Order of 15 April 2026

Table of contents

1. 1

   A. Facts of the case

2. 82

   B. Admissibility

3. 114

   C. Decision on the merits

4. 115

   I. Scope of review

5. 116

   II. Standard of review: Fundamental right to an existential minimum in accordance with
   human dignity under Art. 1(1) in conjunction with Art. 20(1) of the Basic Law

6. 133

   III. Application of the law to the present case
   

   1. 134

      1. Benefits not manifestly inadequate

   2. 135

      2. Sound reasons for the level of benefits
      

      1. 136

         a) Special evaluation of the sample survey of household income and expenditure as underlying data

      2. 137

         b) No consideration of expenditure items in sample survey sections 9 (leisure, entertainment, culture) and 10 (education)

         1. 138

            aa) Needs obtained through assessment      

         2. 139

            bb) Reasons for the assessment
            

            1. 140

               (1) Standard

            2. 141

               (2) Application to the present case
               

               1. 142

                  (a) Link to uncertain long-term residence prospects

               2. 143

                  (b) Failure to take into account specific categories of expenditure

         3. 159

            cc) Uncertain prospects of long-term residence, § 2(1) Asylum Seekers Benefits Act (former version)

      3. 171

         c) Decision not to include expenditure items in sample survey sections 5(household items), 6 (healthcare) and 12 (other goods and services)

      4. 179

         d) No group-specific additional needs

      5. 190

         e) Offsetting of benefits

   3. 193

      3. Plausibility of the calculated level of benefits
      

      1. 194

         a) Need level 1

      2. 195

         b) Need level 5

   4. 198

      4. Failure to update the level of benefits
      

      1. 199

         a) Standard

      2. 200

         b) Application to the present case
         

         1. 201

            aa) Completion of the 2013 sample survey

         2. 202

            bb) Two-year period

         3. 205

            cc) Discontinuity

   5. 206

      5. Overall assessment
      

      1. 207

         a) Hypothetical additional amounts

      2. 210

         b) No other plausible reasons

7. 222

   D. Legal consequences

8. 226

   E. Outcome of the Justices’ vote

R e a s o n s :

A.

1

The specific judicial review proceedings concern the question of whether the level of basic welfare benefits that could be claimed under the Asylum Seekers Benefits Act (Asylbewerberleistungsgesetz – AsylbLG) in September 2018 by a single parent and her seven-year old child who were not living in a reception centre during the first 15 months of their residency in Germany was compatible with the Basic Law (Grundgesetz – GG).

I.

2

In principle, persons in need receive state support in the form of social assistance under the Twelfth Book of the Code of Social Law (Zwölftes Buch Sozialgesetzbuch – SGB XII) or in the form of basic income support for job seekers under the Second Book of the Code of Social Law (Zweites Buch Sozialgesetzbuch – SGB II). The Asylum Seekers Benefits Act establishes special rules for a group in need comprised of foreign nationals that is set out therein (cf. Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 132, 134 <137 ff. paras. 2 ff.>; 163, 254 <256 para. 2> – Reduced benefit level in Asylum Seekers Benefits Act). After benefit recipients have resided in Germany for a certain period of time, the provisions of the Twelfth Book of the Code of Social Law apply accordingly. However, during the initial period of their residency in Germany rules apply that, while based on the Twelfth Book of the Code of Social Law, partially deviate from it.

3

1. a) Benefits to guarantee the necessary means of subsistence are granted in the form of standard needs in the Twelfth Book of the Code of Social Law, with the exception of needs for housing and heating, which are borne in their actual amount, insofar as it is appropriate (cf. § 35 Twelfth Book of the Code of Social Law). These standard needs comprise both means to secure someone’s physical existence (cf. § 27a(1) first sentence Twelfth Book of the Code of Social Law) and means to ensure, ‘within reasonable limits’, their ‘participation in social and cultural life within society’ (cf. § 27a(1) second sentence Twelfth Book of the Code of Social Law). In the law on basic income support for job seekers, these needs are recognised accordingly as standard needs (cf. § 20(1a) first sentence Second Book of the Code of Social Law).

4

The standard needs are flat rate amounts calculated on a monthly basis (cf. 27a(2) first sentence Twelfth Book of the Code of Social Law). The intent is for beneficiaries to independently manage the overall budget they receive (in this regard Bundestag document, Bundestagsdrucksache – BTDrucks 18/9984, p. 27) and to cover any greater needs by offsetting them against other needs or by setting aside funds over time (cf. BVerfGE 125, 175 <253>; 137, 34 <92 para. 119>), i.e. to independently handle the benefits (cf. § 27a(3) second sentence Twelfth Book of the Code of Social Law). It is only possible to deviate from the determination of standard needs on account of the special circumstances of the individual case if the conditions of § 27a(4) of the Twelfth Book of the Code of Social Law have been met. Since 1 January 2011, standard needs have been determined outside the scope of the Twelfth Book of the Code of Social Law in the framework of a law assessing standard needs. In September 2018, the relevant Act was the Act Assessing Standard Needs Pursuant to § 28 of the Twelfth Book of the Code of Social Law (hereinafter: the 2017 Act), which took effect as Art. 1 of the Act Assessing Standard Needs and Amending the Second and Twelfth Book of the Code of Social Law of 22 December 2016 (Federal Law Gazette, Bundesgesetzblatt – BGBl I p. 3159) and applied from 1 January 2017 until 31 December 2020. In the period from 1 January 2011 to 31 December 2016, an Act with the same name (hereinafter: the 2011 Act) that took effect as Art. 1 of the Act Assessing Standard Needs and Amending the Second and Twelfth Book of the Code of Social Law of 24 March 2011 (BGBl I p. 453) applied.

5

Standard needs are differentiated into six standard need levels, which are in principle based on age, form of accommodation and the type of personal relationships with fellow occupants (cf. in September 2018, § 27a(2) second sentence Twelfth Book of the Code of Social Law as amended by the Act Assessing Standard Needs and Amending the Second and Twelfth Book of the Code of Social Law of 24 March 2011 (BGBl I p. 453)), which applied from 1 January 2011 to 31 December 2020. Standard need level 1 provides the highest possible amount of benefits. It applies to single adults (cf. for 2017 to 2020: § 8(1) first sentence no. 1 of the 2017 Act). Standard need level 2 applies to persons living together; from 2017 to 2020, it applied to adults who shared accommodation with their spouse, civil partner or partner with whom they lived together in a relationship akin to marriage or civil partnership (cf. § 8(1) first sentence no. 2 of the 2017 Act). In the period from 2017 to 2020, standard need level 3 covered adults confined in an inpatient institution (cf. § 8(1) first sentence no. 3 of the 2017 Act). Standard need levels 4 through 6 apply to children and youths. Children aged five and under are subject to standard need level 6, children aged six to thirteen are subject to standard need level 5 and youths aged fourteen to seventeen are subject to standard need level 4 (cf. § 8(1) first sentence no. 4 through 6 of the 2017 Act).

6

Standard needs are calculated on the basis of a special evaluation of the applicable sample survey of household income and expenditure (Einkommens- und Verbrauchstichprobe – EVS, hereinafter: sample survey; cf. § 28 Twelfth Book of the Code of Social Law). The sample survey is conducted every five years by the Federal Statistical Office in accordance with the Act on Statistics on the Economic Accounts of Private Households ([…]). It concerns the living conditions of private households. It is designed to measure the income, assets, debts and spending habits of households in Germany. The expenditure items relevant to standard needs are allocated to different sections of the sample survey. Section 1 covers food and beverages, section 2 alcoholic beverages and tobacco, section 3 clothing and shoes, section 4 housing, energy and home maintenance, section 5 home furnishings, household appliances and ongoing household expenses (household items), section 6 healthcare, section 7 transport, section 8 communication, section 9 leisure, entertainment and culture, section 10 education, section 11 hospitality and section 12 other goods and services (for 2017 to 2020, cf. § 6(1) of the 2017 Act).

7

In the special evaluation, a separate analysis of spending habits of the lower income groups from the sample survey is carried out to assess standard needs (so-called reference households). For single person households, these are the lower 15% of all households; for families, the lower 20% are taken into account (cf. for 2017 to 2020: § 4(1) second sentence of the 2017 Act). This is based on the assumption that higher income groups spend a growing proportion of their income on items that go beyond what is necessary to secure the existential minimum (cf. BVerfGE 137, 34 <82 para. 97>).

8

Moreover, not all amounts assessed in the individual sections of the special evaluation are used for assessing standard needs. The legislator categorises certain expenditure items as not relevant to standard needs and does not take into account the relevant amounts for assessing standard needs; this concerns spending on motor vehicles, alcoholic beverages and tobacco, cut flowers and houseplants, canteen food, dry-cleaning, job interviews and testing fees (cf. in particular BTDrucks 18/9984, p. 24). In addition, with respect to children and youths certain needs for education and participation are not taken into consideration for determining standard needs because they are provided separately (cf. § 34(1) Twelfth Book of the Code of Social Law; BVerfGE 155, 310 <329 paras. 47 ff.> – Municipal Education Package). These include expenditure for tutoring, school trips and excursions (cf. § 34(2) and (5) Twelfth Book of the Code of Social Law; cf. for the 2011 Act BTDrucks 17/3404, p. 73; cf. for the 2017 Act BTDrucks 18/9984, p. 59). Needs for ‘other consumer goods’ (2008 sample survey) and ‘stationery, art supplies and other consumer goods’ (2013 sample survey) from section 9 are paid separately under the basic school package for children aged 6 and over (§ 34(3) Twelfth Book of the Code of Social Law; cf. for the 2011 Act BTDrucks 17/3404, pp. 72 f.; cf. for the 2017 Act BTDrucks 18/9984, pp. 58, 67; see in this regard BVerfGE 137, 34 <97 f. para. 135>). Needs for ‘extracurricular classes and hobby courses’ (2008 sample survey) and ‘extracurricular sports and music lessons and hobby courses’ (2013 sample survey) from section 9 are provided separately, together with the needs for ‘membership fees for non-profit organisations’ (2008 sample survey) and ‘membership fees for associations, political parties etc.’ (2013 sample survey), in the framework of the participation package [for children and youths] (§ 34(7) Twelfth Book of the Code of Social Law; cf. for the 2011 Act BTDrucks 17/3404, pp. 72, 106; cf. for the 2017 Act BTDrucks 18/9984, pp. 58 f., 67; see in this regard BVerfGE 137, 34 <95 f. para. 130>).

9

When the results of a new special evaluation are available, § 28(1) of the Twelfth Book of the Code of Social Law provides for the benefit rates to be reassessed on the basis of a federal law. The Act Assessing Standard Needs 2017, which was applicable in September 2018 and had been in force since 1 January 2017, implemented the special evaluation of the 2013 sample survey; the previously applicable Act Assessing Standard Needs 2011 had been based on the special evaluation of the 2008 sample survey. As several years had passed between the conduct of the respective sample survey and the entry into force of the Act Assessing Standard Needs, and the sample survey figures had consequently lost some of their relevance, the legislator, when enacting the respective Act Assessing Standard Needs, extrapolated the amounts resulting from the special evaluation of the sample survey to the year of the Act’s entry into force using a composite index, which is otherwise applied for the updating of benefits in the years between two reassessments (cf. para. 10; cf. § 7(1) of the 2011 Act; § 7(1) of the 2017 Act).

10

In years in which the legislator does not reassess standard needs on the basis of a new sample survey, benefit amounts are updated with effect from 1 January by ordinance in accordance with § 40 first sentence no. 1 in conjunction with § 28a of the Twelfth Book of the Code of Social Law. The rate of change underlying this update is derived from § 28a of the Twelfth Book of the Code of Social Law (see, in addition, the transitional rule in § 138 of the Twelfth Book of the Code of Social Law in the version applicable from 1 January 2011 to 31 December 2015 as the Act Assessing Standard Needs and Amending the Second and Twelfth Book of the Code of Social Law of 24 March 2011 <BGBl I p. 453>). Pursuant to § 28a(2) third sentence of the Twelfth Book of the Code of Social Law in the version applicable from 1 January 2011 to 30 June 2021 as the Act Assessing Standard Needs and Amending the Second and Twelfth Book of the Code of Social Law of 24 March 2011 (BGBl I p. 453), benefits were to be updated based on a composite index made up by 70% of the price development of the goods relevant to standard needs and by 30% of the development of net wages and salaries. To this end, the change which occurred between 1 July of the year before the previous year and 30 June of the previous year was compared with the preceding twelve-month period. For 2018, the benefit amounts newly determined for 2017 by the Act Assessing Standard Needs 2017 were updated by the Ordinance to Update Standard Need Levels 2018 of 8 November 2017 (2018 Ordinance; BGBl I 2017 p. 3767) with an adjustment rate of 1.63% (cf. § 1 2018 Ordinance).

11

b) The provision of healthcare services to recipients of social assistance is primarily governed by § 264(2) of the Fifth Book of the Code of Social Law. Under this provision, statutory health insurance providers are responsible for providing healthcare to recipients of social assistance. Pursuant to § 264(7) of the Fifth Book of the Code of Social Law, the social welfare provider must reimburse health insurance providers for the costs incurred by them. Thus, recipients of social assistance ultimately receive the same care as persons with statutory health insurance. §§ 47 ff. of the Twelfth Book of the Code of Social Law sets out a subsidiary claim to healthcare.

12

2. Since 1993, the Asylum Seekers Benefits Act has contained special provisions regarding subsistence benefits, including for asylum seekers in need, persons with temporary suspensions of deportation (Duldung), and foreign nationals who are subject to an enforceable order to leave the country. After a certain period of time, these groups also receive benefits as the Twelfth Book of the Code of Social Law is applied accordingly pursuant to § 2(1) of the Asylum Seekers Benefits Act (so-called analogous benefits); until then, however, separate provisions apply to these groups. They receive so-called basic welfare benefits pursuant to § 3 of the Asylum Seekers Benefits Act (since 1 September 2019 § 3 together with § 3a of the Asylum Seekers Benefits Act), which are granted directly upon entry into Germany.

13

At the end of 2018, approximately 411,000 persons received benefits under the Asylum Seekers Benefits Act (Press Release No. 359 of the Federal Statistical Office of 16 September 2019). In 2018, the average period during which (basic and analogous) benefits under the Asylum Seekers Benefits Act were received across Germany was 23.7 months (cf. BTDrucks 19/16747, p. 18).

14

a) The group of persons eligible for benefits under the Asylum Seekers Benefits Act is set out in § 1 of the Act. In September 2018, the month at issue in the initial proceedings, the version of the Act amended by the Act to Accelerate Asylum Procedures of 20 October 2015 (BGBl I p. 1722), in effect from 24 October 2015 to 20 August 2019, was applicable. It read, in relevant part, as follows:

§ 1 of the Asylum Seekers Benefits Act – Beneficiaries

(1) Beneficiaries under this Act are foreigners who are resident in the federal territory and who

1. have permission to remain pending the asylum decision (Aufenthaltsgestattung) under the Asylum Act (Asylgesetz),

2. wish to enter via an airport and are not or not yet permitted to enter,

3. hold a residence permit

a) due to war in their home country pursuant to § 23(1) or § 24 of the Residence Act (Aufenthaltsgesetz)

b) pursuant to § 25(4) first sentence of the Residence Act or

c) pursuant to § 25(5) of the Residence Act, provided that the decision to suspend their deportation was made less than 18 months ago,

4. hold a temporary suspension of deportation pursuant to § 60a of the Residence Act,

5. are subject to an enforceable order to leave the country, even if a deportation order is not yet or no longer enforceable,

6. are spouses, civil partners or minor children of the persons listed in numbers 1 through 5 who do not themselves meet the criteria set out therein, or

7. are lodging a follow-up application pursuant to § 71 of the Asylum Act or a secondary application pursuant to § 71a of the Asylum Act.

