paragraph 2 of the Dublin III Regulation, based on the asylum applications submitted there. Furthermore, the Federal Office for Migration and Refugees (BAMF) determined that no deportation bans existed and ordered deportation to Croatia. By a final and unappealable decision of February 18, 2025 (Case No. 2 B 74/25 MD), the Magdeburg Administrative Court (VG) rejected an application pursuant to Section 80 Paragraph 5 of the Code of Administrative Court Procedure (VwGO).
From the date of assignment to the respondent on January 13, 2025, the respondent granted the applicant (and her children) ongoing benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) by decision dated January 15, 2025 (for the applicant, at the level of standard benefit rate 1). An application dated May 21, 2025, for review of this decision pursuant to Section 44 of the German Social Code, Book X (SGB X), aimed at granting constitutionally compliant benefits and taking into account the protection of existing rights under Section 28a Paragraph 5 of the German Social Code, Book XII (SGB XII), was rejected by the respondent by decision dated June 12, 2025, as upheld by a decision on the objection dated October 6, 2025. The action brought against this decision by the applicant and her children before this court is pending under file number S 31 AY 96/25.
Previously, after hearing the applicant, the respondent revoked the benefits granted to the applicant by decision of 15 January 2025, effective 11 April 2025, and granted her benefits under the Asylum Seekers' Benefits Act (AsylbLG) only to a limited extent from 11 April 2025 onwards, in accordance with Section 1a Paragraph 4 of the AsylbLG. To secure her livelihood and to cover the special needs of her children, the respondent granted benefits under Section 6 of the AsylbLG in the form of an additional allowance for single parents amounting to €158.76 per month. From May 2025, the applicant received monthly benefits totaling €355.76 (benefits under Section 1a of the AsylbLG amounting to €197 and the additional allowance of €158.76). The respondent limited the restriction of benefits to six months, thus reducing benefits for the period from April 11, 2025, to October 10, 2025. The applicant filed an objection on May 2, 2025. An application for preliminary legal protection filed with the Magdeburg Social Court on May 5, 2025, was unsuccessful (Case No.: S 25 AY 29/25 ER – Decision of June 12, 2025). In the appeal proceedings before the Higher Social Court of Saxony-Anhalt (Case No.: L 8 AY 18/25 B ER), the respondent recognized the claim and granted the applicant unrestricted benefits pursuant to Sections 3, 3a Paragraphs 1 and 2 of the Asylum Seekers' Benefits Act (AsylbLG).
By means of an "amendment notice" dated August 5, 2025, the respondent revoked the notice dated April 11, 2025, calculated the benefit entitlement for the period from April 11, 2025, and granted the applicant ongoing benefits from April 2025 onwards pursuant to Sections 3, 3a Paragraphs 1 and 2 of the Asylum Seekers' Benefits Act (AsylbLG) in the amount of the standard benefit level 2 (€397.00 per month) plus an additional allowance for single parenthood pursuant to Section 6 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Section 30 Paragraph 3 of the Twelfth Book of the Social Code – Social Assistance – (SGB XII) (€158.76).
The applicant filed an objection to the decision of August 5, 2025, by letter from her attorney dated August 14, 2025. The competent state administrative office rejected this objection as unfounded by decision dated October 6, 2025. The action brought by the applicant against this decision on November 9, 2025, is pending under file number S 31 AY 103/25.
On August 17, 2025, the applicant applied to the Social Court of Magdeburg for preliminary legal protection (S 31 AY 65/25 ER) and requested the granting of benefits according to standard benefit level 1, taking into account the grandfathering provision of Section 28a Paragraph 5 of the German Social Code, Book XII (SGB XII). By decision of September 3, 2025, the adjudicating chamber ordered the respondent to provisionally grant benefits according to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) at standard benefit level 1 for the period from August 17, 2025 to January 31, 2026 and rejected the application in all other respects. By implementing decision dated 11 February 2026, the respondent granted the applicant benefits in the amount of €618.80 (standard benefit level 1 plus additional needs for single parents) for the month of January 2026, which was the subject of the preliminary injunction proceedings, pointed out the amount of the benefit rate according to the Asylum Seekers' Benefits Act (AsylbLG) as announced by the Federal Ministry of Labour and Social Affairs from 1 January 2026 and that the benefits, if they were wrongly granted, would have to be reimbursed.
