Basic welfare benefits for asylum seekers
In an order published today, the First Senate of the Federal Constitutional Court held that, for the period of 1 September 2018 to 20 August 2019, the level of basic welfare benefits - for the first 15 months of residence in Germany - which the Asylum Seekers’ Benefit Act (Asylbewerberleistungsgesetz – AsylbLG) afforded to asylum seekers at need levels 1 and 5 who were not living in a reception centre was in substantial part compatible with the Basic Law.
In its order, the Senate declared that § 3(2) first sentence and 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) was, for the most part, consistent with the requirements of Art. 1(1) in conjunction with Art. 20(1) of the Basic Law (Grundgesetz – GG) for ensuring an existential minimum in accordance with human dignity. In particular, given that asylum seekers eligible for benefits are expected to have only temporary residence, the legislator is not required to take into account certain needs which are recognised as basic needs under social assistance law. In this regard, setting the duration of basic welfare benefits at 15 months in § 2(1) of the Asylum Seekers’ Benefits Act (former version) is also not objectionable under constitutional law insofar as it pertains to persons with a temporary suspension of deportation (excluding those persons with a temporary suspension of deportation for the purpose of job training).
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. The Senate therefore declared § 3 of the Asylum Seekers’ Benefits Act (former version), to the extent that it set the level of basic welfare benefits during the period of 1 September 2018 to 20 August 2019, to be incompatible with the Basic Law but nevertheless applicable. The Senate declared the provision in § 2(1) first half-sentence of the Asylum Seekers’ Benefits Act (former version) in the same time period to be compatible with the Basic Law.
The decision was taken with dissenting votes.
Facts of the case:
The initial proceedings involve a dispute as to the level of basic welfare benefits for the month of September 2018 pursuant to the Asylum Seekers’ Benefits Act for persons at need levels 1 and 5 who are not living in a reception centre.
I. The Asylum Seekers’ Benefits Act establishes special rules for basic welfare benefits for asylum seekers, persons with temporary suspension of deportation and persons subject to deportation. Pursuant to § 2(1) of the Asylum Seekers’ Benefits Act, these persons may only receive benefits analogous to those provided for under the Twelfth Book of the Code of Social Law (Zwölftes Buch Sozialgesetzbuch – SGB XII), referred to as analogous benefits, after the expiration of a waiting period, which in September 2018 was 15 months after entry into Germany. Until the expiration of the waiting period, they receive basic welfare benefits.
Since March 2015, the calculation of basic welfare benefits has been based on the framework of social assistance law. The benefits to be paid are differentiated into six different levels of need, which correspond to the levels of need in social assistance law. For the calculation of benefits, the legislator relied on data from a special evaluation conducted for the calculation of standard needs under social assistance law using the sample survey of household income and expenditure (Einkommens- und Verbrauchstichprobe – EVS, hereinafter: sample survey). In March 2015, this evaluation was based on the 2008 sample survey. However, certain needs which would be included in the calculation of benefits pursuant to the Twelfth Book of the Code of Social Law were not taken into account in the calculation of the basic welfare benefits; as of 17 March 2016, these included certain benefits from Section 9 of the sample survey (recreation, entertainment, culture) and Section 10 (education), among them televisions, personal computers and software, musical instruments and sports equipment and lessons. In this regard, the legislator assumed that it was not necessary to take these particular (social and cultural) needs into account for persons whose residence in Germany was not yet firmly established.
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 most recently conducted special evaluation of the 2013 sample survey. However, the draft law fell victim to parliamentary discontinuity, and lapsed automatically with the end of the parliamentary term.
II. Plaintiff no. 1 in the initial proceedings is the mother and sole parent of plaintiff no. 2, a child born in February 2011. Both are citizens of Eritrea. In the initial proceedings, they seek a higher level of basic welfare benefits pursuant to the Asylum Seekers’ Benefits Act for the month of September 2018. During this month, they both had temporary suspensions of deportation and lived together in an apartment.
The Lower Saxony/Bremen 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) is compatible with the Basic Law.
Key considerations of the Senate:
I. The referral must be limited.
1. The referred provisions are only subject to constitutional review with regard to the subset of rules in § 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), which pertain to need levels 1 and 5. These are the only provisions which are relevant to the initial proceedings.
2. The referred provisions are not subject to constitutional review for the entire period of their applicability. Nevertheless, the Senate extended its review beyond September 2018, the period in dispute in the initial proceedings, to 20 August 2019, because the statutory criteria that are decisive for the initial proceedings remained in effect without changes until that date.