(2) through (3) (…).

15

b) In § 3 (in the version of the Asylum Seekers Benefits Act applicable from 1 September 2019 together with § 3a), §§ 4, 6 and 7 of the Asylum Seekers Benefits Act, the legislator created separate provisions for benefit claims to guarantee subsistence for the beneficiaries under § 1 of the Asylum Seekers Benefits Act (see aa) through cc) below). On expiry of the period set out in § 2(1) of the Asylum Seekers Benefits Act, beneficiaries receive so-called ‘analogous benefits’ as the Twelfth Book of the Code of Social Law is applied accordingly (see dd) below).

16

aa) Basic welfare benefits to guarantee subsistence are set out in § 3 of the Asylum Seekers Benefits Act (from 1 September 2019 together with § 3a of the Asylum Seekers Benefits Act). These can be claimed in case of need in the period directly following entry into Germany. The basic welfare benefits are lower than the benefits to guarantee subsistence under the Twelfth Book of the Code of Social Law. One of the reasons given by the legislator is that persons falling within the scope of application of § 1 of the Asylum Seekers Benefits Act typically only reside in Germany for short periods of time and for a temporary purpose, whereas the law of social assistance is geared towards persons who are integrated in Germany and stand ‘on their own feet’ there ( BTDrucks 12/4451, p. 5; 13/2746, pp. 11 f.). Since the entry into force of the Asylum Seekers Benefits Act, basic welfare benefits have been characterised by a distinction between basic needs for food, housing, heating, clothing, healthcare, personal care and household goods on the one hand and further benefits to cover personal needs of daily life on the other ([…]). Moreover, a distinction is made based on whether beneficiaries live in a reception centre pursuant to § 44 of the Asylum Seekers Benefits Act or elsewhere. In the former case, a greater proportion of benefits can be provided as benefits in kind, and this may even be required by law (cf. in September 2018 § 3(1) second and third sentence Asylum Seekers Benefits Act in the version of the Act Amending the Asylum Seekers Benefits Act and the Social Courts Act of 10 December 2014 <BGBl I p. 2187>; presently § 3(2) first and second sentence Asylum Seekers Benefits Act).

17

bb) § 4 of the Asylum Seekers Benefits Act sets out a separate entitlement to healthcare services. This is smaller in scope than the range of services provided by statutory health insurance providers and primarily concerns acute care (‘lowered entitlement to healthcare services’, cf. Decisions of the Federal Social Court, Entscheidungen des Bundessozialgerichts – BSGE 134, 6 <11 para. 23>).

18

cc) § 6 of the Asylum Seekers Benefits Act provides for the possibility of providing additional benefits besides those set out in §§ 3 and 4 of the Asylum Seekers Benefits Act. Under § 6(1) first sentence of the Asylum Seekers Benefits Act in the version of the Act Amending the Residence Act and Other Acts of 15 March 2005 (BGBl I p. 721), in force since 18 March 2005, other benefits can be provided if they are absolutely necessary in the particular case to guarantee someone’s subsistence or protect someone’s health, to meet the special needs of children or to fulfil a cooperation obligation under administrative law. § 6(1) second sentence of the Asylum Seekers Benefits Act provides that these benefits are to be granted as benefits in kind, or as cash payments if particular conditions have been met. According to the explanatory memorandum to the Act Revising Benefits Paid to Asylum Seekers, § 6 of the Asylum Seekers Benefits Act serves as a catch-all provision in terms of benefits (BTDrucks 12/4451, p. 10). According to the explanatory memorandum, this provision is necessary to meet particular needs in the individual case, for example needs arising when someone dies, particular hygiene needs or needs resulting from physical impairments (cf. BTDrucks 13/2746, p. 16).

19

dd) On expiry of the period set out in § 2(1) of the Asylum Seekers Benefits Act, beneficiaries receive so-called ‘analogous benefits’ as the Twelfth Book of the Code of Social Law is applied accordingly (cf. para. 2). This is based on the consideration that once persons have resided in Germany for a longer time period, it can no longer be assumed that they have the same lower needs that are typical of short-term residency. Rather, according to the legislator, in this case the recognition of needs must be aimed at harmonisation with the living conditions in Germany and greater social integration (cf. BTDrucks 12/5008, p. 15).

20

c) The level of basic welfare benefits and the waiting period set out in § 2(1) of the Asylum Seekers Benefits Act were changed several times between the entry into force of the Asylum Seekers Benefits Act in November 1993 and September 2018, the month at issue in the initial proceedings.

21

aa) When the Asylum Seekers Benefits Act entered into force on 1 November 1993, the legislator set the basic needs for cases in which benefits were to be provided as cash payments rather than in kind at DM 360 for the head of household, DM 220 for household members under seven and DM 310 for household members over seven, each plus necessary expenses for housing, heating and household items. The amount granted to meet personal needs was DM 40 for persons under 14 and DM 80 for persons aged 14 and over.

22

The transition from basic welfare benefits to analogous benefits was initially designed in such a way that persons could claim analogous benefits if their application for asylum had not been finally decided after more than twelve months or if their deportation was temporarily suspended and they were not responsible for failing to leave the country (formerly: § 2 Asylum Seekers Benefits Act in the version of the Act Revising Benefits Paid to Asylum Seekers of 30 June 1993 <BGBl I p. 1074>). With effect from 1 June 1997, the waiting period in § 2(1) of the Asylum Seekers Benefits Act was revised by the First Act Amending the Asylum Seekers Benefits Act of 26 May 1997 (BGBl I p. 1130); under this amendment, an entitlement to analogous benefits could only be recognised if basic welfare benefits had been received for 36 months. With effect from 28 August 2007, the legislator increased this period to 48 months with the Act Implementing EU Residence and Asylum Directives of 19 August 2007 (BGBl I p. 1970).

23

bb) In its judgment of 18 July 2012 (BVerfGE 132, 134), the Federal Constitutional Court held that the basic welfare benefits applicable from 1 November 1993, which had not been increased in the subsequent period, were incompatible with the fundamental right to an existential minimum in accordance with human dignity. The Court held that the benefit amounts which had not been adjusted since 1993 despite a continued loss of purchasing power were manifestly inadequate in the periods at issue in the initial proceedings – January to November 2007 and November 2009 (cf. BVerfGE 132, 134 <149 para. 35, 150 f. para. 40, 166 ff. paras. 80 ff.>). Moreover, the benefits had, from the outset, not been calculated in a plausible manner (cf. BVerfGE 132, 134 <170 f. paras. 90 f.>). In addition, the four-year period during which basic welfare benefits were paid under § 2(1) of the Asylum Seekers Benefits Act at the time was too long to assume that persons concerned only resided in Germany for a short period and therefore had potentially lower needs (cf. BVerfGE 132, 134 <171 f. paras. 92 f.>). The Federal Constitutional Court set out transitional rules with reference to the assessment of needs under the law on social assistance on the basis of the 2008 sample survey and to the standard need levels under the law on social assistance; these were to apply until the legislator enacted new provisions (cf. BVerfGE 132, 134 <135 f., 175 ff. paras. 102 ff.>). The transitional rules also provided for an update in accordance with § 28a of the Twelfth Book of the Code of Social Law for those years in which the level of social assistance was not reassessed (cf. BVerfGE 132, 134 <136, 178 para. 110>).

24

cc) Following this judgment, the legislator revised § 2(1) and § 3 of the Asylum Seekers Benefits Act through the Act Amending the Asylum Seekers Benefits Act and the Social Courts Act of 10 December 2014 (BGBl I p. 2187), which entered into force on 1 March 2015 (cf. BTDrucks 18/2592, p. 1).

25

(1) The legislator set the waiting period before analogous benefits could be claimed at 15 months from the start of someone’s stay on German territory. According to the explanatory memorandum, this corresponds to the average duration of an asylum procedure, including subsequent measures terminating residence, which often follow because the majority of applications is unsuccessful (cf. BTDrucks 18/2592, p. 19; regarding subsequent changes to the wording of § 2(1) of the Asylum Seekers Benefits Act with effect from 6 August 2016 through the Integration Act of 31 July 2016 <BGBl I p. 1939> see Bundesrat document, Bundesratsdrucksache – BRDrucks 266/16, pp. 34 f.).

26

(2) The legislator now, to a greater extent, based its assessment of basic welfare benefits on the structures in social assistance law, as the Federal Constitutional Court had done in its transitional rules (see para. 23 above). The benefits to be paid were differentiated into six need levels, which correspond to the standard need levels in social assistance law. The calculation of benefits in the respective need levels was based on the special evaluation of the 2008 sample survey, whose figures the legislator adjusted for 1 January 2014 using the composite index pursuant to § 28a and § 138 of the Twelfth Book of the Code of Social Law in the version applicable from 1 January 2011 to 31 December 2015 (cf. BTDrucks 18/2592, pp. 23 ff.).

27

In doing so, the legislator categorised sections 1 (food and drink), 3 (clothing and shoes), 4 (housing, energy and home maintenance), 5 (household items) and 6 (healthcare) as basic needs, while categorising sections 7 (transport), 8 (communication), 9 (leisure, entertainment, culture), 10 (education), 11 (hospitality) and 12 (other goods and services) as covering personal needs of daily life (cf. BTDrucks 18/2592, pp. 21 f.). According to the legislator, the use of the special evaluation creates the basis for a comprehensible assessment of cash needs and basic needs. By contrast, a separate collection of data on consumption expenditure of beneficiaries under the Asylum Seekers Benefits Act would have been circular and could therefore not be used for methodological reasons, just like a special data collection (household budget statistics) for foreign households only (BTDrucks 18/2592, p. 20). The legislator added that other reliable data for assessing differences in consumer behaviour of persons with uncertain long-term residence prospects was not available and could not be collected (BTDrucks 18/2592, p. 22).

28

Insofar as certain needs had not even been included in the calculation of standard needs under the Twelfth Book of the Code of Social Law, the legislator also did not take these into account for benefits paid under the Asylum Seekers Benefits Act. Similarly, in accordance with the Twelfth Book of the Code of Social Law, specific needs for education and participation of children and youths, such as needs for ‘extracurricular classes and hobby courses’ were not taken into account in the calculation of basic welfare benefits, because the provisions of the Twelfth Book of the Code of Social Law regarding the separate provision of benefits for education and participation were applied accordingly for the scope of the Asylum Seekers Benefits Act, through the then newly created § 3(3) of the Asylum Seekers Benefits Act (cf. BTDrucks 18/2592, p. 24).

29

(3) Further, the legislator did not take into account some needs included in the basic income support paid under the Twelfth Book of the Code of Social Law for basic welfare benefits paid under § 3 of the Asylum Seekers Benefits Act (cf. BTDrucks 18/2592, p. 21). The entire expenditure items from section 5 (household items) were not included for the calculation of basic needs of persons not living in reception centres, because § 3(2) fourth sentence of the Asylum Seekers Benefits Act provided for the separate provision of needs for housing, heating and household items (cf. BTDrucks 18/2592, p. 24). In section 6 (healthcare), needs for patient contributions to and prescription charges for medicines prescribed by a doctor, patient contributions to and prescription charges for other medical products, therapeutic agents and devices prescribed by a doctor and medical consultation fees were not taken into account (cf. BTDrucks 18/2592, p. 24). In section 12, needs for obtaining an ID card were not recognised (cf. BTDrucks 18/2592, p. 21), including for persons aged 14 and over (cf. regarding this age threshold in the Twelfth Book of the Code of Social Law for the 2011 Act: BTDrucks 17/3404, p. 87; cf. for the 2017 Act BTDrucks 18/9984, p. 80). According to the legislator, these needs do not arise for beneficiaries under the Asylum Seekers Benefits Act, unlike for German nationals (BTDrucks 18/2592, p. 22). The legislator considered that no group-specific additional needs were ascertainable that could offset the absence of these needs. The legislator argued that potential additional needs in section 7 (transport), for example to travel to a lawyer located further away, could not be accurately assessed or ascertained (cf. BTDrucks 18/2592, p. 23). According to the legislator, it could not be conclusively proven that persons with uncertain prospects of long-term residency use telecommunications differently than those with a secure residence status and that this leads to an increase in the expenditure items in section 8 (communication) that is relevant to standard needs (cf. BTDrucks 18/2592, p. 23). The legislator did not consider additional needs or reduced needs that were only presumed but could not be statistically proven and were not otherwise evident (cf. BTDrucks 18/2592, S. 21).

30

(4) The newly created § 3(5) of the Asylum Seekers Benefits Act provided for a new determination of benefits by the legislator (cf. BTDrucks 18/2592, p. 25) whenever the results of a new sample survey are available. In all other cases, § 3(4) of the Asylum Seekers Benefits Act, likewise newly enacted, provided for the updating of benefits according to the rate of change set out in § 28a of the Twelfth Book of the Code of Social Law (regarding the composite index cf. para. 10) in conjunction with the respective ordinance with effect from 1 January of every year. Under this provision, the Federal Ministry for Labour and Social Affairs publishes the needs applicable for the following calendar year in the Federal Law Gazette no later than 1 November of each calendar year.

31

dd) With the Act to Accelerate Asylum Procedures of 20 October 2015 (BGBl I p. 1722), the legislator increased the rate of basic welfare benefits with effect from 24 October 2015; it newly promulgated § 3(1) and (2) of the Asylum Seekers Benefits Act. In doing so, the legislator rectified the fact that, when the Asylum Seekers Benefits Act was amended in March 2015, it had extrapolated the figures from the 2008 sample survey only up to 1 January 2014 (cf. para. 26) but not to 1 January 2015 (cf. BTDrucks 18/6185, p. 45).

32

ee) On 1 January 2016, the Federal Ministry for Labour and Social Affairs published its notice of 26 October 2015 on the basis of the then applicable § 3(4) of the Asylum Seekers Benefits Act (BGBl I p. 1793; cf. para. 30). Insofar as all basic needs were covered by cash payments, the basic needs amounted to EUR 219 in need level 1 (single adults) and EUR 159 in need level 5 (children aged six to thirteen). In these cases, basic personal needs amounted to EUR 145 in need level 1 and EUR 93 in need level 5.

