The case concerned a Georgian applicant, born in 2006 and who had suffered of a chronic condition since birth. Due to his progressive disease, the applicant is of short stature, has severe bone growth disorders, a deformation and a pronounced multi-dimensional misalignment of the axis in the knee joints as well as permanent, severe pain. He needs a wheelchair. The diagnosis as from the medical file is: "hypophosphataemic rickets (phosphate diabetes), a chronic progressive disease based on a gene mutation with short stature, severe bone growth disorders, a deformation of the thorax as well as a pronounced multidimensional axial deformity in the knee joints which cause continuous pain depending on efforts". 

His parents travelled to Germany with him in 2022 to get better medical care for him and their asylum applications were rejected, but the appeals were still pending. The BAMF rejected the asylum applications of the child and his family members on grounds that there were no prohibitions to deportation, and that the disease was not to be classified as serious or life-threatening. Because they were not able to pay for their livelihood, the applicants were granted access to basic benefits under Article 3 of the Asylum Seekers Benefits Act between January – June 2023.

The doctors of the applicant and the health department were of the opinion that the applicant needs a surgery in a special clinic which will help him to walk without pain and aids, under certain conditions. The competent district refused to cover the costs of the surgery and alleged that the operation was not necessary in view of the applicant’s obligation to leave the country, the threat of deportation and temporary stay in Germany pending the outcome of the appeal. The district authorities considered also that the surgery was not essential as to ensure health or to cover for special needs of the children,

In the first instance appeal, the Braunschweig social court has ordered the district to bear the costs of the planned operation by way of a temporary injunction. In a second appeal, the Lower Saxony-Bremen Social Court confirmed the first instance decision.

The Senate of the social court stated that according to its case law on benefits for the medical treatment of minors under the Asylum Seekers Benefits Act, it is provided a fundamental right to guarantee a decent subsistence level. Also, it derives from the UN Convention on the Rights of the Child that a treatment measure that is medically necessary according to the local living conditions may not be refused with the argument that it is not essential to safeguard health. According to the court reasoning, the authority must rather specifically justify its refusal by referring and considering, in addition to the circumstances of the individual case, to the quality of the affected fundamental right. The court noted that from a medical point of view, there are considerable doubts as to whether the applicant’s current treatment with analgesics is preferable to a surgical correction of the deformations of the lower extremities caused by the permanent pain.

This would only be the case in the context of the necessity of the measure only if temporary pain medication compared to an operation is suitable (or even better) to treat the pain. In this case, it was assessed by the city’s health office that the applicant suffers – according to his anamnestic data and the corresponding responses of his doctor – of persistent pain impairing his night sleep with a very strong pain intensity (from 4 to 5 on a scale of 0 to 5) which can only be reduced to a limited extent by taking analgesics (to an intensity of 3). According to the Pain Sensitivity Scale for adolescents, the applicant described the pain as being “cruel, miserable, frightening, horrific, unbearable, burning and oppressive” in his view. In such circumstances, a pain medication can ­only constitute a temporary treatment. The court also noted that there is an ongoing appeal against the BAMF’s threat to deportation (decision of 23 May 2023), thus there is a prospect of a longer stay of the applicant in Germany. The court stated that the surgery with the operative correction of the lower extremities is probably the more appropriate measure.

In view of the abovementioned, the court noted that the prospect, as a result of the operation in this specific case, is that the applicant will no longer be dependent on a wheelchair in the future and may even be able to walk with little or no pain without aids. Based on the circumstances of the individual case, in particular the prognostic of a longer length of stay of the applicant in Germany, the court ruled that the measure to withhold the medically urgent measure for an underage applicant was not objectively justified.