Forms and levels of material reception conditions

Assistance under the Asylum Seekers’ Benefits Act generally consists of ‘basic benefits’ (Grundleistungen). These are meant to cover the costs for food, accommodation, heating, clothing, personal hygiene and consumer goods for the household (notwendiger Bedarf), as well as the personal needs of everyday life, such as public transport and mobile phones (notwendiger persönlicher Bedarf)[1] – the latter is often referred to as ‘pocket money’. In addition, the necessary ‘benefits in case of illness, pregnancy and birth’ have to be provided.[2] ‘Other benefits’ can be granted in individual cases (upon application) if they are necessary to safeguard the means of existence or the state of health.[3]

In 2019, the amount of benefits under the Asylum Seekers’ Benefits Act was adjusted for the first time since March 2016, even though the law foresees an annual adjustment of rates.[4]This resulted in a reduction of benefits for many asylum seekers, inter alia by excluding certain costs from the basic benefits which were considered to be unnecessary for asylum seekers compared to recipients of regular social benefits (e.g. expenditures for leisure, entertainment, culture). Additionally, asylum seekers who live in apartments on their own no longer receive an automatic reimbursement of costs related to electricity. Instead, they need to apply for such reimbursement individually. Benefits were also reduced for adults under 25 who live with their parents.[5]

The annual adjustment of the rates for social benefits for asylum seekers are linked to the annual rates for social benefits for German nationals.[6] As the social benefits legal framework changes drastically from the 1st January 2023 on, so does the calculation basis for social benefits for asylum seekers.[7] Prior to the legal reforms the annual adjustment was mainly based on the development of prices and wages.[8] Due to the dynamic development of prices for food and energy as result from the war in Ukraine,[9] the German government decided an additional increase on top of the compensation for the development of prices and wages.[10] The German government further argued that the annual adjustment of social benefits for German nationals shall be adhered to more strictly.[11] Whether this will be the case also for social benefits for asylum seekers remains unclear in the reasoning to the legal reforms. Whereas civil society organisations generally support the increase of social benefits, they criticise that the legal reforms did not change the general distinction in the calculation of ‘basic needs’ between asylum seekers and German nationals.[12] In an extensive study it is argued that the minimum subsistence level should not differ between German nationals and asylum seekers since the overall difference and exclusion of certain costs in 2019 cannot objectively be justified by different needs.[13]

One of the most controversial changes introduced in 2019 was the adjustment of benefits for single adults required to stay in an accommodation centres. Whereas they used to be treated in the same manner as single adults living outside of these centres, they now only receive an allowance that amounts to benefits that one receives when living together with another adult, spouse or partner.[14] As a result, their monthly allowance was increased by €1 only. To justify this change, the government argued that asylum seekers living in an accommodation centre can be expected to run a common household similarly to adult partners, which was heavily criticised by different actors. Several Social Courts have found this change of practice likely to be unconstitutional. In summary proceedings they ordered the authorities to temporarily pay the same benefits as received by single adults outside of accommodation centres.[15] In April 2021, the Social Court of Düsseldorf referred the question to the Federal Constitutional Court. .[16] In October 2022 the Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) agreed with the earlier decisions of the Social Courts. The Federal Constitutional Court ruled that there is no evidence which proves that single adults in accommodation centres economize together.[17] Consequently, they cannot be compared to people who share a household and should therefore be treated equally to single adults staying outside of accommodation centres. Since the judgement applies retrospectively from the 1st September 2019, civil society organisations urged everyone formerly affected by the distinction to request a review of the amount of benefits at the local immigration authorities.[18] However, the case which was decided by the Federal Constitutional Court was about a man who stayed in an accommodation centre longer than 18 months and therefore received social benefits under Section 2 Asylum Seekers Benefits Act.

The Court left it open whether the ruling should also be applied to asylum seekers who stay in accommodation centres for less than 18 months under Section 3a Asylum Seekers Benefits Act. In North Rhine-Westphalia, Hesse and Bavaria, the state’s governments decided to apply the court ruling to everyone staying in accommodation centres, irrespective of the length of stay.[19] Also the Federal Ministry for Labour and Social Affairs responded to a parliamentary request by The Left that the states should award the regular amount of benefits to all single adults.[20] Despite the instructions by the Federal Ministry for Labour and Social Affairs, in the calculation of the benefits for 2023 the group of ‘single adults staying in accommodation centres’ was not erased (see below).

Authorities at the regional and local level have important discretionary powers when deciding in what form basic benefits should be provided. Therefore, the provision of benefits in cash depends on local conditions and policies. According to the law, asylum seekers who are accommodated in reception centres shall receive non-cash benefits only. This includes ‘pocket money’ for their personal needs ‘as long as this is possible within the acceptable administrative burden’.[21] In practice, however, they will often receive the pocket money in cash. For asylum seekers in other (decentralised) collective accommodation centres, non-cash benefits ‘can’ be provided ‘if this is necessary under the circumstances’.[22] The same applies for asylum seekers living on their own, with the exception that they have to be provided with pocket money in cash. For those living outside of reception centres, the costs for accommodation (rent), heating and household goods have to be provided on top of the above benefits as far as it is ‘necessary and reasonable’.[23]

As of January 2023, the monthly rates are as follows:

Sources: Bekanntmachung über die Höhe der Leistungssätze nach § 3a Absatz 4 des Asylbewerberleistungsgesetzes für die Zeit ab 1. Januar 2023, BGBl. I, Nr. 54, 23.12.2022, 2601, available at: https://bit.ly/3XKNSUP; and Federal Employment Office, Erhöhte Regelsätze, press release Nr. 60, 28.12.2022, available at: http://bit.ly/3iXn98T.