33

ff) With effect from 17 March 2016, the legislator lowered the amounts for basic personal needs through the Act Introducing Accelerated Asylum Procedures of 11 March 2016 (BGBl I p. 390), because it considered that the following needs of the 2008 sample survey were not relevant to guaranteeing subsistence (cf. BTDrucks 18/7538, p. 21): from section 9 (leisure, entertainment, culture), consumption expenditure on TV and video equipment, TV antennas (no. 53 in need level 1, no. 49 in need level 5, cf. BTDrucks 17/3404, pp. 61, 78), data processing devices and system and application software, including downloads (no. 54 in need level 1, no. 50 in need level 5, cf. BTDrucks 17/3404, pp. 61, 78), durable consumer goods and equipment for sport, camping and recreation (no. 56 in need level 1, no. 52 in need level 5, cf. BTDrucks 17/3404, pp. 61, 78), extracurricular sports and music instruction, hobby courses (no. 70 in need level 1, cf. BTDrucks 17/3404, p. 61; regarding the separate provision for beneficiaries who are minors see para. 8 above) and repairs and installations of durable consumer goods and equipment for culture, sport camping and recreation (no. 69 in need level 1, no. 64 in need level 5, cf. BTDrucks 17/3404, pp. 61, 79) and, from section 10 of the 2008 sample survey, courses (excluding courses to obtain qualifications) (no. 71 in need level 1, no. 65 in need level 5, cf. BTDrucks 17/3404, pp. 62, 79). Insofar as all basic needs were provided by cash payments, the legislator determined basic personal needs of EUR 135 in need level 1 and of EUR 83 in need level 5, which amounted to a reduction of EUR 10 compared to the previous amount that had been applicable from 1 January 2016.

34

The explanatory memorandum states that the particularities of the needs of basic welfare benefit recipients under the Asylum Seekers Benefits Act had previously been insufficiently assessed. In view of their uncertain residence status, it could not be assumed that recipients of basic welfare benefits had comprehensive needs during the waiting period that included saving to cover needs occurring at irregular intervals. The legislator intended to take this into account by reassessing the basic personal needs of these beneficiaries (BTDrucks 18/7538, pp. 2, 12). In an overall assessment of the particular needs situation of beneficiaries under the Asylum Seekers Benefits Act at the beginning of their residence, a new determination of cash payments for basic personal needs was made (BTDrucks 18/7538, pp. 2, 12).

35

According to the legislator, the average consumption expenditure assessed by the sample survey only made it possible to buy a television set through long-term saving. The legislator found that this expenditure should not be considered necessary basic needs as long as beneficiaries’ residence status was uncertain and they were expected to only reside in Germany for a short period (cf. BTDrucks 18/7538, p. 22). According to the legislator, purchasing a computer, computer equipment and software is not necessary to cover basic needs during the initial period of someone’s residence (cf. BTDrucks 18/7538, p. 22). Purchasing or repairing and installing durable consumer goods, a category including musical instruments, motor boats, horses etc., is not part of the basic needs as long as it is uncertain whether the person concerned will remain in Germany (cf. BTDrucks 18/7538, pp. 22 f.). This also applies to expenditure for extracurricular classes and hobby courses (including ballet classes, guitar lessons, music lessons, riding lessons and pottery classes). According to the legislator, minors are not affected from the outset, as for them these expenditure items are not included in the standard needs but in the separate benefits for education and participation granted pursuant to the then applicable § 3(3) of the Asylum Seekers Benefits Act in conjunction with § 34(7) of the Twelfth Book of the Code of Social Law (in the then relevant version of the Act Amending the Second Book of the Code of Social Law and Other Acts of 7 May 2013 <BGBl I p. 1167>) (cf. BTDrucks 18/7538, p. 23). Fees for courses primarily concern language courses. The legislator assumed that persons without good prospects of long-term residency required no or merely minimal integration, meaning that consumption expenditure for language courses should not be recognised as necessary basic needs in the first few months of residency (cf. BTDrucks 18/7538, p. 23).

36

gg) In October 2016, the Federal Government introduced draft legislation for a Third Act to Amend the Asylum Seekers Benefits Act, which among other things was intended to establish a new calculation of basic welfare benefits as of 1 January 2017 based on the special evaluation of the 2013 sample survey (cf. BTDrucks 18/9985, p. 1). On 1 December 2016, the Bundestag adopted the draft act in its second reading (Record of Plenary Proceedings of the Bundestag, Plenarprotokolle des Bundestags – BTPlPr 18/206, p. 20581 <A>; BRDrucks 713/16 <Beschluss>). On 16 December 2016, the Bundesrat refused to give its consent to the draft act that was subject to its consent (cf. Article 104a(4) of the Basic Law) (BRPlPr 952, p. 514 <C>). The Federal Government then requested that a mediation committee be convened (cf. BTDrucks 18/10752). As the mediation procedure had not produced any results by the end of the 18th parliamentary term on 24 October 2017, the draft act was discontinued.

37

hh) The Federal Ministry for Labour and Social Affairs failed to publish an update notice (cf. para. 30) for 1 January 2017, 1 January 2018 and 1 January 2019. In response to parliamentary interpellations, the Ministry stated that it was only authorised to update the benefits once the legislator had made a new determination on the basis of the special evaluation of the 2013 sample survey (cf. BTPlPr 19/70, p. 8181 <D>, p. 8182 <A> <on question 52>; BTDrucks 19/6663, pp. 50 f. <on question 55>; BTPlPr 19/73, p. 8564 <D>, p. 8565 <A> <on question 51>; BTPlPr 19/91, p. 10868 <D>, p. 10869 <A> <on question 43>).

38

ii) (1) As of 21 August 2019, the Second Act to Improve Enforcement of an Obligation to Leave the Country of 15 August 2019 (BGBl I p. 1294) extended the period set out in § 2(1) of the Asylum Seekers Benefits Act to 18 months (regarding the duration of 36 months applicable since 27 February 2024, see the Act to Improve Repatriation of 21 February 2024 <BGBl I no. 54>).

39

(2) The Third Act Amending the Asylum Seekers Benefits Act of 13 August 2019 (BGBl I p. 1290), which was adopted following a new legislative proposal of the Federal Government from 2019, contained a new determination of the basic welfare benefits based on the 2013 sample survey and taking effect from 1 September 2019 (cf. BTDrucks 19/10052, p. 20). With this amendment, the legislator also changed the structure of benefits by excluding expenditure from section 4 (household energy and home maintenance) of the 2013 sample survey from the rate for basic needs in the Asylum Seekers Benefits Act and providing for its separate provision as cash payment or benefit in kind (cf. § 3(3) third sentence Asylum Seekers Benefits Act in the version applicable from 1 September 2019 to 15 May 2024; BTDrucks 19/10052, p. 21). The provisions on the rates of basic welfare benefits were revised; the former provisions were separated into a revised § 3 and a new § 3a.

40

d) aa) Based on these developments, § 3 of the Asylum Seekers Benefits Act (former version), in the version applicable from 17 March 2016 to 31 August 2019, was applicable in September 2018, the month at issue in the initial proceedings; subsection (2) of this provision had most recently been amended by the Act to Accelerate Asylum Procedures of 20 October 2015 (BGBl°I p. 1722) and subsection (1) of this provision had most recently been amended by the Act Introducing Accelerated Asylum Procedures of 11 March 2016 (BGBl I p. 390) (cf. paras. 33 ff.) (hereinafter designated as ‘former version)’.

§ 3 Basic welfare benefits

(1) ¹Beneficiaries pursuant to § 1 who live in reception centres within the meaning of § 44(1) of the Asylum Act receive benefits to cover their needs for food, housing, heating, clothing, health and household goods (basic needs). ²Basic needs are covered by benefits in kind. ³If clothing cannot be provided, it can be granted in the form of vouchers or comparable non-cash benefits. ⁴Household goods may be provided on loan. ⁵In addition, they are provided benefits to cover personal needs of daily life (basic personal needs). ⁶Insofar as the administrative burden is reasonable, these should be provided in the form of benefits in kind. ⁷Insofar as it is not possible to provide benefits in kind with reasonable administrative burdens, benefits may also be provided as vouchers, comparable non-cash payments or cash payments. ⁸If all basic personal needs are covered by cash payments, the following monthly amounts are paid to cover all basic personal needs:

1. for single beneficiaries EUR 135,

2. for two adult beneficiaries who run a joint household as partners EUR 122 each,

3. for other adult beneficiaries without their own household EUR 108,

4. for other beneficiaries aged fourteen to seventeen EUR 76,

5. for eligible children aged six to thirteen EUR 83,

6. for eligible children aged five and under EUR 79.

⁹The individual amount required to cover the basic personal needs of beneficiaries who are in detention pending deportation or on remand is to be determined by the competent authority if those needs are met, in whole or in part, by other means.

(2) ¹Beneficiaries who live outside reception centres within the meaning of § 44(1) of the Asylum Act are to primarily receive cash payments to cover basic needs pursuant to subsection (1) first sentence, without prejudice to the fourth sentence. ²The following monthly basic needs are recognised:

1. for single beneficiaries EUR 216,

2. for two adult beneficiaries who run a joint household as partners EUR 194 each,

3. for other adult beneficiaries without their own household EUR 174,

4. for other beneficiaries aged fourteen to seventeen EUR 198,

5. for eligible children aged six to thirteen EUR 157,

6. for eligible children aged five and under EUR 133.

³Wherever the circumstances make it necessary, benefits to cover basic needs can be provided in the form of non-cash benefits, vouchers or benefits in kind instead of as cash payments. ⁴Needs for housing, heating and household items are separately provided as cash payments or benefits in kind. ⁵Subsection (1) fourth, fifth, eighth and ninth sentence applies accordingly with the proviso that basic personal needs are to be provided as cash payments. ⁶In collective accommodation within the meaning of § 53 of the Asylum Act, basic personal needs can be covered by benefits in kind where possible.

(3) For children, youths and young adults, needs for education and participation in social and cultural life are taken into account separately in addition to benefits provided under subsection (1) or (2) as §§ 34, 34a and 34b of the Twelfth Book of the Code of Social Law are applied accordingly.

(4) ¹The amount for all basic personal needs pursuant to subsection (1) eighth sentence and the basic needs pursuant to subsection (2) second sentence are updated as of 1 January of each year on the basis of the rate of change pursuant to § 28a of the Twelfth Book of the Code of Social Law in conjunction with the ordinance under § 40 first sentence no. 1 of the Twelfth Book of the Code of Social Law. ²The first decimal place in the resulting amounts must be rounded down if it is less than five or rounded up if it is five or more. ³The Federal Ministry for Labour and Social Affairs publishes the needs applicable for a calendar year in the Federal Law Gazette no later than 1 November of the preceding calendar year.

(5) If results of a new sample survey for all of Germany are available, the cash amounts for all basic personal needs and the level of basic needs are newly determined.

(6) […].

41

In addition, the level of basic needs pursuant to § 3(2) second sentence of the Asylum Seekers Benefits Act (former version) (regarding the basic personal needs from 17 March 2016 cf. paras. 33 ff, para. 40) for the period in question could be derived from a notice by the Federal Ministry for Labour and Social Affairs published on 26 October 2015 and in effect since 1 January 2016 on the basis of § 3(4) of the Asylum Seekers Benefits Act (BGBl I p. 1793; cf. para. 32), which read in relevant part as follows:

Under § 3(4) of the Asylum Seekers Benefits Act, most recently amended by Art. 2 no. 3 of the Act of 20 October 2015 (BGBl. I p. 1722), the following notice is published:

1. The following monthly amounts pursuant to § 3(1) eighth sentence of the Asylum Seekers Benefits Act are recognised as cash amounts to cover all basic personal needs for the period starting 1 January 2016:

a) for single beneficiaries EUR 145 (§ 3(1) eighth sentence no. 1),

b) for two adult beneficiaries who run a joint household as partners EUR 131 each (§ 3(1) eighth sentence no. 2),

c) for other adult beneficiaries without their own household EUR 114 (§ 3(1) eighth sentence no. 3),

d) for other beneficiaries aged fourteen to seventeen EUR 86 (§ 3(1) eighth sentence no. 4),

e) for eligible children aged six to thirteen EUR 93 (§ 3(1) eighth sentence no. 5),

f) for eligible children aged five and under EUR 85 (§ 3(1) eighth sentence no. 6);

2. The following monthly amounts pursuant to § 3(2) second sentence of the Asylum Seekers Benefits Act are recognised as basic needs for the period starting 1 January 2016:

a) for single beneficiaries EUR 219 (§ 3(2) second sentence no. 1),

b) for two adult beneficiaries who run a joint household as partners EUR 196 each (§ 3(2) second sentenceno. 2),

c) for other adult beneficiaries without their own household EUR 176 (§ 3(2) second sentence no. 3),

d) for other beneficiaries aged fourteen to seventeen EUR 200 (§ 3(2) second sentence no. 4),

e) for children aged six to thirteen EUR 159 (§ 3(2) second sentence no. 5),

f) for children aged five and under EUR 135 (§ 3(2) second sentence no. 6). 

42

bb) § 2(1) of the Asylum Seekers Benefits Act applied in September 2018 in the version of the Act Amending the Asylum Seekers Benefits Act and the Social Courts Act of 10 December 2014 (BGBl I p. 2187) and of the Integration Act of 31 July 2016 (BGBl I p. 1939) (cf. para. 25), which was applicable from 6 August 2016 to 20 August 2019. It read as follows (hereinafter designated as ‘former version)’:

§ 2 Benefits in particular cases

(1) In deviation from §§ 3 through 4 and 6 through 7, the Twelfth Book of the Code of Social Law must be applied accordingly to those beneficiaries who have been residing in Germany for 15 months without any significant interruption and who have not themselves influenced the duration of their residency in an abusive manner.

(2) through (3) (…).

II.

43

1. The matter still in dispute in the initial proceedings, in the context of a review procedure under § 9(4) first sentence no. 1 of the Asylum Seekers Benefits Act in conjunction with § 44 of the Tenth Book of the Code of Social Law, is the level of basic welfare benefits paid under the Asylum Seekers Benefits Act to adults living outside reception centres within the meaning of § 44 of the Asylum Act (need level 1) and children aged six to thirteen (need level 5) in September 2018.

44

a) Plaintiff no. 1, who was born in 1970, is the mother and sole parent of plaintiff no. 2, a child born in February 2011. Both are citizens of Eritrea. On 5 August 2017, they entered Germany and requested asylum. After first being housed in an initial reception centre, they were allocated to a joint municipality situated within the district of the defendant in the initial proceedings at the beginning of 2018. By notification of 7 November 2017, the Federal Office for Migration and Refugees (Bundesamt für Migration und Flüchtlinge) dismissed the asylum application as inadmissible in accordance with § 29(1) no. 1(a) of the Asylum Act in the version of the Integration Act of 31 July 2016 (BGBl I p. 1939) on the grounds that Italy was responsible for handling the asylum application under Regulation (EU) No. 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (OJ L 180/31; hereinafter: Dublin III Regulation); at the same time, it ordered the plaintiffs’ removal to Italy. In the subsequent period, the plaintiffs were granted temporary suspensions of deportation (§ 60a Residence Act, Aufenthaltsgesetz – AufenthG) and their asylum applications were again dismissed (Notification of the Federal Office for Migration and Refugees of 30 May 2018).

45

b) The plaintiffs were receiving benefits under the Asylum Seekers Benefits Act. From February 2018, they lived in a flat which the district had rented for the plaintiffs through the joint municipality, and which it provided to the plaintiffs as part of the benefits under the Asylum Seekers Benefits Act. The district authority paid an all-inclusive rent of EUR 600 for the flat, comprising a basic rent of EUR 300, EUR 100 for ‘basic’ service charges, EUR 100 for heating and EUR 100 for electricity. By notification of 16 August 2018, the joint municipality granted the plaintiffs basic welfare benefits under the Asylum Seekers Benefits Act for September 2018 through November 2018. The joint municipality determined a monthly amount of EUR 354 for plaintiff no. 1’s basic needs and basic personal needs in need level 1 and an overall monthly amount of EUR 242 for plaintiff no. 2 in need level 5. The joint municipality then deducted a monthly amount of EUR 50 each from the plaintiffs’ benefits for the electricity costs included in the rent, noting this as ‘minus total flat-rate amount (from service charges)’.

