Section 1a, paragraph 7 of the Asylum Seekers' Benefits Act (AsylbLG) was repealed, and the affected group of people (refugees in the Dublin procedure) were assigned a complete exclusion from benefits under Section 1, paragraph 4 of the AsylbLG. Cash benefits are therefore prohibited, and the so-called "unavoidable" provision has been reinstated. This is already unconstitutional.
In the case concerning the repealed Section 1a Paragraph 7 of the Asylum Seekers' Benefits Act (AsylbLG), the Federal Social Court, in its decision of July 26, 2024, in the proceedings under file number B 8 AY 6/23 R, even suspended the legal proceedings and referred several questions concerning the interpretation of the Reception Directive (Directive 2013/33/EU) in conjunction with the Dublin III Regulation to the European Court of Justice for a preliminary ruling pursuant to Article 267 of the Treaty on the Functioning of the European Union. If the reduced benefits under Section 1a Paragraph 7 of the AsylbLG are contrary to EU law, then the exclusion from benefits is all the more so.
Update 20.02.2025: Meanwhile, due to the likely incompatibility of the regulation in Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) with European law, the social courts of Landshut, Darmstadt and Karlsruhe have provisionally ordered the respective competent authorities to pay basic benefits (Social Court Landshut, decision of 18.12.2024, file no.: S 11 AY 19/24 ER; Social Court Darmstadt, decision of 04.02.2025, file no.: S 16 AY 2/25 ER; Social Court Karlsruhe, decision of 19.02.2025, file no.: S 12 AY 424/25 ER).
Update 21.02.2025: The Trier Social Court, in its decision of 20.02.2025 under file number S 3 AY 4/25 ER, provisionally ordered the responsible benefits authority to grant basic benefits under the Asylum Seekers' Benefits Act (AsylbLG):
Summary of the decision:
- The BAMF's previous decisions do not contain any conclusive finding that departure is legally and practically possible. However, such a finding by the BAMF is a necessary element of the case.
- Section 1 paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) is likely to be contrary to European law.
- Any doubts regarding the conformity of Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) with European law must, within the framework of the balancing of interests required to grant effective preliminary legal protection, be resolved in favor of the applicant and lead to a preliminary obligation on the part of the respondent to provide benefits.
Update 02.03.2025: The Speyer Social Court, in its decision of 20.02.2025 under file number S 15 AY 5/25 ER, joined the criticism of the social courts regarding the exclusion of benefits under Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) and provisionally ordered basic benefits in expedited proceedings, since in the main proceedings Section 1 Paragraph 4 of the AsylbLG would also have to be submitted to the Federal Constitutional Court for review regarding its unconstitutionality.
Update 25.03.2025: The Trier Social Court, however, has in eight rulings obligated the social welfare authorities of the municipalities of Hermeskeil, Konz and the city of Trier to continue to grant basic benefits in accordance with Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) at the standard benefit level 1, because the regulation in Section 1 Paragraph 4 of the AsylbLG is likely to be contrary to European law.
Update 25.03.2025: The Social Court of Mainz, in its decision of 24.03.2025 under file number: S 10 AY 2/25 ER, also joined the criticism of the exclusion of benefits under Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) and considers the regulation to be likely unconstitutional and contrary to European law.
Update 11.04.2025: The Speyer Social Court has also ordered the Supervisory and Service Directorate (ADD) to provisionally grant full basic benefits in accordance with Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) to a person in the reception center for asylum seekers (AFA) in Kusel whose benefits were reduced without a decision, due to the likely incompatibility of the exclusion from benefits under Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) with European law.
Update 11.04.2025: Due to the likely incompatibility with European law of the exclusion from benefits under Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG), the Gießen Regional Council has also ordered the Gießen Regional Council to provisionally grant full basic benefits in accordance with Sections 3 and 3a of the AsylbLG.
Update 16.04.2025: The Social Court of Trier has also ordered the Supervisory and Service Directorate (ADD) to provisionally grant full basic benefits in accordance with Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) to a person whose benefits were reduced without notice in the reception center for asylum seekers (AFA) in Hermeskeil, due to the likely incompatibility of the exclusion from benefits under Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) with European law.
Update 08.05.2025: Due to the likely incompatibility with European law of the exclusion from benefits under Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG), the Social Court of Kassel has also ordered the Regional Council of Gießen to provisionally grant full basic benefits in accordance with Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG).
Update June 14, 2025: In a decision dated June 13, 2025, under file number L 8 AY 12/25 B ER, held that a concrete possibility of departure to the responsible member state is only established after the transfer process has been organized in cooperation between the Federal Office for Migration and Refugees (BAMF), the immigration authorities or the Federal Police, and the responsible member state, and that there is no legal entitlement to voluntary departure. According to this ruling, the transfer procedure does not recognize the regular institution of voluntary departure, and transfers always take place within the framework of an officially supervised procedure, even if the person concerned initiates voluntary departure. Therefore, the positive determination by the BAMF of the legally and factually possible departure is a mandatory prerequisite under Section 1 Paragraph 4 Sentence 1 No. 2 of the Asylum Seekers' Benefits Act (AsylbLG), which is not the case here. The person concerned is not even legally able or permitted to leave voluntarily because a transfer was never prepared. The conditions for the application of Section 1 Paragraph 4 Sentence 1 No. 2 of the Asylum Seekers' Benefits Act (AsylbLG) are therefore not met if the transfer has not been prepared.
Update 26.06.2025: Due to the likely incompatibility with European law of the exclusion from benefits pursuant to Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG), the Chemnitz Social Court has ordered the Vogtland district to provisionally grant full basic benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG).
Affected group of people:
All recipients of basic benefits who have received an exclusion notice pursuant to Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG).
Practical approach:
We advise all recipients of basic benefits who have received an exclusion notice pursuant to Section 1 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) to file an objection and a lawsuit against the reduction notice.
Even if the objection period has already expired, legal action can be taken by submitting so-called review applications!
