Reduction of benefits
Since 2016, the grounds for reduction of material reception conditions expressly include asylum seekers. The amendments introduced to the Asylum Seekers’ Benefits Act in 2019 further extended the possibilities to reduce benefits. As listed in Section 1a of the Asylum Seekers’ Benefits Act, material reception conditions can now be reduced for the following categories of persons:
| Reduction of benefits in accordance with Section 1a Asylum Seekers’ Benefits Act | ||
| Paragraph | Analysis | |
| 1 | Beneficiaries of benefits who have been asked to leave Germany before a certain date and have not left the country, although this would have been feasible | This provision only applies to foreign nationals whose obligation to leave the territory is enforceable (vollziehbar ausreisepflichtig) – meaning that it does generally not affect asylum seekers as long as their asylum procedure is ongoing. |
| 2 | Beneficiaries of benefits who have entered Germany (solely) for the purpose of receiving benefits
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This provision only applies to persons whose obligation to leave is enforceable (vollziehbar ausreisepflichtig) or who are in possession of a ‘tolerated stay’ (Duldung). Thus, it also does not affect asylum seekers a long as their asylum procedure is ongoing. Even after a negative decision, this provision does not generally apply to asylum seekers, as it can hardly be deduced that their only motivation for entering Germany was to claim benefits.
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| 3 | Beneficiaries of benefits for whom removal procedures cannot be carried out due to reasons for which they are responsible
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This provision only applies to foreign nationals whose obligation to leave is enforceable (vollziehbar ausreisepflichtig) or whose stay is tolerated (Duldung). Asylum seekers can be affected after the asylum procedure, however, e.g., in cases where an application has been rejected as ‘inadmissible’ following a Dublin procedure. Benefits for family members of beneficiaries must only be reduced if the family member him- or herself bears responsibility.
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| 4(1) | Beneficiaries of benefits who have been allocated to another European state within the framework of a European distribution mechanism
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This provision does not apply for asylum seekers in the context of Dublin procedures, but refers to a European distribution mechanism which could be initiated on an ad hoc basis. |
| 4(2) | Beneficiaries of benefits who have been granted international protection in an EU Member State or Dublin State or have acquired a right of residence for other reasons in such a state.
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This provision only applies during the asylum procedure. Upon termination of the procedure, this category of person is totally excluded from benefits in certain situations (see below). Some Social Courts have ruled in summary proceedings that this provision is not applicable if a return to the Member State is not possible or reasonable, e.g., for those who were granted international protection in Greece.[1]
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| 5 | Beneficiaries of benefits who have failed to cooperate with the authorities during a asylum procedure | This paragraph refers to a number of other provisions in which the following acts are defined as ‘failure to cooperate’;
v Failure to apply for asylum ‘immediately’ after entry into the territory (Section 13 (3) Asylum Act); v Failure to present or hand over a passport or passport substitute to the authorities (Section 15 (2) no. 4 Asylum Act); v Failure to present or hand over other documents necessary for the clarification of their identity (Section 15 (2) no. 5 Asylum Act); v Failure to hand over data carriers such as smartphones that could be important for establishing identity and nationality (Section 15 (2) No. 6 Asylum Act); v Failure to undergo the required identification measures (especially taking of fingerprints, Section 15 (2) no. 7 Asylum Act); v Failure to keep the appointment for the formal registration of their application at the BAMF; or v Refusal to provide information about their identity or nationality in the course of the asylum procedure (Section 30 (3) no. 2 Asylum Act). |
| 6 | Beneficiaries in the asylum procedure who violate their obligation to provide information about existing assets and fail to notify relevant changes immediately | |
| 7 | Beneficiaries of benefits whose asylum application was rejected as ‘inadmissible’ on the grounds that another European country was responsible for the examination in accordance with the Dublin III Regulation