46

c) The plaintiffs lodged an application dated 22 November 2018 for the review of the notification, which had since become final. They claimed that the cash payments were too low, because the joint municipality had not taken into account the necessary annual adjustment of basic welfare benefits to the rate of inflation. According to the plaintiffs, while the Federal Ministry of Labour and Social Affairs had failed to publish a notice regarding an increase as provided for in § 3(4) of the Asylum Seekers Benefits Act (former version), such notice only serves a declaratory purpose as the implementation of the increase is set out in the Act down to the last cent. The joint municipality dismissed the application by notice of 21 December 2018; since the benefits pursuant to § 3(4) and (5) of the Asylum Seekers Benefits Act had not been newly determined or updated, the plaintiffs could not claim higher benefits. The district that is the defendant in the initial proceedings rejected the plaintiffs’ objection by notice of 27 February 2019.

47

d) In the subsequent complaint proceedings, the Social Court ordered the district, by judgment of 11 April 2019, to amend the notice of 16 August 2018 and to grant an additional overall amount of EUR 351 to the plaintiffs for September, October and November 2018. […]

48

e) On 10 May 2019, the district appealed against the judgment, having been granted leave to do so by the social court, and requested the annulment of the judgment and the rejection of the action. […]

49

Upon a proposal by the Higher Social Court (Landessozialgericht), the parties to the proceedings reached a settlement limiting the matter in dispute to the level of the basic welfare benefits for September 2018; under this settlement, benefits for housing, heating and household items and benefits pursuant to § 6 of the Asylum Seekers Benefits Act were no longer in dispute. The defendant committed itself to applying the outcome of the final proceedings to the other months set out in the application for review.

50

2. On 26 January 2021, the Higher Social Court suspended the proceedings and referred to the Federal Constitutional Court the question whether ‘§ 3(2) first and second sentence and § 3(2) fifth sentence in conjunction with § 3(1) fifth and eighth sentence of the Asylum Seekers Benefits Act (…)’ (former version) are compatible with the Basic Law.

51-65

[…]

III. 

66

Statements on the judicial review proceedings were submitted by the Federal Government, the Land Government of Rhineland-Palatinate, the Federal Social Court (Bundessozialgericht), the United Nations High Commissioner for Refugees (UNHCR), the plaintiffs in the initial proceedings, the authorised representative of the Council of the Protestant Church in Germany (Rat der Evangelischen Kirche Deutschland) and the Commissariat of German Bishops (Kommissariat der deutschen Bischöfe), the Federal Employment Agency’s Institute for Employment Research (Institut für Arbeitsmarkt- und Berufsforschung), the Federal Working Group of Independent Welfare Organisations (Bundesarbeitsgemeinschaft der Freien Wohlfahrtspflege e.V.), the Federal Working Group Pro Asyl (Bundesarbeitsgemeinschaft Pro Asyl e.V.), the German Bar Association (Deutscher Anwaltsverein e.V.), the German Trade Union Confederation (Deutscher Gewerkschaftsbund – DGB), the Conference of German Social Courts (Deutscher Sozialgerichtstag e.V.) and the Refugee Council Berlin (Flüchtlingsrat Berlin e.V.). Furthermore, the Court received a submission from member of the German Bundestag (…).

67

Those entitled to submit a statement received a questionnaire regarding, amongst others, the actual consumption behaviour and actual needs of persons eligible for basic welfare benefits from 2017 to 2019 in particular.

68-81

[…]

B. 

82

The referral, which must be limited with regard to the provisions in § 3(2) first and second sentence, § 3(2) fifth sentence in conjunction with § 3(1) fifth and eighth sentence of the Asylum Seekers Benefits Act (see I. below), is admissible (see II. below). The Federal Constitutional Court has jurisdiction for deciding the referral (see III. below). Insofar as it is relevant to the decision in the initial proceedings, the question raised in the referral must be extended to § 2(1) of the Asylum Seekers Benefits Act (former version) (see IV. below).

I.

83

The referral must be limited.

84

1. Since judicial review proceedings under Art. 100(1) of the Basic Law (Grundgesetz – GG) are only one part of the uniform legal dispute in the initial proceedings – albeit a part for which the Federal Constitutional Court has jurisdiction –, it is in principle only provisions which are of legal relevance in the initial proceedings that can be referred for constitutional review (cf. BVerfGE 117, 272 <291>; 153, 310 <330 para. 47> – Cartilage in meat, each with further references>). Constitutional review in judicial review proceedings must generally be limited to those parts of the referred provisions that are relevant to the decision in the initial proceedings (cf. BVerfGE 108, 186 <210>; 150, 204 <228 para. 72>). In the framework of judicial review proceedings, the Federal Constitutional Court only examines whether a provision is compatible with fundamental rights insofar as the plaintiffs in the initial proceedings are affected by that provision and a violation of fundamental rights appears possible (cf. BVerfGE 125, 175 <219>; Federal Constitutional Court, Order of the Second Senate of 23 July 2025 - 2 BvL 19/14 -, para. 64 – Minimum taxation). A referral under Art. 100(1) of the Basic Law must be limited if the question raised by the referring court is too broad (cf. BVerfGE 76, 130 <138>; 139, 285 <297 para. 38>; 141, 82 <95 f. para. 40>). In light of the conciliatory function of judicial review proceedings, the Federal Constitutional Court can extend the question raised in the referral to periods beyond the period in dispute in the initial proceedings (cf. BVerfGE 132, 302 <316 para. 39>; 135, 1 <12 para. 34>; 139, 285 <298 f. para. 41>).

85

2. Based on these standards, the provisions referred by the Higher Social Court, § 3(2) first and second sentence, § 3(2) fifth sentence in conjunction with § 3(1) fifth and eighth sentence of the Asylum Seekers Benefits Act (former version), in the version last amended by the Act to Accelerate Asylum Procedures Act of 20 October 2015 and the Act Introducing Accelerated Asylum Procedures of 11 March 2016 and in force from 17 March 2016 (cf. paras. 40 ff. above), are not subject to constitutional review in their entirety, but only insofar as they set out the level of benefits paid in need levels 1 and 5 ([…]), and merely for the period of 1 September 2018 to 20 August 2019 ([…]).

86-87

[…]

II.

88

The referral, limited in this manner, is admissible.

89-102

[…]

III. 

103

The Federal Constitutional Court has jurisdiction for the referral. In particular, its competence of review is not restricted on the grounds that the provisions are determined by EU law.

104

1. The Federal Constitutional Court has jurisdiction for reviewing whether a referred provision is compatible with fundamental rights if the provision under review is not fully determined by EU law (cf. BVerfGE 152, 152 <168 para. 39> – Right to be forgotten I; BVerfGE 158, 1 <23 ff. paras. 36 ff.> – Ecotoxicity data; BVerfGE 163, 254 <275 para. 48>). By contrast, it is irrelevant for the admissibility of the referral that relevant EU law is not applicable to the parties to the initial proceedings in the first place (BVerfGE 163, 254 <275 para. 48> with further references).

105

2. The provisions of EU law which are relevant to the determination of benefits under the Asylum Seekers Benefits Act and which applied without changes in the period from September 2018 to 20 August 2019 do not fully determine benefits for asylum seekers.

106

a) The provisions regarding the level of basic welfare benefits in § 3(2) first sentence, second sentence no. 1 and 5, § 3(2) fifth sentence in conjunction with § 3(1) fifth sentence, eighth sentence no. 1 and 5 of the Asylum Seekers Benefits Act (former version) were not fully determined by 17 or Art. 23(1) of the Reception Directive; these provisions leave EU Member States a certain leeway (cf. BVerfGE 163, 254 <275 f. para. 49>).

107

b) Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ L 348/98; Return Directive) also does not contain any rules binding on the Member States that would have fully predetermined the content of § 3(2) first sentence, second sentence no. 1 and 5, § 3(2) fifth sentence in conjunction with § 3(1) fifth sentence, eighth sentence no. 1 and 5 of the Asylum Seekers Benefits Act (former version) (cf. BVerfGE 163, 254 <276 para. 50>).

IV.

108

The question raised in the referral must be extended to § 2(1) of the Asylum Seekers Benefits Act (former version) insofar as that provision is relevant to the decision in the initial proceedings.

109

1. In light of the conciliatory function of judicial review proceedings, which to a certain extent provides a function of objective review to specific judicial review proceedings (cf. BVerfGE 121, 241 <253> with further references; 145, 1 <7 para. 15>; 149, 382 <390 para. 13>; 170, 247 <270 para. 61>), the Federal Constitutional Court can extend the question of referral to provisions or parts thereof that are closely connected to the provisions considered objectionable by the referring court (cf. BVerfGE 139, 285 <297 para. 38> with further references; 149, 1 <14 para. 30> with further references; 170, 247 <270 f. para. 61>). Such an extension can be considered, for example, if it can be derived from the overall context of the order of referral that the referring court considered other questions in addition to the questions explicitly raised and found them to be relevant – particularly if the question of referral could otherwise not be plausibly reviewed – or if there is a close connection between the issues relevant for decision and another question, which might even make it necessary for the latter to also be considered as referred for review (BVerfGE 170, 247 <270 f. para. 61> with further references).

110

2. § 2(1) of the Asylum Seekers Benefits Act (former version) has such a close connection to § 3(2) first sentence, second sentence no. 1 and 5, § 3(2) fifth sentence in conjunction with § 3(1) fifth sentence, eighth sentence no. 1 and 5 of the Asylum Seekers Benefits Act (former version) that this provision must also be included in the constitutional review. By providing from which point in time claimants are eligible for analogous benefits, § 2(1) of the Asylum Seekers Benefits Act (former version) also determines the duration of the preceding period during which basic welfare benefits are received. Moreover, there is also a substantive connection between this duration and the provisions on the level of basic welfare benefits. The legislator’s starting point is that the prospects of long-term residency in Germany are uncertain during this initial period (cf. BTDrucks 18/2592, p. 19). Basing the level of basic welfare benefits on plausible calculations is thus not a sufficient prerequisite for the constitutionality of such benefits. In addition, the legislator must also make a sound determination as to who long someone’s residency in Germany can be assumed to be only temporary (cf. also BVerfGE 132, 134 <164 para. 74>).

111

3. However, extending the question raised in the referral to § 2(1) of the Asylum Seekers Benefits Act (former version) is only necessary to the extent that the application of that provision is of significance for the decision in the initial proceedings (cf. BVerfGE 36, 41 <44>; 66, 84 <92 f.>).

112

a) As the plaintiffs in the initial proceedings had temporary suspensions of deportation pursuant to § 60a of the Residence Act in September 2018, a decision in the initial proceedings depends solely upon the extent to which the statutory rule setting a 15-month waiting period for persons with temporary suspension of deportation (§ 1(1) no. 4 Asylum Seekers’ Benefits Act) was permissible. Whether this applies accordingly to the other beneficiaries listed in § 1(1) of the Asylum Seekers Benefits Act is irrelevant for the initial proceedings. Within the group of holders of temporary suspensions of deportation, those with suspensions for education and training purposes (cf. for the period of September 2018 to 20 August 2019: § 60a(2) fourth through twelfth sentence of the Residence Act in the version of the Integration Act of 31 July 2016 applicable from 6 August 2016 to 31 December 2019 <BGBl I p. 1939>) must also be excluded from constitutional review due to irrelevance for the initial proceedings. A temporary suspension of deportation for education and training purposes is a special subcategory of temporary suspensions of deportation. If the statutory requirements are met, such suspension is granted for the entire duration of vocational training as determined in the training contract. Finally, the cases of abusive influence on the duration of one’s residency set out in § 2(1) second half-sentence of the Asylum Seekers Benefits Act (former version) are also not relevant to the initial proceedings, and thus not subject to constitutional review.

113

b) Further, § 2(1) of the Asylum Seekers Benefits Act (former version) does not require review insofar as it applies §§ 47 through 52 of the Twelfth Book of the Code of Social Law accordingly ([…]), ordering a 15-month waiting period for access to healthcare and providing that during this period beneficiaries can only be granted healthcare to the extent set out in §§ 4 and 6 of the Asylum Seekers Benefits Act. The initial proceedings only concern the level of subsistence benefits that can be claimed by the plaintiffs. This also applies insofar as it follows from § 2(1) of the Asylum Seekers Benefits Act (former version), in interaction with § 264(2) first sentence of the Fifth Book of the Code of Social Law, that medical treatment is only covered by statutory health insurance providers – a key point in practice (cf. § 48 second sentence Twelfth Book of the Code of Social Law […]) – if those concerned receive analogous benefits, which in turn requires that the waiting period has expired.

C.

114

The provisions under review, in respect of which the Senate is not limited to the aspects raised by the Higher Social Court (see I. below), result only in partial violation of the fundamental right to an existential minimum in accordance with human dignity following from Art. 1(1) in conjunction with Art. 20(1) of the Basic Law. Based on the applicable standards (see II. below), § 3(2) first sentence and second sentence no. 1 and 5, § 3(2) fifth sentence in conjunction with § 3(1) fifth sentence and eighth sentence no. 1 and 5 of the Asylum Seekers Benefits Act (former version) are, for the most part, consistent with the requirements arising from Art. 1(1) in conjunction with Art. 20(1) of the Basic Law for guaranteeing an existential minimum in accordance with human dignity. The benefits were not manifestly undercalculated. The manner in which the legislator derived the benefit rates from the results of the 2008 sample survey in principle rests on sound reasoning. To the extent under review here, setting the duration of basic welfare benefits at 15 months (§ 2(1) first half-sentence of the Asylum Seekers’ Benefits Act, former version) is not objectionable under constitutional law. The specific level of benefits in need levels 1 and 5 that applied from 17 March 2016 and had been assessed on the basis of the 2008 sample survey also rests on sound reasoning. However, as of September 2018, the data on which the level of benefits was based was no longer sufficiently up-to-date. Consequently, the constitutional requirements were no longer met when viewing the programme as a whole (see III. below on all of the above).

I.

115

The Federal Constitutional Court reviews the provisions which were admissibly referred for review in light of all relevant constitutional aspects, regardless of whether these were raised in the order of referral (cf. BVerfGE 26, 44 <58>; 90, 145 <168>; 93, 121 <133>; 170, 247 <269 f. para. 59>).

II.

116

The relevant standard in this regard is the fundamental right to the guarantee of an existential minimum in accordance with human dignity following from Art. 1(1) in conjunction with Art. 20(1) of the Basic Law that was developed in a number of Federal Constitutional Court decisions as follows:

117

1. When a person lacks the means necessary to live in accordance with human dignity, and when that person cannot obtain such means through paid employment, use of their own assets, or payments by others, the state has a duty, in the context of its mandate to protect human dignity and to give shape to the social state, to provide means to persons in need to ensure that the existential minimum in accordance with human dignity is upheld. This objective duty deriving from Art. 1(1) of the Basic Law gives rise to a corresponding individual right for the fundamental right holders to receive assistance, as the fundamental right in question protects the human dignity of each individual, and an existence in accordance with human dignity in such cases of need can only be secured through material support (BVerfGE 125, 175 <222 f.> with further references; in the same vein BVerfGE 132, 134 <159 para. 63>; cf. also BVerfGE 137, 34 <72 para. 74>; 142, 353 <371 f. para. 39>; 152, 68 <114 para. 120> – Sanctions imposed under social law; 163, 254 <277 para. 53>). Under constitutional law, social welfare benefits must be assessed realistically and on an ongoing basis to ensure that they are in fact sufficient to provide for an existential minimum in accordance with human dignity (cf. BVerfGE 125, 175 <225>; 132, 134 <162 para. 69, 163 para. 72>; 137, 34 <73 para. 77, 74 para. 79>; 142, 353 <370 ff. paras. 36, 38, 43>; 163, 254 <277 para. 53>).

