Bundesverfassungsgericht

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The exclusion of foreign nationals with residence permits issued on humanitarian grounds from the federal child-raising allowance and the federal parental allowance is unconstitutional

Press Release No. 65/2012 of 29 August 2012

Order of 10 July 2012
1 BvL 2/10, 1 BvL 3/11, 1 BvL 4/10, 1 BvL 3/10

The Federal Child-Raising Allowance Act (Bundeserziehungsgeldgesetz - BErzGG), which was in force until 31 December 2006, in its 2006 version, which is relevant in the present proceedings, and the Federal Parental Benefit and Parental Leave Act (Bundeselterngeld- und Elternzeitgesetz - BEEG), which entered into force on 1 January 2007, make the granting of a child-raising allowance or a parental benefit to foreign nationals dependent on the type of residence title the person concerned possesses (§ 1 sec. 6 BErzGG and § 1 sec. 7 BEEG). The holder of a settlement permit (Niederlassungserlaubnis), which allows permanent residence, will always be entitled to an allowance or benefit. On the other hand, the holder of a residence permit (Aufenthaltserlaubnis), which is a temporary title, will generally only be entitled to an allowance or benefit if the residence permit authorises or has authorised him or her to pursue an economic activity. Even if they fulfil those criteria, foreign nationals who have been granted a residence permit under international law or on political or humanitarian grounds are not, as a rule, entitled to a child-raising allowance or a parental benefit. However, there is a provision for an exception to the exception for these persons. According to this provision, they are entitled to a child-raising allowance or a parental benefit if they have been legally resident in the territory of the Federal Republic of Germany for at least three years and satisfy one of the criteria for integration in the labour market specified in § 1 sec. 6 no. 3b BErzGG or § 1 sec. 7 no. 3b BEEG. This means that they must be employed, draw class I unemployment benefits, or take parental leave during the reference period in the territory of the Federal Republic of Germany.

During the relevant period in the case at hand, the plaintiffs in the original proceedings had been issued residence permits on humanitarian grounds, were entitled to pursue an economic activity and also satisfied the residency requirement of at least three years of legal residence. However, they did not satisfy the requirements of § 1 sec. 6 no. 3b BErzGG or § 1 sec. 7 no. 3b BEEG regarding integration in the labour market. The actions they brought for being granted a child-raising allowance or a parental benefit led the Federal Social Court (Bundessozialgericht), which considers the provisions under § 1 sec. 6 no. 3b BErzGG and § 1 sec. 7 no. 3b BEEG to be in violation of the general principle of equality before the law, to refer the case to the Federal Constitutional Court.

The First Senate of the Federal Constitutional Court declared the referred provisions void on the grounds that they violate the general principle of equality before the law in Article 3 sec. 1 of the Basic Law (Grundgesetz - GG) and the prohibition of discrimination on the grounds of gender under Article 3 sec. 3 sentence 1 GG.

The Decision is Essentially Based on the Following Considerations:

I. The referred provisions discriminate against the foreign parents concerned in an unconstitutional manner (Article 3 sec. 1 GG). They deny holders of residence permits issued on humanitarian grounds who do not satisfy the specified criteria of labour market integration a benefit which other parents with the same residence permit receive. This unequal treatment is not justified.

1. The specified requirements do in fact serve what is in principle a legitimate legislative objective, namely to restrict the granting of a child-raising allowance or a parental benefit to only those foreign nationals who are likely to stay permanently in Germany. The different length of stay in Germany may in principle justify unequal treatment in this case if the legislature wishes to promote a sustainable demographic development in Germany. This objective of the legislature would not be achieved if foreign nationals who were soon to leave the territory of the Federal Republic of Germany were granted the allowance or benefit.

2. The distinguishing criteria chosen by the legislature are, however, not suitable for achieving this objective because the length of stay of the persons concerned cannot be predicted on this basis. a) The possession of a residence permit issued on humanitarian grounds is not in and of itself a sufficient indication that the foreign national concerned will not stay in Germany permanently. According to the case-law of the Federal Constitutional Court and the European Court of Human Rights, the type of a residence title alone is not a suitable basis for predicting the length of a foreign national's stay. There is no reason for diverging from this assessment.

b) In addition, the criteria for integration in the labour market in the laws submitted are not an adequate basis for predicting the expected length of stay. It is true that they have a certain probative value in respect of the integration in the labour market of the persons concerned around the time of the birth of their child and could thus be regarded as an indication that such persons have a chance of obtaining permanent residency. This does not, however, justify the contrary argument that it must be assumed that persons who do not satisfy these requirements will not stay permanently in Germany. In fact, holders of a residence permit issued on humanitarian grounds do not, as a rule, return to their country of origin for as long as the reasons that gave rise to the issue of the residence permit continue to be valid; in these cases, their integration in the labour market does not play a role. Furthermore, a foreign national's inability to satisfy the specified criteria regarding the integration in the labour market is also not of such significance for the extension of the residence title as to be a negative predictor of the chances of obtaining a settlement permit. This is because according to the Residence Act (Aufenthaltsgesetz), a foreign national does not necessarily have to be able to support him or herself in order to obtain an extension of his or her residence permit issued on humanitarian grounds.

In addition, it is not the case that the foreign national holding a residence permit on humanitarian grounds has no prospect of obtaining a settlement permit and the related unlimited right of residence if he or she fails to satisfy the employment-related requirements; the latter therefore does not indicate that he or she does not have a prospect of staying permanently in Germany. The fact that the criteria are not satisfied during the period in which a parental benefit or child-raising allowance could be paid does not indicate that a settlement permit will not be issued later. The criteria specified in the referred provisions are not suitable to predict, regarding the grant of a settlement permit, whether the person concerned will be able to support him or herself without recourse to public funds in the future. For one thing, they only consider a short reference period and ignore integration in the labour market at other times. In addition, the requirements use as their point of reference a period of time - namely the first 14 or 24 months of a child's life - during which, due to the birth of the child, it is difficult especially for parents to pursue an economic activity or be available to the labour market as is required in order to be entitled to class I unemployment benefits. The same applies in the case of the third alternative, namely the taking of parental leave, which is almost impossible in the period after the birth of a child unless a parent has entered into an employment relationship prior to the birth of the child and such employment relationship has continued to be valid during the reference period.

In addition, a requirement that a parent pursue an economic activity or be available to the labour market during the first months of a child's life is contrary to the objective sought to be achieved by the legislature through the granting of a parental benefit or child-raising allowance, namely to give parents the opportunity to look after their children themselves during their first months of life without undergoing financial difficulties. II. Moreover, the provisions violate the prohibition of discrimination on the grounds of gender under Article 3 sec. 3 sentence 1 GG. They discriminate against women in comparison to men since they make the right to receive a child-raising allowance or a parental benefit dependent on satisfying labour-market-related requirements which women have more difficulty in satisfying than men. Women are not available to the labour market for legal reasons during the first eight weeks after the birth of a child. In addition, from a practical point of view, mothers who are breastfeeding are faced with problems if they seek to pursue an economic activity. A provision that is not gender specific or based on criteria which can from the outset only relate to women or only relate to men, but which nonetheless discriminates against women in comparison to men for legal or practical reasons connected with maternity, is subject according to Article 3 sec. 3 sentence 1 GG to strict standards of justification. The referred provisions must therefore be measured by these standards. It is true that their wording is gender neutral. However, the discrimination of women that they give rise to is closely connected with the legal and biological state of motherhood. This discrimination against women cannot be justified if for no other reason than that the specified criteria for differentiation do not enable the legislature to achieve its objective of covering cases involving a probably long length of stay (see I.).