Federal Constitutional Court - Press office -
Press release no. 56/2012 of 18 July 2012
Judgment of 18 July 2012
1 BvL 10/10
1 BvL 2/11
Provisions governing basic cash benefits provided for in the
Asylum Seekers Benefits Act held unconstitutional
Today, the Federal Constitutional Court pronounced its judgment on
submissions of the Higher Social Court of the state of North
Rhine-Westphalia (Landessozialgericht Nordrhein-Westfalen) on the
question whether the cash benefits paid according to the Asylum Seekers
Benefits Act (Asylbewerberleistungsgesetz – AsylbLG) to secure the
recipients’ existence are constitutional.
Facts of the Case
The Asylum Seekers Benefits Act came into effect November 1, 1993. It
established specific rules for the provision of minimum social benefits
for certain foreign nationals, which set significantly lower benefits
and primarily benefits in kind rather than cash, separate from the
substantive law applicable to Germans and those legally defined to be
similarly treated. The Asylum Seekers Benefits Act was passed in the
context of efforts by the then Federal Government between 1990 and 1993
to limit relatively high number of refugees coming to Germany, to step
up against abuse of the right to asylum, and to keep the cost of hosting
and providing general care to refugees low as well as primarily via
benefits in kind.
The personal scope of application of the Asylum Seekers Benefits Act has
been expanded over the years. Today, the Act is applicable to people who
live under widely different circumstances, legally and in fact. Those
who are eligible under the Asylum Seekers Benefits Act are asylum
seekers, war refugees and others in possession of a residence permit,
those tolerated and those who are subject to an enforceable order to
leave as well as their spouses, registered partners and children below
age.
The Asylum Seekers Benefits Act is a separate rule for social benefits,
apart from the Second and Twelfth Book of the Code of Social Law (SGB II
and XII). It distinguishes between basic benefits (§ 3 AsylbLG),
benefits for sickness, pregnancy and birth (§ 4 AsylbLG) and other
benefits (§ 6 AsylbLG). Moreover, § 2 AsylbLG provides that people
receive “analogous” regular and thus higher benefits based on the
Twelfth Book of the Code of Social Law (SGB XII) after a period of
receiving the low benefits for asylum seekers, the length of which the
legislature repeatedly extended.
The questions posed to the Federal Constitutional Court address the
basic benefits in the form of cash benefits. In § 3 AsylbLG, the
legislature has provided for benefits in kind to take priority over cash
benefits that may replace benefits in kind accord to § 3 sec. 2 AsylbLG.
The amounts of these cash benefits have been set by law that remained
unchanged since the introduction of the Asylum Seekers Benefits Act in
1993, although the now Federal Ministry of Labour and Social Affairs is
obliged, by § 3 sec 3 AsylbLG, with the consent of the Bundesrat, to
revise and eventually raise the amounts annually, to take effect January
1, if and to the extent necessitated in light of the actual cost of
living to satisfy existential needs.
The questions posed by the lower court arose in the following court
proceedings:
1 BvL 10/10
The plaintiff, born in 1977, arrived in Germany in 2003, applied for
asylum without success, and has since been tolerated (§ 60a sec 2
sentence 1 Aufenthaltsgesetz - Residence Act). He has since been living
in a communal shelter and received basic benefits based on § 3 AsylbLG,
most recently an amount of € 224.97. This amount consisted of a cash
amount based on § 3 sec 1 AsylbLG of € 40.90, and of benefits based on §
3 sec 2 AsylbLG of € 184.07, € 15.34 of which were set aside for
electricity in the shelter. The plaintiff sued for higher benefits. The
Social Court dismissed the claim.
Thereupon the plaintiff appealed to the Higher Social Court
(Landessozialgericht, LSG). This Court suspended the proceedings and
referred the case to the Federal Constitutional Court with the question
whether § 3 sec 2 sentence 2 No. 1 and § 3 sec 2 sentence 3 in
conjunction with sec 1 sentence 4 No. 2 AsylbLG are compatible with the
Basic Law (Grundgesetz, GG). The Higher Social Court takes the view that
those provisions violate the fundamental right to guarantee for a
dignified minimum existence, based on Article 1 sec 1 GG in conjunction
with Article 20 sec 1 GG. It argued that the basic benefits given to the
plaintiff amount to a good 31% less than the benefits that are designed
to ensure the existential minimum under SGB II and SGB XII, and were
thus - in light of the decision of the Federal Constitutional Court of 9
February 2010 (BVerfGE 125, 175) - evidently insufficient. The special
situation of asylum seekers could not justify this. Even if one would
not consider the benefits as evidently insufficient, the benefits were
not based on a constitutionally acceptable method to assess basic needs.