118

The right to receive assistance to secure an existential minimum in accordance with human dignity, which follows directly from the Constitution, extends only to those means that are absolutely necessary for maintaining a life in accordance with human dignity (BVerfGE 125, 175 <223>; 132, 134 <160 para. 64>; 142, 353 <370 para. 37>; 163, 254 <277 f. para. 54>). The fundamental right requires that the legislator specify and continuously update it, basing the level of benefits to be provided on the respective level of development in society and general living conditions in view of the specific needs of recipients (cf. BVerfGE 125, 175 <222>; 132, 134 <159 para. 62>; 163, 254 <278 para. 54>). When designing the framework for benefits to secure the existential minimum in accordance with human dignity, the legislator must use realistic and up-to-date representations of the needs of benefit recipients (BVerfGE 125, 175 <224>; 137, 34 <72 f. para. 76>). The basic needs of beneficiaries must always be met (cf. BVerfGE 125, 175 <224>; 132, 134 <160 para. 65>; 163, 254 <278 para. 54>). The result of the needs assessment must be continuously reviewed and updated because basic subsistence needs can in principle only be met at the time they arise (BVerfGE 125, 175 <225>; cf. BVerfGE 132, 134 <163 para. 72>; 137, 34 <74 para. 79>).

119

2. In fulfilling its duty to guarantee an existential minimum in accordance with human dignity that follows from Art. 1(1) of the Basic Law in conjunction with the principle of the social state, the legislator is afforded leeway in terms of appreciation, assessment and design, in particular concerning the type and level of benefits provided. It falls to the legislator to specify the right to receive assistance in terms of prerequisites and legal consequences. In principle, it is for the legislator to decide whether it secures the existential minimum through cash payments, benefits in kind or services (cf. BVerfGE 125, 175 <224>; 132, 134 <161 para. 67>; 137, 34 <72 para. 74>; 163, 254 <278 para. 55>). It has leeway in assessing actual circumstances and in appraising basic needs, yet it must base its decision on the specific needs of benefit recipients (cf. BVerfGE 125, 175 <222, 224 f.>; 132, 134 <159 ff. paras. 62, 67>; 137, 34 <72 ff. paras. 74, 76, 78>; 142, 353 <370 para. 38>; 152, 68 <114 para. 121>; 163, 254 <278 para. 55>). This leeway is narrower insofar as the legislator determines what is necessary to secure the physical existence of a person, and broader where the nature and scope of opportunities to participate in society are at issue (cf. BVerfGE 125, 175 <222, 224 f.>; 132, 134 <161 para. 67>). This takes into account the greater changeability of sociocultural conditions, but does not call into question the uniform protection. The requirements arising from the Basic Law to ensure that affected persons can actually live in accordance with human dignity must ultimately be met (cf. BVerfGE 152, 68 <115 para. 121>; 163, 254 <278 para. 55>; established case-law).

120

The Basic Law does not provide for a specific method that would restrict the leeway afforded to the legislator. It is for the legislator to choose its method for assessing needs and calculating the benefits necessary to secure a living in accordance with human dignity within the framework of what is apt and reasonable (cf. BVerfGE 125, 175 <225>; 137, 34 <74 para. 78>). However, the decision made by the legislator does not change the standards arising from fundamental rights. If different methods are used for different groups, this must be justifiable by objective reasons (cf. BVerfGE 125, 175 <225>; 132, 134 <163 para. 71>; 137, 34 <74 para. 78>).

121

To the extent that the legislator takes into account the particular nature of specific needs when determining the existential minimum in accordance with human dignity, it is not permitted to make sweeping differentiations in the statutory design of subsistence benefits based on residence status. The legislator may only differentiate based on the residence status of foreign nationals if this differentiation corresponds to the actual needs of persons with the residence status in question (cf. BVerfGE 132, 134 <164 paras. 73 f.>; 163, 254 <278 f. para. 56>). The legislator is nevertheless permitted to make assessments regarding needs within the boundaries of the leeway granted to it, so long as these assessments are sufficiently comprehensible and not unobjective (cf. BVerfGE 137, 34 <89 para. 113>). Legislative assessments can also be based on the assumption that someone will only reside in Germany for a short period due to their residence status, if such assessments can be sufficiently justified. In this case, the legislator must ensure that its legislation reliably covers only those who typically stay in Germany merely for a short period. At the beginning of someone’s residency, this assessment can only be based on a prognosis, which is also determined by someone’s residence status, albeit not as the only criterion. In this regard, the formal residence status must always be considered together with the circumstances in practice (cf. BVerfGE 132, 134 <164 f. para. 75>). Regardless of someone’s residence status and the justification of an initial prognosis to the contrary, an existential minimum determined for short-term residency is no longer justified if the actual duration of someone’s residency has clearly exceeded a short-term duration (BVerfGE 132, 134 <165 para. 76>). This is because human dignity guaranteed by Art. 1(1) of the Basic Law may not be diminished in terms of migration policy (cf. BVerfGE 132, 134 <173 para. 95>; 163, 254 <279 para. 56>; cf. also BVerfGE 152, 68 <114 para. 120>).

122

3. The legislative leeway in assessing state benefits to secure the existential minimum is matched by differentiated review of the Federal Constitutional Court (cf. BVerfGE 125, 175 <225>; 152, 68 <115 para. 122>; 163, 254 <279 para. 57>).

123

a) It is not for the Federal Constitutional Court to decide the amount of benefits necessary to secure an existential minimum; nor does the Court assess whether the legislator has chosen the most equitable, appropriate and reasonable solution in the performance of its duties. The Basic Law does not require the legislator to make an ideal determination of the existential minimum that takes into account all possible factors; rather, it is a matter for politicians to work out (BVerfGE 152, 68 <115 para. 122> with further references; 163, 254 <279 para. 57>).

124

b) Given that the Basic Law itself does not prescribe a precise level of subsistence benefits, the substantive review of the level of benefits provided to secure an existential minimum in accordance with human dignity is limited to examining whether the benefits are manifestly inadequate (cf. BVerfGE 125, 175 <225 f.>; 132, 134 <165 para. 78>; 137, 34 <75 para. 81>; 163, 254 <279 para. 58>). This review includes an overall assessment of the level of the entirety of benefits, rather than individual elements of the calculation that serves to determine the level of benefits (BVerfGE 142, 353 <372 para. 41>; 163, 254 <279 f. para. 58>). Benefits are only manifestly inadequate when it is apparent that the total amount of benefits can in no way secure an existence for those in need in Germany that can be regarded as in accordance with human dignity with respect to basic physical, social and cultural needs (BVerfGE 137, 34 <75 para. 81>; 142, 353 <372 para. 41>; 163, 254 <280 para. 58>).

125

c) When benefits to secure a living in accordance with human dignity are not manifestly inadequate in an overall assessment, the Court assesses whether the benefits are based on and can be justified by comprehensible, objective and overall sound reasons. If this is the case, the benefits are compatible with Art. 1(1) in conjunction with Art. 20(1) of the Basic Law (cf. BVerfGE 125, 175 <225 f.>; 132, 134 <165 f. para. 79>; 137, 34 <74 f. para. 80, 75 para. 82>; 142, 353 <372 paras. 40 ff.>; 152, 68 <115 para. 122>; 163, 254 <280 para. 59>)

126

aa) The determination of benefits by the legislator must ultimately be justifiable on the basis of reliable data and plausible calculation methods (cf. BVerfGE 137, 34 <75 para. 82>; 142, 353 <372 para. 42>; 163, 254 <280 para. 59>). A political compromise may not lead to a determination of subsistence benefits that is not justifiable based on objective reasons. Neither simplistic figures nor estimates drawn from thin air satisfy constitutional requirements if they are not comprehensible at least with regard to their outcome (cf. BVerfGE 125, 175 <237 f.>; 132, 134 <170 f. paras. 90 f.>; 137, 34 <75 para. 83>; 163, 254 <280 para. 59>).

127

bb) The type and level of benefits must be explicable by a method based on which the necessary facts are determined completely and correctly for the most part and whose calculation steps are based on sound figures within the limits of what is tenable. If the legislator opts to use a statistical procedure, it is not precluded under constitutional law from subsequently removing individual items from the statistics in line with the basket-of-goods procedure, provided that the legislator ensures that the existential minimum is still met (cf. BVerfGE 137, 34 <75 para. 84>).

128

If, however, the legislator does not take into account needs for certain groups that it has otherwise recognised as necessary to cover basic needs, the reasons for this must be sufficiently comprehensible (regarding the use of different methods for assessing needs for different groups cf. para. 120).

129

cc) The legislator fulfils its duty to update the level of benefits to secure an existential minimum in accordance with human dignity if it takes into account the development of the actual cost of living to cover basic needs through regular recalculations and updates (cf. BVerfGE 125, 175 <225>; 132, 134 <165 f. para. 79>; 137, 34 <76 para. 85>). It must respond to changes to economic conditions such as price rises or increases in consumption taxes in a timely manner so as to ensure that current needs are met (BVerfGE 132, 134 <163 para. 72>; 137, 34 <76 para. 85>).

130

4. The Basic Law does not preclude the legislator from applying the principle of last resort (Nachranggrundsatz), according to which benefits are only provided by the state if persons cannot support themselves by their own means, to the entitlement to basic welfare benefits securing an existential minimum in accordance with human dignity (cf. BVerfGE 125, 175 <222>; 142, 353 <371 para. 39>; 152, 68 <116 para. 123>; 163, 254 <280 para. 60>; see also BVerfGE 120, 125 <154 ff.>). The legislator may act in accordance with the idea of subsidiarity, according to which any reasonable possibilities to provide for oneself take precedence over state welfare (cf. BVerfGE 152, 68 <116 Rn. 125>; 163, 254 <280 para. 60>). Even a social state under the rule of law is reliant on public means designated for supporting persons in need only being claimed in cases of true need (BVerfGE 142, 353 <371 para. 39>; 163, 254 <280 f. para. 60>). This serves to protect the state’s limited financial resources, which ensures its future scope for taking action, especially to realise the state policy goal of the social state (BVerfGE 152, 68 <116 para. 124>; 163, 254 <281 para. 60>). The legislator may give effect to the principle of last resort by requiring that individuals first use the financial means available to them through their income, assets or payments by others [before claiming benefits] (cf. BVerfGE 142, 353 <371 para. 39>; 152, 68 <116 f. para. 126>; 163, 254 <281 para. 61>). Additionally, the Basic Law also does not bar the legislator from requiring that recipients of state benefits actively participate in improving their situation so as to no longer be reliant on state benefits or to avoid requiring them in the first place (BVerfGE 152, 68 <117 para. 126>; 163, 254 <281 para. 62>).

131

5. No further standards can be derived from fundamental rights other than Art. 1(1) in conjunction with Art. 20(1) of the Basic Law for the assessment of the level of benefits necessary to secure an existential minimum under social law (cf. BVerfGE 125, 175 <227>; 142, 353 <372 para. 43>; 163, 254 <282 para. 63>). That said, the design of subsistence benefits must also satisfy further constitutional requirements (cf. BVerfGE 142, 353 <371 f. para. 39>; 152, 68 <120 para. 135>; 163, 254 <282 para. 63>).

132

6. Human rights which must be taken into account in the interpretation of the Basic Law (cf. BVerfGE 74, 358 <370>; established case-law; for the law on social assistance BVerfGE 132, 134 <161 f. para. 68>) do not give rise to any further requirements that go beyond those arising from the Basic Law (cf. BVerfGE 132, 134 <161 f. para. 68>; 134, 204 <229 para. 88>; 148, 267 <284 para. 42>; 163, 254 <282 para. 64>). Neither the requirements arising from the European Convention on Human Rights nor those arising from the International Covenant on Economic, Social and Cultural Rights (ICCPR; BGBl II 1973 p. 1569) or from the International Convention on the Elimination of All Forms of Racial Discrimination (BGBl II 1969 p. 961) go beyond the requirements of the Basic Law (cf. BVerfGE 163, 254 <283 para. 66> with further references). The same holds true for the Convention on the Rights of the Child (CRC) of 20 November 1989, which entered into force in Germany on 5 April 1992 and has applied without reservation since 15 July 2010 (cf. BGBl II 1992 p. 121; BGBl II 2011 p. 600). This Convention also contains rules for the design of subsistence benefits, with Art. 3 of the Convention providing that the best interests of the child must be a primary consideration in all actions, while Art. 22(1) of the Convention provides that children who are seeking refugee status in accordance with applicable international or domestic law must not be disadvantaged in the enjoyment of their rights, and Art. 28 of the Convention recognises a right of children to education (cf. BVerfGE 132, 134 <162 para. 68>).

III.

133

The level of basic welfare benefits set out in § 3(2) first sentence, second sentence no. 1 and 5, § 3(2) fifth sentence in conjunction with § 3(1) fifth sentence, eighth sentence no. 1 and 5 of the Asylum Seekers Benefits Act (former version) in need levels 1 and 5 was essentially compatible with these requirements in the period from September 2018 to 20 August 2019. The benefits were not manifestly undercalculated (see 1. below). In principle, the manner in which the legislator derived the benefit rates from the results of the 2008 sample survey rests on sound reasoning. In particular, the legislator was entitled to set lower needs than those laid down in the Twelfth Book of the Code of Social Law on the grounds that residency was expected to be only temporary. In this respect, § 2(1) of the Asylum Seekers’ Benefits Act (former version), which set the duration of basic welfare benefits at 15 months, is compatible with the constitutional requirements (see 2. below) to the extent under review here (cf. paras. 82 ff.). The specific level of benefits in need levels 1 and 5 that applied from 17 March 2016 and had been assessed by the legislator on the basis of the 2008 sample survey rests on sound reasoning (see 3. below). However, benefits granted from September 2018 onwards are no longer based on sufficiently up-to-date data, because the legislator failed to use the data from the 2013 sample survey for the assessment of benefits in the period from September 2018 onwards (see 4. below). In an overall assessment, the constitutional requirements were consequently no longer met (see 5. below).

134

1. During the period of September 2018 to 20 August 2019, the basic welfare benefits for need levels 1 and 5 were not manifestly undercalculated. It is true that there were significant differences between analogous benefits and basic welfare benefits during this period. While analogous benefits amounted to EUR 416 for standard need level 1 and EUR 296 for standard need level 5 pursuant to § 2 of the Ordinance to Update Standard Need Levels 2018 of 8 November 2017 (BGBl I p. 3767), basic welfare benefits – insofar as they were granted exclusively as cash payments – amounted to EUR 354 for need level 1 and EUR 242 for need level 5. This is a reduction of 14.9% compared to the analogous benefits granted for standard need level 1 and of 18.24% compared to those granted for standard need level 5. However, it is not ascertainable that the level of basic welfare benefits could in no way secure physical existence, the possibility to cultivate interpersonal relationships and a minimum degree of participation in social, cultural and political life (cf. BVerfGE 125, 175 <223>), especially since the standard needs that determined the level of analogous benefits under the Twelfth Book of the Code of Social Law additionally contained needs for household items, which are granted separately to recipients of basic welfare benefits (cf. para. 29). Further, neither the referring court nor the plaintiffs in the initial proceedings asserted manifest shortfalls in this regard.