II. § 2(1) of the Asylum Seekers’ Benefits Act (former version) is so closely related to the referred provisions that it must be included in the constitutional review to the extent that it is decisive for the initial proceedings. As the plaintiffs in the initial proceedings had temporary suspensions of deportation pursuant to § 60a of the Residence Act (Aufenthaltsgesetz – AufenthG) 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 (cf. § 1(1) no. 4 of the Asylum Seekers’ Benefits Act) was constitutionally permissible. However, within the category of persons with temporary suspension of deportation, persons with temporary suspension of deportation for training purposes – a special sub-category of temporary suspension – are not part of the constitutional review, as this issue is not decisive for the initial proceedings.
III. § 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 ensuring an existential minimum in accordance with human dignity.
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 the levels of basic welfare benefits and analogous benefits. However, it is not ascertainable that the level of basic welfare benefits could in no way guarantee physical existence, the possibility to cultivate interpersonal relationships and a minimum degree of participation of social, cultural and political life.
2. The method of calculating the amount of basic welfare benefits using data from the 2008 sample survey is also not objectionable under constitutional law.
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 benefits pursuant to the Twelfth Book of the Code of Social Law, rather than conducting a separate survey specific to the reference group of recipients of benefits pursuant to the Asylum Seekers’ Benefits Act. 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 ensuring an existential minimum in accordance with human dignity. 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 ensuring an existential minimum for all persons.
b) Furthermore, there are no constitutional concerns regarding the fact that the legislator did not include in the calculation of benefits, particularly as of 17 March 2016, certain needs from Sections 9 and 10 of the sample survey on account of the specific circumstances of persons eligible for benefits pursuant to the Asylum Seekers’ Benefits Act.
aa) To the extent that the legislator takes in account the specific nature of certain needs when determining the existential minimum in accordance with human dignity, it is not permitted to make sweeping differentiations in the statutory design of basic welfare benefits based on residence status. 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. Legislative assessments can also be based on the assumption of a short duration of residency based on one’s residence status, if such assessments can be sufficiently justified.
It is sufficiently comprehensible that, for the calculation of basic welfare benefits, the legislator adopted a lower level of social and cultural needs compared to those under sample survey sections 9 and 10 based on the assumption that the outlook for long-term residency during the first 15 months of residency is uncertain. Even considering the specific categories of expenditure, the decision not to take such needs into account does not raise constitutional concerns in light of the reason for the exclusion.
bb) In § 2(1) of the Asylum Seekers’ Benefits Act (former version), the legislator determined that the period of an uncertain outlook for long-term residency was 15 months. To the extent that § 2(1) of the Asylum Seekers’ Benefits Act (former version) is subject to review in these proceedings, this does not raise any constitutional concerns.
15 months is within the time period recognised as a short stay. Furthermore, the legislator’s assumption that persons with temporary suspension of deportation (excluding those for training purposes) do not have certainty in regard to long-term residency rests on sound reasoning. A temporary suspension of deportation is not a legal institution generally directed at continued residency. 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.
The legislator was also not required to make a finer distinction and – at least for certain groups of persons with temporary suspension from deportation – provide for analogous benefits at an earlier date. It was permitted to engage in typification with regard to persons with temporary suspension from deportation for the first 15 months of residence.
c) The legislator also otherwise remained within the boundaries of its leeway as far as the method of calculating the level of benefits is concerned. The level of benefits calculated by the legislator for need levels 1 and 5 based on the special evaluation of the 2008 sample survey also rests on sound mathematical reasoning.
3. 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. By that time, it was nearly two years since autumn 2016, when the special evaluation of the 2013 sample survey was first available.
When designing the framework for benefits to ensure the existential minimum in accordance with human dignity, the legislator must use realistic and up-to-date representations of the corresponding needs of benefit recipients. The considerable leeway granted to the legislator in calculating basic welfare benefits makes it necessary to ensure that the basis of the calculation stays current, so that the existential minimum is not endangered by changes occurring over time.
It is true that the parliamentary legislator is accorded a certain amount of time to react to such changes, in light of the rules for the parliamentary proceedings 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 2013 sample survey exceeds the limits of what is tenable under constitutional law. The failure to enact draft legislation due to the principle of parliamentary discontinuity also does not excuse this delay.
4. As a result of the failure to update the benefit provisions on the basis of the 2013 sample survey, it is no longer possible to conclude that the goal of ensuring 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, it would have resulted in an increase in monthly benefits of approximately EUR 15 for need level 1 and EUR 30 for need level 5 respectively. 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.
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.
IV. In the period subject to constitutional review, 1 September 2018 to 20 August 2019, § 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 declared incompatible with the Constitution, but not void. A declaration of voidness would lead to a state of affairs that would be even farther from the constitutional order than the current state of affairs.
The declaration of incompatibility is combined with an order for the continued applicability of the provisions. 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 period of time prior to the decision by the Federal Constitutional Court. 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 time subject to constitutional review.