Initially, this law was conceived for the social protection of foreign asylum seekers, but over time it came to cover other groups of foreigners without secure residency rights in the Federal Republic of Germany (persons temporarily protected from deportation, divorced foreign wives with uncertain status, etc.). The amount of assistance was set in 1993 and has not been revised since.
This law provides minimal financial assistance, and where possible, replaces it entirely with benefits in kind, such as: provision of dormitory accommodation, meal vouchers, clothing from the Red Cross, medical care (only in emergencies and almost without dental services). Incidentally, only after four years do persons from the above groups have the right to request transfer to the regular system of social assistance. To be sure, within these four years most of the 'insecure' foreigners manage to leave Germany; those who remain become established in the country and no longer need the assistance of the Asylum Seekers Benefits Act.
There is no doubt that this law significantly undercuts the material support of foreigners with weak legal status compared to 'normal' German social assistance. For illustration, the following figures can be compared: 360 German marks in 1993 are roughly equivalent to today's 210 euros for a head of household; 220 German marks for children under 7 years old – 120 euros; 310 German marks for older children – 160 euros, which amounts to about half of the current monthly social benefit for a German recipient. Inflation alone over all these years has eaten up about 30% of the cash benefit.
It is obvious that neither then nor now has the legislator developed a clear formula for calculating benefits under the said law. The rate is based on approximate data, which does not comply with the country's Constitution, which calls for guaranteeing a decent human existence.
Meanwhile, Article 1, paragraph 1 of the Basic Law (Constitution) grants the right to human dignity to all persons living within its jurisdiction, i.e., on the territory of the FRG. Both German citizens and foreigners residing on its territory equally possess this right. The German authorities are obliged to guarantee every person a minimum subsistence level simply by virtue of lawful presence in the country. This right to the minimum covers food, clothing, housing, and participation in the social, cultural, and political life of the country (visiting cinemas, theaters, participation in elections, demonstrations, interest groups). In the FRG, no one shall live in utter poverty, go hungry, freeze on the street or in an apartment without heating, or die without medical care.
The Asylum Seekers Benefits Act is no exception to the constitutional rule. Article 20, paragraph 1 of the Basic Law obliges the legislator to calculate the specific amount of the subsistence minimum based on current prices within real time frames.
The authors and implementers of the Asylum Seekers Benefits Act cannot justify the reduced cash benefit rate by the lower standard of living in the foreigner's country of origin or in poor countries worldwide. The Constitution (Basic Law) of the FRG does not allow differentiating the material equivalent of human dignity according to the hierarchy of the status of a person residing in the FRG: German citizen – foreign spouse of a German citizen – foreigner with secure status – foreigner without secure residency status in the FRG. The Constitution guarantees the right to a decent existence without division into categories. This guarantee takes effect upon a person's arrival in Germany.
A short-term residency status in Germany may justify lesser needs, but the decision on benefits must be based on actual facts. The social welfare office cannot rely on the short-term nature of stay in Germany to justify reduced payments if the actual residence in the country lasts longer than expected and can no longer be considered short-term. Political reasons for lowering the amount of social assistance, so as not to incentivize foreigners to seek asylum in Germany, cannot justify the deliberate creation of conditions of an undignified existence.
The striking discrepancy between the amount of Hartz-IV benefits and the assistance under the Asylum Seekers Benefits Act was also noted by the judges of the Federal Constitutional Court. Therefore, on July 18, 2012, the High Court declared the benefit amount to be incompatible with the German Constitution and instructed the government to urgently update the Asylum Seekers Benefits Act. The benefit amount may be increased retroactively from January 1, 2011.
In July 2012, the First Senate of the Federal Constitutional Court declared the basic cash benefit amount of the Asylum Seekers Benefits Act to be incompatible with the constitutional guarantees of the subsistence minimum under Article 1, paragraph 1 in conjunction with Article 20, paragraph 1 of the Basic Law (Constitution) of the FRG. The cash benefit amount was officially recognized as obviously too low, because, as mentioned, despite a substantial increase in prices, it had not changed since 1993.
The benefit amount was challenged in German courts by the affected foreigners. The State Social Court of North Rhine-Westphalia considered the benefit rate of the Asylum Seekers Benefits Act too low and, due to the fundamental nature of the issue, referred the case to the Federal Constitutional Court. The High Court found no reasons justifying the denial of respect for human dignity to a foreigner with insecure status. The state is obliged to guarantee a subsistence minimum to all persons legally residing on its territory.
The Federal Administrative Court took into account the importance and urgency of guaranteed minimum support for affected persons. Therefore, pending the development of new regulations, the court introduced a transitional rule. Retroactively, from January 1, 2011, persons within the scope of the Asylum Seekers Benefits Act will receive a cash benefit rate equivalent to German social standards (Social Code II and XII). It should be noted that the retroactive payment rule has some limitations. The rate increase applies from the date of the high court's decision until the new regulations come into force.
The court ruling will result in a noticeable increase in the amount of benefits under the Asylum Seekers Benefits Act. To guarantee a decent subsistence minimum, the legislator is obliged to reduce in-kind benefits in favor of cash benefits – thus in 2011, this amounts to 206 euros per month for basic needs and 130 euros per month for other personal expenses.
Thomas PUE,
German lawyer.