135

2. In principle, the method of calculating the level of basic welfare benefits using data from the 2008 sample survey is not objectionable under constitutional law. The legislator was entitled to base its calculation of basic welfare benefits on the sample survey (see a) below). In light of the uncertain prospects of long-term residency of beneficiaries, there are also sound reasons for the legislator’s exclusion of expenditure items from sections 9 (leisure, entertainment, culture) and 10 (education) of the 2008 sample survey, although these items were included in the calculation of standard needs under the Twelfth Book of the Code of Social Law (see b) below). Moreover, not including section 5 (household items) and individual needs from section 6 (healthcare) and – in need level 1 – expenditure for ID cards in section 12 (other goods and services) when calculating the level of basic welfare benefits is not objectionable (see c) below). It is sufficiently comprehensible that the legislator did not take into account group-specific additional needs for beneficiaries during the initial period of their residency in Germany (see d) below). Finally, there is no indication that, as a result of these exclusions, benefit rates are such that they no longer allow for an existence in accordance with human dignity on the grounds that they no longer permit internal offsetting (see e) below).

136

a) There are sound reasons for the legislator to use the special evaluation of the sample survey, which was used to calculate social assistance benefits and other benefits pursuant to the Twelfth Book of the Code of Social Law, for assessing basic welfare benefits [for asylum seekers] rather than conducting a separate survey specific to the reference group of benefit recipients under the Asylum Seekers Benefits Act. The legislator did not exceed its leeway to decide which method to use for assessing needs (see paras. 119 ff. above). In accordance with the guiding principles of Art. 1(1) in conjunction with Art. 20(1) of the Basic Law, the needs of all persons living in Germany are, as a starting point, the same in regard to the guarantee of an existential minimum in accordance with human dignity (cf. BVerfGE 163, 254 <279 para. 56>). Given the foregoing, the legislator is in principle not obligated to conduct a survey specific to the recipients of basic welfare benefits. It is permitted to rely on surveys intended for the purpose of securing an existential minimum for all persons.

137

b) There are no constitutional concerns regarding the fact that as of 17 March 2016 the legislator, on the basis of the needs determined for all persons living in Germany, did not include in the calculation of benefits – in addition to the expenditure items of the 2008 sample survey not included for the calculation of standard rates under the Twelfth Book of the Code of Social Law (cf. para. 8 above) – certain needs from sections 9 (leisure, entertainment, culture) and 10 (education) of the sample survey for persons eligible for benefits pursuant to the Asylum Seekers Benefits Act on account of their specific circumstances. The decisions not to include these needs are based on the assessment that these needs are not to be recognised as basic needs for persons with uncertain prospects of long-term residency (see aa) below). These assessments are sufficiently comprehensible. Based on the underlying assumption of uncertain prospects of long-term residency during the first 15 months of someone’s stay, the reasons for the deviation from the social and cultural existential minimum under the Twelfth Book of the Code of Social Law are sufficiently comprehensible (see bb) below). Likewise, the assumption that prospects of long-term residency are uncertain in the first 15 months of someone’s stay, which is reflected in the waiting period of 15 months as set out in § 2(1) of the Asylum Seekers Benefits Act (former version), does not raise constitutional concerns; to the extent under review here, § 2(1) of the Asylum Seekers Benefits Act (former version) is constitutional (see cc) below).

138

aa) The inclusion of reduced needs in sample survey sections 9 (leisure, entertainment, culture) and 10 (education) is the result of a legislative assessment. It is not based on the assumption that those eligible for basic welfare benefits actually have lower expenditure. Rather, the legislator made the decision not to include certain (social and cultural) needs during the first 15 months after entry into Germany because it assumed that residency of affected persons has not become sufficiently secure to warrant such inclusion (with reference to such ‘assessment’ cf. BTDrucks 18/7538, pp. 20 ff.).

139

bb) This is not objectionable under constitutional law. The assessment of reduced group-specific needs is not constitutionally objectionable as such, provided that it is sufficiently comprehensible (see (1) below). There are sound reasons for the assumption of a reduced level of needs based on the uncertain prospects of long-term residency during the first 15 months of residence (see (2) below).

140

(1) Within the framework of its leeway in determining subsistence benefits (see para. 119 above), the legislator is not precluded from assuming reduced group-specific needs based on its assessment only (para. 121). If, however, the legislator does not take into account needs for certain groups that it has otherwise recognised as necessary to cover basic needs, the reasons for this must be sufficiently comprehensible (para. 128). In this case, the benefits granted by the legislator are lower than those it has considered necessary to guarantee an existence in accordance with human dignity in other assistance systems (Second and Twelfth Book of the Code of Social Law). Moreover, the legislator must take countermeasures when it can be empirically proven that there are acute shortfalls with regard to needs in reality, contrary to the legislative assessment (in this sense also BVerfGE 163, 254 <285 para. 71>).

141

(2) There are sound reasons for the legislator’s assessment of a reduced level of needs in sections 9 and 10 based on the assumption that the prospects of long-term residency during the first 15 months of someone’s stay are uncertain. Given the basic premise of initially uncertain prospects of long-term residency (see (a) below), not including the affected expenditure items is sufficiently comprehensible and based on sufficiently objective reasons (see (b) below).

142

(a) The exclusion of the affected expenditure items is based on the assumption that the prospects of long-term residency during the first 15 months in Germany are still uncertain. This is reflected in the explanatory memorandum to the draft act, which states that not including the affected items is in all cases based on the lack of secure prospects of residency in the first 15 months. According to the legislator, categorising the expenditure items in question as not relevant to asylum seekers’ needs rests on the assessment that they are not to be recognised as basic needs as long as beneficiaries’ prospects of long-term residency are uncertain and it must therefore be assumed that they will only reside in Germany for a short period. Only once they remain in Germany for a longer period, which is associated with greater integration and participation in society, are these expenditure items to be recognised as relevant to needs, just like for recipients of benefits under the Second and Twelfth Book of the Code of Social Law. According to the legislator, only then can it be assumed that the budgeting and saving function inherent in standard needs can take full effect. This can be the case at the earliest once the ‘waiting period’ pursuant to § 2(1) of the Asylum Seekers Benefits Act (former version) has expired and beneficiaries therefore receive benefits under the Twelfth Book of the Code of Social Law (cf. BTDrucks 18/7538, p. 21).

143

(b) Based thereon, not including the needs in question is sufficiently comprehensible. Prospects of long-term residency are a permissible criterion for differentiation when it comes to the level of subsistence benefits (cf. para. 121 above). Even considering the specific categories of expenditure, the decision not to include such needs does not raise constitutional concerns in light of this objective reason.

144

(aa) Firstly, this applies to the decision not to include needs for purchasing television sets.

145

[…]

146

In this regard, the explanatory memorandum to the draft act states that ‘the budgeting and saving function inherent in standard needs could take full effect [only once the 15-month waiting period has expired]’ (cf. BTDrucks 18/7538, p. 21). This is sufficiently comprehensible. […] Recipients of subsistence benefits can save a certain amount, determined in the special evaluation of the sample survey, each month in order to be able to purchase a television set after a longer period of saving. During the first months of their residency in Germany, those in need level 1 typically cannot save the amount necessary for purchasing a television set given their monthly budget. During the entire 15-month period, they could only save slightly more than EUR 30. The amounts that can thus be saved would usually not be sufficient to purchase a television set, even a second-hand one.

147

It is not objectionable that the legislator as a result excluded the entire savings amount in its calculation of the benefits. Based on its assumption that affected persons have uncertain prospects of long-term residency during their first months in Germany, the legislator could find that the savings amount would then fail to fulfil its purpose altogether. From a strictly economic perspective, persons whose prospects of long-term residency are largely uncertain will not generate such savings. Those who have uncertain prospects of long-term residency will not save money for devices which only make sense for long-term residency and the purchase of which would turn out to be a misallocation of resources if they return to their home country. Given the lack of an incentive to save the amount in question, it can then be found that there is no actual need in this respect.

148

[…]

149

(bb) Furthermore, it is sufficiently comprehensible that needs for data processing and software are not included in the basic welfare benefits as these are not necessary to cover basic needs during the initial period of someone’s residency in Germany (cf. BTDrucks 18/7538, p. 22). A personal computer and software can likewise only be purchased through saving. A short period is not sufficient for saving substantial amounts in this section, as the saving amount designated is EUR 3.44 in need level 1 and EUR 3.35 in need level 5 (no. 54 in need level 1, no. 50 in need level 5, cf. BTDrucks 17/3404, pp. 61, 78). By contrast, expenditure for purchasing a mobile phone or for phone charges, covered by section 8, is fully taken into account.

150

(cc) The same applies with regard to the expenditure items for purchasing and repairing durable goods and cultural and sports equipment […]. The objects in question are typically of higher value, and their purchasing costs cannot be set aside during a 15-month period based on the monthly amount assessed in the special evaluation of the sample survey. In need level 1, an amount of EUR 0.18 is designated for the purchase of these goods ([…]). […]

151

(dd) Moreover, the decision not to include expenditure items for extracurricular classes and hobby courses is not constitutionally objectionable (cf. BTDrucks 18/7538, p. 23).

152

[…]

153

The expenditure items in question include extracurricular individual and group classes in sport or music (such as music, dancing or riding lessons, skiing, sailing, tennis, cookery, painting, pottery, sewing and other hobby courses; this does not include IT courses, first-aid courses, language classes, etc.; […]). The purpose of the recognition of these needs under social law is not only to cultivate one’s personal interests, but also to ensure long-term integration into society. The separation of these expenditure items from regular benefits and their inclusion in the education and participation package for children and youths highlighted the participatory nature of these items. The goal was to achieve greater integration of children and youths in existing associative and community structures and to strengthen contacts with their peers (cf. BTDrucks 17/3404, p. 106 regarding the parallel provision of the then § 28(6) Second Book of the Code of Social Law). According to the legislator, participation in cultural life is a basic prerequisite for actively shaping life in society (cf. BTDrucks 17/3404, p. 106).

154

In light of this purpose, there are sufficient reasons for the legislator’s decision, within the framework of its leeway, not to recognise these expenditure items as necessary to cover basic needs in need level 1. The decision not to include these items affects persons whose prospects of long-term residency are uncertain, whereas the aim of the items in question is to reinforce involvement in social structures and longer-term positive learning outcomes. Such needs must only be met once sufficient prospects of long-term residency exist. The fact that the legislator nevertheless did not touch the education and participation package for eligible minors can be explained by the greater significance of social integration for children for their entire personality development (cf. in this regard BTDrucks 17/3404, pp. 106, 124).

155

(ee) Finally, it is not objectionable under constitutional law that the legislator decided not to include expenditure from sample survey section 10 for courses that do not serve to obtain qualifications – expenditure that amounts to EUR 1.39 in need level 1 and EUR 1.16 in need level 5 ([…], BTDrucks 17/3404, pp. 62, 79).

156

Directly after someone’s entry into Germany, this expenditure item primarily includes language courses (cf. BTDrucks 18/7538, p. 23). While the expenditure item includes different types of classes and trainings that do not serve to obtain qualifications (e.g. accounting, language, IT and first aid courses) ([…]), it is comprehensible that for persons eligible under the Asylum Seekers Benefits Act language acquisition is paramount, as most of the courses covered can only be attended once those concerned have acquired sufficient German language skills.

157

Nonetheless, there are still sufficient reasons for the decision not to include this expenditure item even with respect to such language courses. It is true that the considerations in the explanatory memorandum according to which language courses are less relevant for persons with insufficient prospects of long-term residency due to their lower need for integration are not comprehensible. This is because the most basic means of communication, enabling people to make themselves understood in everyday situations while they are in Germany, are considered part of the socio-cultural existential minimum even for those with little prospects of long-term residency. However, in order to manage such communications, no language courses are needed. To handle shopping or similar everyday situations, it is sufficient to use digital translation tools or free online language courses, which were already widely available in 2018. The legislator could also assume that these costs could be covered by the expenditure item for internet and phone use (in the 2008 sample survey no. 51 in need level 1 and no. 47 in need level 5, cf. BTDrucks 17/3404, p. 78; cf. also BTDrucks 18/7538, p. 22).

158

[…]

159

cc) In § 2(1) of the Asylum Seekers Benefits Act (former version), the legislator determined that prospects of long-term residency were uncertain for a period of 15 months. Based on the applicable standards (cf. para. 121), this does not raise any constitutional concerns, to the extent that § 2(1) of the Asylum Seekers Benefits Act (former version) is subject to review in these proceedings, for persons with temporary suspensions of deportation (excluding those for education and training purposes, cf. para. 112). The duration of a short-term stay had not been exceeded (see (1) below) and the assumption of uncertain prospects of long-term residency was based on sound reasoning (see (2) below). The legislator was not required to create special rules for certain groups of holders of temporary suspensions of deportation (see (3) below).

160

(1) Fifteen months is within the time period recognised as a short stay (cf. BVerfGE 132, 134 <165 paras. 76, 171 f. para. 93>; see para. 121 above).

161

(2) Furthermore, the legislator’s assumption that persons with temporary suspensions of deportation (excluding those for education and training purposes) do not have certainty in regard to long-term residency until the end of their 15th month in Germany rests on sound reasoning. While the explanatory memorandum to the draft Act Amending the Asylum Seekers Benefits Act and the Social Courts Act only addresses holders of residence permits pursuant to § 1(1) no. 1 of the Asylum Seekers Benefits Act when it comes to the 15-month waiting period (cf. para. 25 above), there are also objective reasons for setting the waiting period at 15 months for holders of temporary suspensions of deportation, which is the group at issue here.

162

(a) A temporary suspension of deportation is not a legal institution generally directed at continued residency.

163

It is true that persons subject to an enforceable order to leave the country – which also includes holders of temporary suspensions of deportation – may be granted a residence permit if departure is impossible in fact or in law in accordance with § 25(5) first sentence of the Residence Act; pursuant to § 25(5) second sentence of the Residence Act a temporary residence permit ‘is to be’ granted if deportation has been suspended for 18 months (cf. in this regard Federal Administrative Court, Judgment of 27 June 2006 - 1 C 14.05 -, juris, paras. 14 ff.). This can be followed by a permanent settlement permit, subject to the conditions set out in § 26(4) and §9(2) of the Residence Act (cf. in this regard Federal Administrative Court, Judgment of 16 August 2011 - 1 C 4.10 -, juris, paras. 12 ff.). These, however, are narrow provisions. Outside their scope of application, the core decision applies that residency based on a temporary suspension of deportation is unlawful; furthermore, the intended discretion for decisions [on residence permits] in case of suspensions of deportation for more than 18 months pursuant to § 25(5) second sentence of the Residence Act does not apply during the 15-month waiting period pursuant to § 2(1) of the Asylum Seekers Benefits Act (former version).

164

The other grounds on which persons with temporary suspensions of deportation can be granted a temporary residence permit (in the period under constitutional review here) also concerned a small group of persons only. […]

165

[…]

166

(b) In addition, statistical surveys during the period at issue tenably demonstrate that at least up until the end of the first 15 months following entry into Germany, the average person with a temporary suspension of deportation did not have certainty in regard to their continued residence in Germany.