As indicated in the table above, rates under the Asylum Seekers’ Benefits Act amount to a level of about 82% of regular social benefits – and less than 75% for single adults living in accommodation centres.

Before the amendments were introduced in 2019, asylum seekers were usually granted access to regular social benefits after 15 months of benefits received under the Asylum Seekers’ Benefits Act. This meant that, after this period, higher benefits were paid and certain restrictions of the Asylum Seekers’ Benefits Act no longer applied, in particular the limited access to health care. However, the waiting period to access regular social benefits was extended by an additional 3 months in 2019.[24] Consequently, asylum seekers now have to wait up to 18 months before they are entitled to regular social benefits.

[1] Section 3(1) Asylum Seekers’ Benefits Act.

[2] Section 4 Asylum Seekers’ Benefits Act; for access to health care see below.

[3] Section 6 Asylum Seekers’ Benefits Act.

[4] Section 3a (4) Asylum Seeker’s Benefits Act.

[5] Sections 3a(1)(3)(a) and 3a(2)(3)(a) Asylum Seekers’ Benefits Act.

[6] Section 3a (4) Asylum Seekers Benefits Act.

[7] Federal Minstry for Labour and Social Affairs, Information zu AsylblG-Leistungsgrundsätzen für die Zeit ab Januar 2023, 10.10.2022, available in German at: http://bit.ly/3ZPQL8P.

[8] Section 28a Social Code (version prior 01.01.2023).

[9] Federal Government, Gesetzesentwurf der Bundesregierung `Entwurf eines Zwölften Gesetzes zur Änderung des Zweiten Gesetzbuches und anderer Gesetze, Einführung eines Bürgergeldes (Bürgergeld-Gesetz)‘, 10.10.2022, available in German at: https://bit.ly/3GXbHSD.

[10] Section 134 Social Code XII

[11] Federal Government, Gesetzesentwurf der Bundesregierung `Entwurf eines Zwölften Gesetzes zur Änderung des Zweiten Gesetzbuches und anderer Gesetze, Einführung eines Bürgergeldes (Bürgergeld-Gesetz)‘, 10.10.2022, available in German at: https://bit.ly/3GXbHSD.

[12] PROASYL, Das Asylbewerberleistungsgesetz und das Existenzminimum. Eine Analyse der Regelsätze, 10.11.2022, available in German at: http://bit.ly/3ksiiwJ.

[13] PROASYL, Das Asylbewerberleistungsgesetz und das Existenzminimum. Eine Analyse der Regelsätze, 10.11.2022, available in German at: http://bit.ly/3ksiiwJ.

[14] Sections 3a(1)(2)(b) and 3a(2)(2)(b) Asylum Seekers’ Benefits Act.

[15] Social Court of Frankfurt, Decision S 30 AY 26/19 ER, 14 January 2020; Social Court of Landshut, Decision S 11 AY 3/20 ER, 28 January 2020; Social Court of Freiburg, Decision S 5 AY 5235/19 ER, 20 January 2020; Social court of Hannover, Decision S 53 AY 107/19 ER, 20 December 2019.

[16] See Informationsverbund Asyl & Migration, ‘Rechtsprechungsübersicht: Niedrigere Leistungen für Alleinstehende in Sammelunterkünften verfassungswidrig?’, available in German at https://bit.ly/3GFyvoJ.

[17] Federal Constitutional Court, Decision 1 BvL 3/21, 19. October 2022, para 70f.

[18] Informationsverbund Asyl & Migration, Arbeitshilfe und Musterantrag der RLC Leipzig zur Überprüfung von AsylbLG-Leistungen, 10.12.2022, available in German at: http://bit.ly/3iXINd7.

[19] Tagesspiegel, Leistungskürzungen waren verfassungswidrig – Mehr alleinstehende in Flüchtlingsheimen bekommen wieder höhere Beträge, 11.12.2022, available in German at: http://bit.ly/3XMF3dd.

[20] Deutscher Bundestag, Plenarprotokoll 20. Wahlperiode, 72. Sitzung, response to question 24 of Clara Bünger (The Left), 30.11.2022, available in German at: https://bit.ly/3Hob6Lf.

[21] Section 3(2) Asylum Seekers’ Benefits Act.

[22]  Section 3(3) Asylum Seekers’ Benefits Act.

[23] Section 3(3) 3^rd Sentence Asylum Seekers’ Benefits Act.

[24] Section 2(1) Asylum Seekers’ Benefits Act.