The question of the constitutionality of these provisions is decisive
for the judgment of the Higher Social Court.
1 BvL 2/11
The plaintiff, born in 2000 and at the time a foreign national, lives
with her mother in a privately rented accommodation. In 2007, the
plaintiff received basic benefits based on § 3 AsylbLG of € 132.93,
later of an amount of € 178.95. After her initial complaint against the
amount was rejected, she sued for higher benefits. The Social Court
dismissed the claim.
Thereupon, the plaintiff brought an appeal to the Higher Social Court.
This Court suspended the proceedings and referred the case to the
Federal Constitutional Court with the question whether § 3 sec 2
sentence 2 No. 2 and No. 3 and § 3 sec 2 sentence 3 in conjunction with
sec 1 sentence 4 No. 1 AsylbLG are compatible with the Basic Law. The
Higher Social Court considers these to be unconstitutional, based on the
reasons given in Case 1 BvL 10/10.
Decision of the Court:
The First Senate of the Federal Constitutional Court decided that the
provisions governing basic cash benefits according to the Asylum Seekers
Benefits Act are incompatible with the fundamental right to a minimum
existence, protected as human dignity in Article 1 sec. 1 in conjunction
with Article 20 sec. 1 of the Basic Law. The benefits are evidently
insufficient because they have not been changed since 1993 despite
considerable price increases in Germany. Furthermore, the amounts
provided have not been comprehensibly calculated, nor is it apparent
that a realistic, needs-oriented calculation has been made that serves
to presently secure the recipients’ existence.
The legislature is obliged to immediately enact new provisions in the
area of application of the Asylum Seekers Benefits Act which serve to
secure a dignified minimum existence. Because of the importance of basic
benefits to secure the recipients’ lives, the Federal Constitutional
Court has ordered a transitional arrangement that will apply until new
provisions enter into force. Pursuant to this transitional arrangement,
from 1 January 2011 onwards, basic benefits in the area of application
of the Asylum Seekers Benefits Act shall be calculated based on the
generally applicable provisions regarding the Second and Twelfth Book of
the Code of Social Law (Zweites und Zwölftes Buch des
Sozialgesetzbuches). This shall apply retroactively from 2011 onwards to
benefits that have been set but are still disputed; furthermore, it
shall apply until the legislature has complied with its obligation to
enact new provisions.
In essence, the decision is based on the following considerations:
1. Article 1 sec. 1 GG in conjunction with the principle of the social
welfare state in Article 20 sec. 1 GG establishes a fundamental right to
the guarantee a dignified minimum existence. It is the legislature that
must set the adequate amount of benefits. It may not be evidently
insufficient and must be ascertained realistically. This has already
been the starting point of the decision of the First Senate of the
Federal Constitutional Court regarding unemployment benefits in February
2010 (Decisions of the Federal Constitutional Court (Entscheidungen des
Bundesverfassungsgerichts – BVerfGE) 125, 175).
a) Article 1 sec 1 GG establishes the right to the guarantee of a
dignified minimum existence as a human right. German and foreign
nationals alike who have their residence in the Federal Republic of
Germany are entitled to it. Adequate benefits have to be ascertained in
light of the circumstances in Germany, the country in which this
existential minimum must be guaranteed. The Basic Law does not permit
the necessities of a dignified life in Germany to be assessed at a lower
level by referring to the existence level in the country of origin of
the person in need or to the existence level in other countries. Nor
does the constitution permit, in defining the details of existential
benefits, to differentiate across-the board in light of the recipient’s
residence status; the legislature must always take as its guideline the
concrete needs to secure a person’s existence.
The fundamental right to a guarantee of a dignified minimum existence
encompasses both the physical existence of an individual and the
possibility to maintain interpersonal relationships and a minimum of
participation in social, cultural and political life; these are needs to
be secured comprehensively. Article 1 sec. 1 GG provides, as a basic
guarantee, for a claim to benefits. The principle of the welfare state
in Article 20 sec. 1 GG calls upon the legislature to ascertain concrete
amounts according to the actual current and realistic needs of people.
Furthermore, the legislature is also obliged by further standards
resulting from European Union law and international law.
b) The benefits to secure a dignified minimum existence may not be
evidently insufficient and, to specify the fundamental rights claim, it
must be possible to calculate the amounts in a transparent and adequate
way, according to the actual and current needs, i.e. realistically.