167

It follows from the Central Register of Foreigners for the period from December 2013 to June 2017 that the majority of persons with temporary suspensions of deportation resided in Germany for less than three years from their date of entry ([…]) (cf. for reference date 31 December 2013: BTDrucks 18/1033, pp. 23 f. <on question 18>; reference date 31 December 2014: BTDrucks 18/3987, pp. 26 f. <on question 19>; reference date 31 December 2015: BTDrucks 18/7800, pp. 24 f. <on question 18>; reference date 30 June 2016: BTDrucks 18/9556, pp. 28 f. <on question 18>; reference date 30 June 2017: BTDrucks 18/13537, pp. 37 f. <on question 18>). In December 2015, June 2016 and June 2017, around one third of persons with temporary suspensions of deportation had resided in Germany for more than three years, amounting to 46,947 of 155,308 persons as of 31 December 2015 (BTDrucks 18/7800, p. 25), 47,523 of 168,212 persons as of 30 June 2016 (BTDrucks 18/9556, p. 29) and 50,884 of 159,678 persons as of 30 June 2017 (BTDrucks 18/13537, p. 38). Thus, about two thirds of the holders of temporary suspensions of deportation had left Germany within three years. Previously, the percentage of those who had remained in Germany for more than three years amounted to approximately 41% as of 31 December 2014 (cf. BTDrucks 18/3987, p. 26: 47,143 of 113,221 persons) and to approximately 46% as of 31 December 2013 (cf. BTDrucks 18/1033, p. 24: 44,233 of 94,508 persons), i.e. only a minority of holders of temporary suspensions of deportation had remained in Germany for more than three years. Based on these figures, it is not objectionable to assume that the average person with a temporary suspension of deportation does not have specific prospects of long-term residency until they have been in Germany for more than 15 months.

168

From the end of 2017, a new trend emerged, in the course of which the majority of persons with temporary suspensions of deportation remained in Germany for five years or more ([…]). For example, at the end of 2022, 248,145 persons with temporary suspensions of deportation were registered in the Central Register of Foreigners, with 182,187 persons (73.42%) having stayed in Germany for more than three years and 136,204 persons (54.89%) having stayed in Germany for more than five years (cf. BTDrucks 20/5870, p. 35). In the period under constitutional review here, 1 September 2018 to 20 August 2019, the legislator was nevertheless not compelled to respond to these initial changes in the duration of the stay of persons with temporary suspensions of deportation. This is because the large number of persons with temporary suspensions of deportation who remained in Germany for longer periods from then on resulted from the significantly larger number of asylum seekers who entered Germany in 2015 and 2016 compared to previous years ([…]). In 2017 and 2018, however, the number of persons entering Germany fell significantly ([…]), so that the legislator did not have to make adjustments on the basis of prospects of longer residency from the outset.

169

(3) The legislator was also not required to make a finer distinction – at least for certain groups of persons with temporary suspension of deportation – and provide for analogous benefits at an earlier date. It was permitted to engage in typification with regard to persons with temporary suspension of deportation for the first 15 months of residence. Individual investigations by the authorities responsible for enforcing the Asylum Seekers Benefits Act would require great efforts. It is also not possible to identify, based on general characteristics, groups which could be expected to have better prospects of longer-term residency from the outset. The group of persons with temporary suspensions of deportation is very diverse. A significant number of temporary suspensions of deportation are granted on grounds relating to the personal circumstances of the holders (cf., for the year 2018, BTDrucks 19/8258, p. 38 and the grounds for temporary suspension listed there: no. 3 <lack of travel documents>, no. 4 <family ties specified therein>, no. 5 <medical reasons>, no. 7 <conduct of criminal proceedings>, no. 8 <urgent humanitarian or personal reasons such as the completion of a training programme or care for sick family members>) or relating to their entry behaviour, with the result that any prognosis regarding the prospects of long-term residency would often require the authority responsible for enforcing the Asylum Seekers Benefits Act to have a thorough understanding of the individual circumstances of each beneficiary. Although there are longer-term obstacles to return such as wars in certain countries of origin, it is hardly possible to identify countries whose nationals are granted temporary suspensions of deportation primarily on grounds pertaining to the country of origin (cf., for the year 2018, BTDrucks 19/8258, p. 38 and grounds no. 2 <deportation ban> and no. 6 <temporary suspension of deportation for other reasons>), rather than on personal grounds. Even for countries that have a high proportion of temporary suspensions of deportation on grounds pertaining to the country of origin, grounds resulting from the individual sphere typically prevail (cf., for 2018, BTDrucks 19/8258, p. 38).

170

dd) Thus, the decision not to include expenditure items from sections 9 and 10 on account of a lack of prospects of long-term residency and their statutory determination in § 2(1) of the Asylum Seekers Benefits Act (former version) are not constitutionally objectionable to the extent under review here.

171

c) The legislator’s decision not to include section 5 (household items) from the 2008 sample survey, expenditure for individual healthcare contributions from section 6 (healthcare) and costs for obtaining an ID card from section 12 (other goods and services) also rests on sound reasoning. The groups under review here either do not have these needs, or the needs are met in other ways.

172

aa) The legislator did not include needs for household items in its calculation of basic welfare benefits. The explanatory memorandum to the draft act points out that the needs for household items are provided separately as cash payments or benefits in kind pursuant to § 3(3) fourth sentence of the Asylum Seekers Benefits Act (former version), just as needs for housing and heating, and the entirety of section 5 (household items) is therefore not included in the calculation of basic welfare benefits. According to the memorandum, these needs are typically met through benefits in kind; beneficiaries often only reside in Germany for a very short period and do not have basic household equipment (cf. BTDrucks 18/2592, p. 24).

173

This is sufficiently comprehensible (cf. regarding the separate provision of needs BVerfGE 125, 175 <237>). Concerns that ongoing needs to replace household items (e.g. crockery, household appliances, towels, bedding) are not included ([…]) are unfounded if § 3(3) fourth sentence of the Asylum Seekers Benefits Act (former version) is interpreted in conformity with the Constitution ([…]); it is compatible with the provision’s wording that ‘household items’ also cover needs to replace household items. Consumables such as cleaning products can likewise be included in ‘household items’ within the meaning of § 3(3) fourth sentence of the Asylum Seekers Benefits Act (former version) ([…]). That the separate provision of consumables may be impractical and entail significant administrative burdens ([…]) does not give rise to a violation of Art. 1(1) in conjunction with Art. 20(1) of the Basic Law.

174

bb) It is also comprehensible that the legislator did not include costs for individual healthcare contributions from section 6 (healthcare) on the grounds that beneficiaries under the Asylum Seekers Benefits Act do not have access to statutory health insurance as a result of their status, meaning that expenditures from section 6, which are only payable by persons covered by statutory health insurance, are not incurred by beneficiaries under the Asylum Seekers Benefits Act (cf. BTDrucks 18/2592, p. 24).

175

This decision rests on sufficiently sound reasons. Individual healthcare contributions under the law on statutory health insurance (cf. §§ 61 and 62 Fifth Book of the Code of Social Law) are typically not incurred by recipients of basic welfare benefits, because benefits under the Asylum Seekers Benefits Act do not give rise to a statutory insurance obligation under § 5 of the Fifth Book of the Code of Social Law. Healthcare is typically provided to recipients of basic welfare benefits under the conditions set out in § 4 of the Asylum Seekers Benefits Act by the authority responsible for enforcing said Act. […]

176-178

cc) […]

179

d) The legislator’s decision not to provide for group-specific additional needs for beneficiaries with temporary suspensions of deportation that could have compensated for the reduced needs assessed by the legislator still rests on sufficiently sound reasoning.

180

aa) The legislator’s consideration that no group-specific additional needs exist in section 6 (healthcare) rests on sound reasoning. In particular, it did not have to assume group-specific additional needs for translation services during doctor’s appointments or for the necessity of more frequent trips (cf. Refugee Council Berlin, statement on the Act Amending the Asylum Seekers Benefits Act and the Social Courts Act, Bundestag committee document, Bundestagsausschussdrucksache – BTAusschussdrucks 18(11)220, p. 24).

181

Where, in individual cases, it is necessary to hire a translator during a doctor’s appointment, the competent authority must cover the resulting costs either as ‘other benefits’ within the meaning of § 4(1) first sentence of the Asylum Seekers Benefits Act ([…]) or, as the case may be, on the basis of § 6 of the Asylum Seekers Benefits Act ([…]).

182

The same applies to travel expenses. […]

183

bb) Further, the assumption that generally greater needs in section 7 (transport) could not be assessed or estimated is within the leeway afforded to the legislator; insofar as particular needs arise in individual cases that could justify other benefits, these are to be provided under § 6 of the Asylum Seekers Benefits Act (cf. BTDrucks 18/2592, p. 23). It is not ascertainable that beneficiaries typically have higher transport costs because they are more frequently housed in rural areas (cf. the statements submitted in the present proceedings by the Federal Working Group of Independent Welfare Organisations, Pro Asyl, the German Bar Association and the Refugee Council Berlin). There is no evidence to suggest that beneficiaries primarily live in rural areas ([…]). In particular, this also applies in respect of persons with temporary suspensions of deportation ([…]). There are also sufficient reasons for the assessment that the frequency of trips to authorities, advice centres and lawyers (cf. Refugee Council Berlin, BTAusschussdrucks 18(11)220, p. 26) is not significantly greater than the mobility needs of other groups, for example of job seekers receiving benefits under the Second Book of the Code of Social Law.

184

cc) Furthermore, the legislator’s decision not to assume greater expenditure in section 8 (communication) is within its leeway.

185

The explanatory memorandum to the Act Amending the Asylum Seekers Benefits Act and the Social Courts Act states that there is no plausible evidence that the telecommunications behaviour of persons with uncertain prospects of long-term residency differs from that of persons with secure residence status. Yet even if the telecommunications behaviour of migrants and non-migrants were to differ, for example as regards the frequency and duration of international calls, this could not plausibly justify an increase in the consumption expenditure relevant to standard needs due to the different rates that depend on the country in question. The legislator stated that, insofar as particular needs arise in individual cases that justify other benefits, these are to be provided under § 6 of the Asylum Seekers Benefits Act (cf. BTDrucks 18/2592, p. 23).

186

This is sufficiently comprehensible. International calls can typically be made using mobile data (cf. para. 157 above). Moreover, free or low-cost Wi-Fi connections enabling internet telephony are often available in public areas.

187

dd) The legislator also did not exceed its leeway insofar as it did not apply increased needs for legal advice, legal representation or necessary translation services when calculating basic welfare benefits (cf. in this regard Refugee Council Berlin, BTAusschussdrucks 18(11)220, p. 26; cf. also the statement submitted in the present proceedings by the Federal Working Group of Independent Welfare Organisations). Regardless of whether the costs for legal advice and related expenses (in particular costs for translators) even fall within the scope of Art. 1(1) in conjunction with Art. 20(1) of the Basic Law ([…]), rather than merely affecting the fundamental right to equal legal protection following from Art. 3(1) in conjunction with Art. 20(3) of the Basic Law, or from Art. 19(4) of the Basic Law ([…]), the provisions on legal aid sufficiently guarantee that the costs for legal advice and legal representation, including translation services, are borne for recipients of basic welfare benefits.

188

The provisions on legal aid (cf. § 2(1) Act on Advisory Assistance and Representation for Citizens with a Low Income, Beratungshilfegesetz – BerHG, § 122(1) Code of Civil Procedure, Zivilprozessordnung – ZPO; § 44 first sentence, § 45(1) and § 46(2) Act on the Remuneration of Lawyers, Rechtsanwaltsvergütungsgesetz – RVG) sufficiently guarantee financial relief from the costs for legal representation in administrative and court proceedings and for necessary translation and interpreting services.

189

In this regard, it is compatible with EU law requirements for the legal protection of refugees (cf. Art. 27(6) subpara. (2) Dublin III Regulation; Art. 20(3) Asylum Procedures Directive; Art. 29(3) subpara. (2) Reception Directive) that legal aid requires sufficient prospects of success and is not granted if the action seems frivolous.

190

e) There is also no indication that, as a result of the exclusion of certain needs, benefit rates are such that they no longer allow for a living on the grounds that they no longer permit internal offsetting.

191

aa) Within the model chosen by it, the legislator must ensure that shortfalls that arise from subsequent reductions of the statistically determined monthly lump sum can in fact be covered through internal offsetting or saving. It is incumbent upon the legislator to create sufficient financial latitude, provide for a right to receive an allowance in addition to standard needs for existential needs that can evidently not be covered by the lump sum or, insofar as public services are concerned, to waive or defer their cost (cf. BVerfGE 137, 34 <102 para. 147>).

192

bb) The legislator did not exceed this leeway, in respect of which review must be exercised with restraint (cf. paras. 122 ff.), despite the modest level of basic welfare benefits. On the one hand, the legislator reduced the needs for savings regarding various items through its assessment (cf. para. 138). On the other, the Federal Constitutional Court in a previous decision raised doubts regarding the possibility of internally offsetting benefits under the Second Book of the Code of Social Law, in particular as regards household appliances and shoes for children aged seven to 14 (cf. BVerfGE 137, 34 <92 f. paras. 120 f., 95 para. 128>). Recipients of basic welfare benefits do not have to pay for household appliances because these can be provided separately where needed. In particular when beneficiaries first move into a home, household appliances can be provided separately in the form of benefits in kind (cf. para. 172). An initial supply of clothing, too, can be provided in the form of benefits in kind after someone’s arrival in Germany (cf. para. 18). All in all, it is thus sufficiently comprehensible that there is no risk of shortfalls.

193

3. The benefits calculated by the legislator on the basis of these determinations of needs from the special evaluation of the 2008 sample survey and the individual items set out therein, at the level applicable from 17 March 2016, likewise rest on sound reasoning. While the amount of EUR 10 by which basic personal needs decreased in both need level 1 and need level 5 as of 17 March 2016 compared to previous benefits is not derived mathematically in the explanatory memorandum, it is objectively comprehensible on the basis of the data from the special evaluation of the 2008 sample survey both in need level 1 ([…]) and in need level 5 ([…]). For the rest, too, the calculation of benefits on the basis of the results of the 2008 sample survey does not raise concerns.

194-197

[…]

198

4. However, the continued use of the data from the 2008 sample survey during the period of September 2018 to 20 August 2019, rather than the data from the 2013 sample survey, which was the most current data available at the time, is not compatible with the requirements for an up-to-date calculation of benefits that follow from Art. 1(1) in conjunction with Art. 20(1) of the Basic Law. The time to implement an update to benefits using the 2013 sample survey that was still compatible with constitutional requirements had, in any case, expired by September 2018.

199

a) The legislator must determine the needs of persons in need on a timely basis (para. 118). It has considerable leeway in determining what is necessary to secure an existence in accordance with human dignity (paras. 119 ff.). This, in turn, requires that the assessment basis remains up to date, so that subsistence is not endangered by changes occurring over time, in particular by changes in spending behaviour of the population and an increase in the rate of inflation.

