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 March 18, 2026, through its presiding judge, Judge xxx of the Social Court:
The respondent is ordered by way of preliminary injunction to grant the applicant, provisionally until 31 December 2026 and subject to the right of recovery, benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) in the standard benefit level 1, taking into account benefits already received, in accordance with the applicant's application of 19 February 2026 for review of the respondent's decision of 19 December 2025, from 27 February 2026 until a final and binding decision.
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 Somali national. According to her own statements, she entered the Federal Republic of Germany via Poland on June 30, 2024, and submitted an asylum application. She was granted a temporary residence permit for the purpose of processing her asylum application, most recently valid until July 22, 2026.
By order dated September 30, 2024, 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 (AsylG) and has since been living in communal accommodation at the address stated in the heading. By decision dated October 10, 2024, the respondent granted ongoing benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) (at the level of standard benefit rate 2) from September 30, 2024, until further notice. By decision dated December 12, 2024, the respondent revoked its decision of October 10, 2024, pursuant to Section 48 of the German Social Code, Book X (SGB X), with effect from January 1, 2025, and granted monthly benefits from January 2025 onwards in the amount of the benefit rate applicable from January 1, 2025 (€397.00) and issued the applicant the so-called SocialCard. On August 26, 2025, the applicant submitted a review application pursuant to Section 44 of the German Social Code, Book X (SGB X) regarding the decision of December 12, 2024, and essentially requested the granting of higher benefits.
By further decision dated 29 December 2025, the respondent, based on Section 48 of the German Social Code, Book X (SGB X), revoked his decision of 12 December 2024 and granted basic benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) from the month of January 2026 in the amount of the benefit rate announced by the Federal Ministry of Labour and Social Affairs from 1 January 2026 (€409.00).
By decision dated February 2, 2026, the respondent rejected the application for review of the decision dated December 12, 2024. The applicant, now represented by counsel, filed an objection to this decision by letter dated February 19, 2026, which was received on February 20, 2026, and requested – expressly limited to the period from January 1, 2025 to December 31, 2025 – the granting of basic benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) in a constitutionally compliant amount according to standard benefit level 1 and taking into account the grandfathering provision of Section 28a Paragraph 5 of the German Social Code, Book XII (SGB XII).
In further letters dated 19 February 2026, the applicant, through her legal representative, requested a review of the decision of 29 December 2025 as well as all decisions and amendment decisions issued in this context pursuant to Section 44 SGB X and requested access to the files.
On February 27, 2026, the applicant filed a request for preliminary legal protection with the Magdeburg Social Court, seeking higher basic benefits in accordance with standard benefit level 1. She argues, essentially citing relevant social court case law, that the provisions of Sections 3, 3a Paragraph 1 No. 2b, and Paragraph 2 No. 2b of the Asylum Seekers' Benefits Act (AsylbLG) are clearly 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 benefit for a single adult is recognized only at the level of standard benefit level 2. The BVerfG's decision is also applicable to the provisions of Section 3a Paragraph 1 Number 2 b 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 application of 19 February 2026 for review of the respondent's decision of 29 December 2025 (Note by the court: presumably meant 19 December 2025), taking into account the legal opinion of the court.
The respondent requests that
the application be dismissed.
The respondent argues that the applicant is not entitled to higher benefits. She lives in communal accommodation and does not receive benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG). For individuals living in communal accommodation, 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 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 of October 19, 2022 (Case No.: 1 BvL 3/21) is not applicable to single adults living in communal accommodation receiving basic benefits under Sections 3 and 3a of the AsylbLG. The Federal Constitutional Court declared only Section 2 Paragraph 2 Sentence 4 of the Asylum Seekers' Benefits Act (AsylbLG) incompatible with the Basic Law, but not the provisions of Section 3a Paragraph 1 Number 2b and Section 2 Number 2b of the AsylbLG. The administration is bound by applicable law. The statutory regulations 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 their rights. 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).
In cases where – as here – an application for a preliminary injunction is filed within the framework of ongoing review proceedings under Section 44 of the German Social Code, Book Ten (SGB X), particularly stringent requirements apply to the substantiation of the grounds for the injunction. Claims asserted in so-called "beneficial proceedings" under Section 44 SGB X concern legally binding decisions that are binding on all parties until their reversal in such proceedings (Section 77 of the German Social Court Act (SGG)). If a legally binding decision is to be revoked in such proceedings, applicants are generally expected to await the decision in the administrative proceedings and, if applicable, in subsequent main court proceedings (see Higher Social Court [LSG] Saxony-Anhalt, decision of January 8, 2010 - L 5 AS 415/09 B ER - juris para. 33; Higher Social Court Lower Saxony Bremen, decision of February 9, 2006 - L 7 AS 384/05 ER - juris para. 21). Because of the particularly stringent requirements for substantiating the grounds for the order, it is necessary to demonstrate massive infringements on social and economic existence with significant effects on living conditions (LSG Saxony-Anhalt, loc. cit.; Saxony LSG, decision of February 25, 2020 - L 8 AS 1422/19 B ER - juris para. 32) or if the administrative act to be reviewed is manifestly unlawful and the prospects of success of a review application are obvious (Saxony LSG, decision of November 13, 2024 - L 7 AS 379/24 B ER).
The court considers these strict requirements for a regulatory order in the case of a favorable proceeding to be met here. The standard benefit level 2 (€409.00) applicable in 2026 for benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) is €46.00, and thus slightly more than 10% higher than the benefit rate applicable in standard benefit level 1 (€455.00). Benefits under the Asylum Seekers' Benefits Act (AsylbLG) – unlike basic income support benefits under the German Social Code, Book II (SGB II) and Book XII (SGB XII) – are provided as a continuing administrative act and are therefore not limited in time. An amended decision revoking the previously issued relevant approval decisions is generally only issued after the Federal Ministry of Labor and Social Affairs has announced changes to the benefit rates or – for which there is no indication in this case – in connection with the initiation of measures to terminate residency. A significant shortfall in coverage of needs that persists over a longer period is also unreasonable for the applicant because the prospects of success in the main proceedings are considered to be predominantly probable.
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 19 December 2025, by which the applicant was granted basic benefits under the Asylum Seekers' Benefits Act (AsylbLG) for the period from January 2026 onwards, proves to be materially unlawful after the summary examination required in the preliminary legal protection proceedings.
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 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.
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 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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