VERDICT
in the legal dispute
xxx,
– Plaintiff –
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
– Defendant –
The 9th Chamber of the Stuttgart Social Court,
without oral proceedings,
rendered the following judgment on July 23, 2026, in Stuttgart, through Judge xxx (further supervising judge) as presiding judge and the lay judges xxx and xxx:
I. The decision of December 5, 2025, as amended by the appeal decision of March 19, 2026, is overturned. The defendant is ordered to grant the plaintiff basic benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) in the legally prescribed amount, effective January 1, 2026.
The defendant shall bear the plaintiff's extrajudicial costs.
II. The plaintiff is granted legal aid without installment payments, with the appointment of attorney Adam.
FACTS
The plaintiff is challenging 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 plaintiff, born in 1987 and presumably Somali, first entered the federal territory on October 4, 2024, and holds a residence permit until June 1, 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 defendant notified the plaintiff of its intention to discontinue benefits as of January 1, 2026. The plaintiff did not respond.
By decision dated 5 December 2025, the defendant 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 plaintiff filed an objection to this on December 15, 2026. On January 6, 2026, she filed an application for preliminary legal protection with the Stuttgart Social Court (SG). By order dated February 19, 2026, the SG ordered the defendant to grant provisional benefits from January 6, 2026.
By decision on objection dated 19.3.2026, the defendant rejected the plaintiff's objection as unfounded.
The lawsuit filed on March 23, 2026, is directed against this.
The plaintiff considers the provision of Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) to be contrary to European law. She further argues that the requirements of Section 1 Paragraph 4 Number 2 of the 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.
The plaintiff requests (properly worded)
that the defendant's decision of December 5, 2025, as amended by the appeal decision of March 19, 2026, be overturned and that the defendant be ordered to grant the plaintiff basic benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) in the statutory amount from January 1, 2026, and to grant the plaintiff legal aid with the appointment of attorney Sven Adam, Göttingen.
The defendant requests that
the action be dismissed.
The defendant considers its decisions to be lawful and argues that the plaintiff is no longer entitled to benefits pursuant to Section 1 Paragraph 4 Sentence 1 No. 2 AsylbLG.
The parties have agreed to a decision without oral proceedings.
For further details of the facts, reference is made to the electronically maintained court file.
REASONS FOR DECISION
The admissible, in particular permissible, combined action for annulment and performance (§ 54 para. 1, 5 SGG) on which the chamber decides with the consent of the parties without oral proceedings pursuant to § 124 para. 2 SGG, is well-founded.
The decision of December 5, 2025, as amended by the appeal decision of March 19, 2026, is unlawful and infringes the plaintiff's rights. She is entitled to basic benefits under 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 Number 2 of the Asylum Seekers' Benefits Act (AsylbLG) are not met. Furthermore, the exclusion under Section 1 Paragraph 4 of the AsylbLG is contrary to European law.
According to Section 1 Paragraph 4 Sentence 1 No. 2 of the Asylum Seekers' Benefits Act (AsylbLG) (in the version applicable until June 11, 2026), 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 of the Asylum Act (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 AsylbLG.
Although the plaintiff has been subject to an enforceable obligation to leave the country 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).
Furthermore, the applied regulation is contrary to European law, which follows logically from the ECJ's decision on the predecessor regulation of Section 1a Paragraph 7 AsylbLG, which merely provided for a reduction in benefits (BSG, referral decision of 25 July 2024 – B 8 AY 6/23 R –; ECJ, judgment of 4 June 2026 – Case C-621/24 –; both in juris).
The decisions were therefore to be overturned and the appeal granted.
The decision on costs is based on § 193 SGG and takes into account that the action was successful.
II. In view of the sufficient prospects of success and the need for legal aid, the plaintiff was also to be granted legal aid, whereby only the public treasury has the right to appeal in this respect.
The following is information on legal remedies.