200

b) It was no longer based on sufficient reasons that the legislator had not taken into account the results of the 2013 sample survey for calculating basic welfare benefits for the period from September 2018. By September 2018, almost two years had passed since the special evaluation of the 2013 sample survey had been published (see aa) below). It is incompatible with the constitutional requirements for keeping benefits up to date that the results of a new special evaluation have not been implemented two years after its publication (see bb) below). The failure of the first draft of the Third Act Amending the Asylum Seekers Benefits Act due to the principle of parliamentary discontinuity is also not capable of justifying this delay (see cc) below).

201

aa) By September 2018, almost two years had passed since the special evaluation of the 2013 sample survey had been published, but the legislator had not reassessed benefits on the basis of this data. The special evaluation of the 2013 sample survey was available by autumn 2016 at the latest, given that the Federal Government introduced in the Bundestag draft legislation based on this evaluation for the Act Assessing Standard Needs 2017 and the first draft of the Third Act Amending the Asylum Seekers Benefits Act, which failed due to the principle of parliamentary discontinuity.

202

bb) It is incompatible with the constitutional requirements for keeping benefits up to date that the results of a new special evaluation have not been used for the current assessment of benefits two years after its publication.

203

In this regard, however, time requirements cannot simply be derived without closer scrutiny from the requirements applicable to updates of benefits by the Federal Ministry for Labour and Social Affairs during periods between two reassessments by the legislator. In principle, even a delay of six months in the consideration of price increases in the context of updates of benefits by the Federal Ministry for Labour and Social Affairs requires explanation, even if it can ultimately still be justified in view of the time necessary for implementing the results of evaluations in an ordinance (cf. regarding § 28a Twelfth Book of the Code of Social Law in the version applicable from 1 January 2011 to 30 June 2020 BVerfGE 137, 34 <100 para. 139>). By contrast, the parliamentary legislator is accorded more time to react to such changes, in light of the rules for parliamentary procedures to implement a new special evaluation and the necessity of political compromise. However, the inability to implement specific political desires as to statutory design does not exempt the legislator from its constitutional duty to update the basis for the calculation of benefits. A more than two-year delay after the evaluation of the sample survey exceeds the limits of what is tenable under constitutional law.

204

Two years after its creation, a special evaluation has already exceeded more than a third of its period of validity, since the sample survey is usually conducted every five years and a new special evaluation is also available in five-year intervals (with a time lag). Moreover, the relevance of data from the sample survey on which the evaluation is based decreases considerably in the course of two years; this is all the more significant as several years have already passed between the sample survey and the start of the legislative process to reassess needs due to the unavoidable delays resulting from the creation of the special evaluation. The consumption behaviour of the reference groups may have changed considerably during this period.

205

cc) In the present case, it does not constitute a sound reason for a longer period of adaptation that at the start of 2017, the legislator wanted to combine the implementation of the 2013 sample survey in the Asylum Seekers Benefits Act with other new rules – initially, it wanted to introduce the separate provision of household electricity and a special need level for persons living in reception centres and collective accommodation in such a way that those eligible for basic welfare benefits would only receive benefits under need level 2 (cf. para. 5) and those eligible for analogous benefits would only receive benefits under standard need level 2 (cf. paras. 5 and 26; cf. BTDrucks 18/9985, p. 11) – and that this project failed in the autumn of 2017 due to the principle of parliamentary discontinuity. By September 2018, a year had passed since the 19th German Bundestag had convened in the autumn of 2017. During this period, it would have been possible to draft a new law reassessing the benefits. The urgent necessity to reassess the benefits on the basis of the 2013 sample survey also followed from the fact that by September 2018 about ten years had passed since the 2008 sample survey, which continued to provide the basis for the benefit rates. The relevance of the data from the 2008 sample survey, collected in 2008, had therefore decreased considerably. In 2018, data for the 2018 sample survey was already being collected.

206

5. As a result of the failure to update the benefit rates on the basis of the 2013 sample survey, it is no longer possible to conclude that the goal of guaranteeing an existential minimum in accordance with human dignity was met with regard to need levels 1 and 5. Had the benefit levels been based on the special evaluation of the 2013 sample survey, which the legislator had used as a basis for calculating benefits under the Second and Twelfth Book of the Code of Social Law from January 2017, it would have resulted in an increase in monthly benefits of at least EUR 15 for need level 1 and at least EUR 30 for need level 5 respectively (see a) below). There are no sound reasons for the legislator’s failure to increase benefits in an amount of this magnitude during the period which is subject to constitutional review (see b) below). Given the constitutive significance of the notice published by the Federal Ministry for Labour and Social Affairs regarding an update of the benefits pursuant to § 3(4) of the Asylum Seekers Benefits Act (former version), there also had been no increase of benefit rates by law which could have compensated for this discrepancy at least in part (see c) below). Given this not insubstantial difference, the constitutional violation is not remedied by the fact that the legislator eventually rectified the discrepancy by enacting new provisions based on the 2013 sample survey, which entered into force on 1 September 2019 (see d) below).

207

a) aa) If, starting from September 2018, the legislator had calculated the benefits for need level 1 on the basis of the values from the 2013 sample survey (cf. in this regard BTDrucks 18/9984, pp. 36 ff.; […]), this would have resulted in appreciably higher monthly basic welfare benefits. This would hold true even if the legislator had merely used the price increases of goods relevant to standard needs for extrapolating the 2013 figures to 2018, rather than using the composite index, which was made up by 30% of net wage development and which had up to this point been used for the reassessment of benefits on the basis of a new special evaluation (cf. paras. 9 and 26).

208

In the reference years for extrapolating the figures from the 2013 sample survey to 2018, net wage growth was typically above the rate of inflation (on the figures cf. BTDrucks 20/208, p. 3). That said, the rate of inflation is the key parameter to protect the real value of subsistence benefits (cf. BVerfGE 137, 34 <99 para. 137>). An extrapolation of the amounts from the 2013 sample survey for 2017 on the basis of an inflation rate of 2.3% overall (cf. BTDrucks 18/9984, p. 83; BTDrucks 20/208, p. 3) and of an additional 1.3% for 2018 (cf. BTDrucks 20/208, p. 3) would have resulted in basic needs of EUR 223 (rounded) instead of EUR 219, which was the amount assessed and updated on the basis of the 2008 sample survey, and basic personal needs of EUR 146 (rounded) instead of the previous amount of EUR 135. Overall, basic welfare benefits would have been approximately EUR 15 higher than the previous overall amount of EUR 354 that was based on the 2008 sample survey.

209

bb) In need level 5, applicable to children aged six to thirteen, basic needs in the period from September 2018 would have been EUR 181 (rounded), rather than EUR 159, and basic personal needs would have amounted to at least EUR 91 (rounded), rather than EUR 83 if the legislator had based its calculations on the 2013 sample survey (cf. in this regard BTDrucks 18/9984, pp. 60 ff.; regarding needs marked ‘/’ cf. para. 145) to the extent of the needs previously included and had updated them for 2018 using the rate of inflation of goods relevant to standard needs. All in all, this adds at least EUR 30 to the previous overall amount of EUR 242.

210

b) There are no other sound reasons for the legislator’s failure to increase basic welfare benefits in an amount of this magnitude during the period which is subject to constitutional review and for its decision to continue to use the benefit amounts applicable since 17 March 2016.

211

aa) In the overall assessment to be conducted in this regard (cf. BVerfGE 137, 34 <77 para. 86, 94 para. 126>), it must be taken into account that the legislator, in redesigning benefits for asylum seekers in 2015, derived the benefit rates from the 2008 figures collected in the framework of the 2008 sample survey using a composite index in accordance with §§ 28a and 138 of the Twelfth Book of the Code of Social Law (cf. BTDrucks 18/2592, p. 25) which, in addition to the rate of inflation of goods relevant to standard needs, which is central for constitutional review, also included 30% net wage growth, which was for the most part above inflation in the reference years; it must also be taken into account that updates in October 2015 and from 1 January 2016 had made use of the composite index. If the legislator had only used the rate of inflation of goods relevant to standard needs and disregarded net wage growth, the resulting amounts would only have been about 2% lower (i.e. a difference of approximately EUR 7 in need level 1 and below EUR 5 in need level 5); the previous consideration of net wage growth for the assessment of basic welfare benefits is therefore not capable of justifying the difference in benefit rates in question here.

212

bb) In need level 5, the benefit rates in the period under review also could not be justified by the consideration that beneficiaries who are minors could receive certain education and participation benefits separately in accordance with § 34 of the Twelfth Book of the Code of Social Law and that the participation package pursuant to § 34(7) of the Twelfth Book of the Code of Social Law was generous.

213-215

[…]

216

c) Furthermore, no update of benefits in accordance with § 3(4) of the Asylum Seekers Benefits Act (former version) had occurred on 1 January 2017, 2018 and 2019, which could have offset the established discrepancy at least in part.

217

According to the prevailing view in the case-law of the social courts and in legal scholarship, the notice published by the Federal Ministry for Labour and Social Affairs regarding an update of the benefits pursuant to § 3(4) of the Asylum Seekers Benefits Act (former version) had constitutive significance (cf., e.g., Bavarian Higher Social Court, Judgment of 11 December 2020 - L 8 AY 32/20 -, juris, paras. 34, 36; Hamburg Social Court, Order of 8 July 2019 - S 28 AY 48/19 ER -, juris, para. 10; Nuremberg Social Court, Judgment of 19 October 2020 - S 5 AY 137/20 -, juris, paras. 22 f.; […]).

218

This interpretation of § 3(4) of the Asylum Seekers Benefits Act (former version), which was also adopted by the referring court, must be reviewed by the Senate on its own authority, at least as regards its constitutionally relevant aspects, because the precise amounts of the benefit rates under review depend on the correct understanding of the provision (cf. regarding the Federal Constitutional Court’s powers of interpretation para. 115 above). The outcome of such review is that this interpretation is correct. Neither the authorities nor the courts can update benefits. Even the provision’s wording indicates a constitutive significance of the notice, because it presumes an external act of updating. A systematic comparison with the law on basic income support for job seekers under the Second Book of the Code of Social Law shows that a similar provision on updating benefits, on which § 3(4) of the Asylum Seekers Benefits Act (former version) was modelled, applied to benefits for job seekers, which likewise provided for an update in accordance with the ordinance pursuant to § 28a of the Twelfth Book of the Code of Social Law and a notice published by the Federal Ministry for Labour and Social Affairs in the Federal Law Gazette (cf. § 20(5) Second Book of the Code of Social Law in the version of the Act Assessing Standard Needs and Amending the Second and Twelfth Book of the Code of Social Law of 24 March 2011 <BGBl I p. 453>, most recently amended by the Ninth Act Amending the Second Book of the Code of Social Law – Legislative Simplification – and Temporarily Suspending the Obligation to File for Bankruptcy of 26 July 2016 <BGBl I p. 1824>). The explanatory memorandum on § 20(1a) of the Second Book of the Code of Social Law also stated that the notice had such constitutive significance; as of 1 January 2017, the provision has stipulated that the ordinance pursuant to § 28a of the Twelfth Book of the Code of Social Law for matters falling under the Second Book of the Code of Social Law has direct binding effect too (cf. BRDrucks 541/16, p. 106).

219

With regard to its purpose and legislative history, § 3(4) of the Asylum Seekers Benefits Act (former version) cannot be interpreted in conformity with the Constitution to the effect that updating basic welfare benefits does not depend on a notice by the Federal Ministry for Labour and Social Affairs and takes effect by law at least in cases where the legislator did not reassess basic welfare benefits in a timely manner, contrary to the constitutional requirements. Such an interpretation would be incompatible with the legislative purpose underlying § 3(4) of the Asylum Seekers Benefits Act (former version) – creating immediate clarity regarding the level of relevant benefit rates ([…]). The mode of updating benefits would be tied to a preliminary constitutional question – the scope of the legislator’s duty to update benefits and potential breaches of this duty.

220

The reasons preventing the Federal Ministry for Labour and Social Affairs from updating benefits pursuant to § 3(4) of the Asylum Seekers Benefits Act (former version) are also irrelevant under constitutional law. The legislator was still responsible for a timely update of the benefits. It could have taken the legislative initiative and adopted an act of Parliament at any time (regarding ordinances cf. BVerfGE 22, 330 <346>; 114, 196 <234>).

221

d) Due to the not inconsiderable scale of the difference in benefit amounts, the fact that the legislator based new provisions which came into force on 1 September 2019 (see para. 39 above) on the data from the 2013 sample survey has no bearing on the constitutional assessment.

D.

I. 

222

The provisions referred for review, § 3(2) first sentence and second sentence no. 1 and 5 of the Asylum Seekers Benefits Act and § 3(2) fifth sentence of the Asylum Seekers Benefits Act in the version of the Act to Accelerate Asylum Procedures of 20 October 2015 (BGBl I p. 1722) in conjunction with § 3(1) fifth sentence of the Asylum Seekers Benefits Act in the same version and § 3(1) eighth sentence no. 1 and 5 of the Asylum Seekers Benefits Act in the version of the Act Introducing Accelerated Asylum Procedures of 11 March 2016 (BGBl I p. 390) are declared incompatible with the Constitution in the period under review here, from 1 September 2018 to 20 August 2019, but they are not declared void. A declaration of voidness (cf. § 82(1) in conjunction with § 78 Federal Constitutional Court Act, Bundesverfassungsgerichtsgesetz – BVerfGG) would completely remove the statutory basis for benefits to secure an existential minimum in accordance with human dignity, yet such a statutory basis is required under Art. 1(1) in conjunction with Art. 20(1) of the Basic Law. This would lead to a state of affairs that would be even farther from the constitutional order than the current state of affairs (cf. BVerfGE 125, 175 <255 f.>; 132, 134 <173 f. para. 97>; 163, 254 <297 f. paras. 96 f.>).

II.

223

1. The declaration of incompatibility is combined with an order for the continued applicability of the provisions (cf. BVerfGE 165, 1 <100 para. 201> – Police powers under the Security and Public Order Act for Mecklenburg-Western Pomerania; 166, 1 <89 Rn. 187> – Child marriages; 169, 1 <63 f. para. 111> – Paternity challenges; 170, 293 <372 para. 176>). The legislator is not obligated under Art. 1(1) in conjunction with Art. 20(1) of the Basic Law to retroactively increase benefits for the time period prior to the decision by the Federal Constitutional Court (cf. BVerfGE 132, 134 <178 para. 111>; 152, 68 <150 para. 219>; 163, 254 <298 para. 98>). As the benefits were not manifestly undercalculated and the legislator changed the basis of calculation to the 2013 sample survey as of 1 September 2019, it was also not necessary to require in the order of continued applicability that a higher level of benefits should apply during the period subject to constitutional review.

224

2. Due to the continued applicability of the provisions, the plaintiffs in the initial proceedings cannot receive (higher) benefits on the grounds that the statutory provisions regarding the level of standard benefits are incompatible with the Basic Law (cf. BVerfGE 125, 175 <259>). However, the unconstitutionality of the provisions at issue must duly be taken into account in the context of a decision on the costs of the proceedings, to the extent that the statutory provisions allow for it (cf. BVerfGE 125, 175 <259>; 132, 134 <178 f. paras. 111 ff.>; 152, 68 <151 para. 223>).

III.

225

§ 2(1) of the Asylum Seekers Benefits Act (former version) was compatible with the requirements arising from Art. 1(1) in conjunction with Art. 20(1) of the Basic Law with regard to the scope and period under constitutional review (cf. paras. 159 through 169); this provision is declared compatible with the Basic Law.

E. 

226

The decision was taken with dissenting votes.