These requirements do not refer to the legislative process but to its
results. The Basic Law leaves room for negotiations and political
compromise. It does not prescribe a specific method to ascertain
existential needs and to calculate benefits; this would restrict the
legislature’s margin of appreciation. However, if different methods are
used for different groups of persons, this must be justifiable by facts.
Apart from this, benefits to secure a person’s existence must be
continually reviewed and further developed.
Thus, whether and to what extent the need for existential of persons
with a temporary right of residence in Germany can be set by law as
different from the need of other persons in need depends solely on
whether one can comprehensibly ascertain specific lower needs exactly
because of a short period of staying in the country. If specific lower
needs can indeed be ascertained in the case of short-term residence that
is not intended to become permanent, and if the legislature wants to
take this into account in setting the amount of benefits, the
legislature must define the relevant group in such a way that it will
indeed cover, with sufficient probability, only those who stay in
Germany for a short time. A residence status may provide guidance, yet
the actual life circumstances must always be considered. Furthermore, a
restriction to lower benefits for a short stay is at any rate no longer
justified if the actual stay lasts considerably longer.
c) The legislature’s discretion assess the minimum existence corresponds
to a restrained Federal Constitutional Court’s review. Substantive
review is limited to examine whether benefits are evidently
insufficient; beyond this review of evident failure, the Federal
Constitutional Court examines whether benefits are currently
justifiable, based on reliable data and plausible methods of
calculation.
2. According to these standards, the provisions submitted do not meet
the requirements of the fundamental right to the guarantee a dignified
minimum existence.
a) The cash benefits specified in § 3 AsylbLG are evidently
insufficient. Their amount has not been changed since 1993 although the
price level in Germany has increased by more than 30 % since then. At
the time, the legislature had provided an adaptation mechanism in § 3
sec. 3 AsylbLG according to which the amount of benefits should have
been adapted in regular intervals to the current cost of living.
However, this has never happened. The evident insufficiency of the cash
benefits today is also illustrated by a comparison between benefits paid
to an adult head of a household according to the law in question with
the amount of benefits paid according to general welfare law of the
Second and the Twelfth Book of the Code of Social Law. The amount of the
latter was redefined only recently for the very reason of securing a
minimum existence. It is true that these benefits may not be directly
compared, but even an adjusted calculation results in a difference of
approximately one-third, and thus an evident deficit in securing a
dignified existence.
b) In addition, the basic cash benefits are not assessed realistically
and cannot be justified. The decision about the amount of benefits was
not based on reliable data when it was introduced, and is not based on
such data today. At the time, legislation was based on a mere estimate
of costs; even today, no comprehensible calculation has been submitted
or is anywhere in sight. This does not meet the requirements of the
Basic Law on securing a minimum dignified existence.
There are no indications of an assessment of the amount of cash benefits
to be inferred from the legislative history. It is neither apparent
which needs do actually exist in the case of a short stay, nor has it
been ascertained, for instance with regard to minors entitled to
benefits in the Asylum Seekers Benefits Act, whether there are
child-specific and age-specific needs. The documents merely specify the
amounts which, according to the Federal Government’s bill, were deemed
sufficient to cover an assumed need. The assumption on which the Asylum
Seekers Benefit Act is obviously based, namely that a short stay
justifies a lower amount of benefits, does not have a sufficiently
reliable basis. It also lacks a plausible explanation, transparent in
terms of its content, to demonstrate that typically, persons entitled to
benefits by the Asylum Seekers Benefits Act do only stay in Germany for
a short time. Since 1993, the scope of application of the Act has been
extended several times. Today, it covers persons with widely diverse
types of residence status, most of who have been staying in Germany for
more than six years. However, a short duration or a short perspective of
a stay in Germany does also not justify a reduction of the claim to the
mere guarantee of a dignified minimum physical existence, for the Basic
Law contains a comprehensive guarantee of benefits that encompass the
socio-cultural existential minimum as well. In addition, a dignified
existence must be ensured from the beginning of a stay in the Federal
Republic of Germany.
Also, migration-policy considerations of keeping benefits paid to asylum
seekers and refugees low to avoid incentives for migration, if benefits
were high compared to international standards, may generally not justify
any reduction of benefits below the physical and socio-cultural
existential minimum. Human dignity may not be relativised by
migration-policy considerations.
3. The transitional arrangement will result, for instance, in a
considerably higher than before cash benefit for the head of a
household, beyond the supply of benefits in kind which remain a
priority. To secure a dignified minimum existence for a month, a cash
benefit shall amount to 206 €, with an additional amount for personal
needs of daily life of 130 €, to be provided instead of benefits in
kind.
This press release is also available in the original german version.
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