For the period beginning in February 2026, the respondent issued a "Notice of Amendment to Ongoing Benefits under the Asylum Seekers' Benefits Act" on February 11, 2026, revoking the benefit notices of January 15, 2025, and August 5, 2025, effective February 1, 2026, and granting the applicant and her children benefits totaling €1,312.60 per month. Of this amount, €572.80 was allocated to the applicant (basic benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act amounting to €409.00 [standard benefit level 2], plus additional needs allowance for single parents of €163.80).
On February 17, 2026, the applicant again requested preliminary legal protection and applied for higher basic benefits corresponding to standard benefit level 1. She argues – as she already did in proceedings S 31 AY 65/25 ER – 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 standard allowance for a single adult is only recognized 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 preliminary 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 action of 14 August 2025 against the respondent's decision of 5 August 2025 as amended by the objection decision of 6 October 2025, taking into account the legal opinion of the court.
The respondent requests that
the application be dismissed.
The respondent argues that there is no entitlement to higher benefits. For individuals living in communal accommodations, the provision of benefits for necessary personal needs and other necessary expenses is based on standard benefit level 2 according to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG). No other legal provision exists. The Ministry of the Interior and Sport of the State of Saxony-Anhalt decided by decree of March 29, 2023, that the decision of the Federal Constitutional Court (BVerfG) of October 19, 2022 (Case No.: 1 BvL 3/21) is not applicable to single adults receiving basic benefits under Sections 3 and 3a of the AsylbLG who are housed in communal accommodations. The Federal Constitutional Court only declared Section 2 Paragraph 2 Sentence 4 of the AsylbLG incompatible with the Basic Law, but not the provisions of Section 3a Paragraph 1 No. 2b and Section 2 No. 2b of the AsylbLG. The administration is bound by applicable law. The existing legal regulations will remain in effect.
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 amended decision of February 11, 2026, by which the respondent revoked his previous benefit decisions of January 15, 2025 and August 5, 2025, and granted the applicant (as a beneficiary in addition to her children) benefits again according to the standard benefit level 2 for the period from February 2026 onwards, should – at least with regard to the benefits granted to the applicant – have become the subject of the pending legal proceedings under file number S 31 AY 103/25 pursuant to Section 96 Paragraph 1 of the Social Court Act (SGG). By decision dated February 11, 2026, the respondent revoked the benefits previously granted on a permanent basis by decision dated August 5, 2025 (so-called permanent administrative act) pursuant to Section 48 of the German Social Code, Book X (SGB X), for the period from February 2026 onwards, and again granted the applicant benefits as an administrative act with permanent effect (from the month of February 2026) in the amount of the benefit rate published by the Federal Ministry of Labor and Social Affairs (BMAS) from January 1, 2026. By a prior decision of the Chamber dated September 3, 2025, in proceedings S 31 AY 65/25 ER, only a provisional arrangement until January 31, 2026, was made.
However, the amendment notice of 11 February 2026 for the period from February 2026 onwards 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, 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 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, 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 the proceedings pending there under file number B 8 AY 1/22 R by decision of September 26, 2024, and referred the question to the Federal Constitutional Court (BVerfG) 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 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 pending before the Federal Constitutional Court under file number 1 BvL 1/25.
In this respect, grounds for an injunction also 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 Chamber considers it necessary to limit the duration of benefits granted under the Asylum Seekers' Benefits Act (AsylbLG), which are generally considered permanent administrative acts, in preliminary injunction proceedings and has therefore issued a provisional ruling until December 31, 2026. This limitation appears particularly warranted in the present case in light of the pending proceedings before the Federal Constitutional Court (case no. 1 BvL 1/25).
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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