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This provision was introduced by the 2019 amendments. This category of persons will now receive reduced benefits following a negative decision from the BAMF, even if an appeal against the latter is still pending before the court. However, this does not apply (retroactively) if the court grants suspensive effect. Some Social Courts have questioned the constitutionality of this provision in summary proceedings as the reduction of benefits in such cases is not contingent on a wrongdoing on part of the beneficiary affected.[2] Also scholars recognize an incompatibility with constitutional law.[3] However, the Courts do not take a uniform approach, thus a clear tendency or ruling is not evident.[4]
In most cases, this provision has a relatively limited scope in practice: it only applies during the time between an inadmissibility decision in accordance with the Dublin III Regulation and the issuance of a Duldung (to which the affected persons will generally be entitled until the transfer to another European country takes place). |
On top of Section 1(a), the Asylum Seekers’ Benefits Act provides for the reduction of benefits in several other provisions, inter alia for asylum seekers who failed to cooperate with the authorities and therefore are responsible for the fact that an ‘arrival certificate’ could not be issued.[5]
This list of reduction grounds is exhaustive, meaning that benefits cannot be reduced for other reasons. If one of them is met, the law provides that asylum seekers should only be provided with accommodation, food and basic necessities, primarily as non-cash benefits. It is only ‘in special circumstances and individual cases’ that further benefits can be granted on a discretionary basis.[6] It has been estimated that this may result in a reduction of almost 50% of the benefits in many cases.[7] Benefits covering the personal needs of everyday life (‘pocket money’) can be withdrawn entirely. Furthermore, asylum seekers are not entitled to benefits covering the costs of clothing and for ‘durable and non-durable consumer goods for the household’. Clothes and household goods can only be provided ‘in kind’ and on an ad hoc basis, if necessary, but these costs are not included in the monthly benefits for the persons concerned.[8]
The authorities are required to limit the reduction of benefits to a 6 months period. After this time, the decision to reduce benefits has to be reviewed and can only be extended if the ground for reduction is still applicable.[9] Even before the end of the 6-months time limit, benefits have to be restored to the standard level if the legal prerequisites for the reduction cease to apply. If benefits are reduced following a rejection of an application, they can be restored to the standard level at a later stage, e.g., if a subsequent application leads to the opening of a new asylum procedure, or if it turns out that a removal is not possible for reasons which cannot be held against the concerned person.
The decision to reduce or withdraw (see following section, Withdrawal of benefits) benefits can be appealed. In light of a decision of the Federal Constitutional Court of July 2012 on the Asylum Seekers’ Benefits Act,[10] there have been several court decisions concluding that any reduction of benefits would be unconstitutional and therefore inadmissible, but these rulings do not represent the general opinion.[11] The debate was revived in November 2019 by another decision of the Federal Constitutional Court. In this decision, the Court did not comment on the Asylum Seekers’ Benefits Act, but made some important observations on the legality of cuts in unemployment benefits and in the social support system in general.[12] The court argued that temporary sanctions, even to the point of a complete withdrawal of benefits, could be lawful if an unemployed person did not undertake reasonable efforts to overcome the need for support. However, given the extraordinary burden resulting from such sanctions, the court also highlighted that legal provisions which reduce reductions of benefits have to be based on an analysis of their necessity, suitability and reasonableness. Persons affected by cuts should be able to regain standard benefits once they comply with reasonable obligations. Moreover, individual circumstances must be taken into consideration. Sanctions which are imposed for a fixed period of time and regardless of individual circumstances have to be considered as violating the constitution, according to the Constitutional Court.
As a result of this decision, the legality of the Asylum Seekers’ Benefits Act has been questioned again.[13] In several decisions, the Regional Social Court of Lower Saxony-Bremen has ruled that it is ‘fundamentally debatable’ whether Section 1a of the Asylum Seekers Benefits Act on the reduction of benefits for certain groups is in line with the constitution’.[14] Other courts have also questioned the legality of certain aspects of the Asylum Seekers’ Benefits Act.[15] However, these questions have so far only been raised in provisional proceedings in which the claimants had asked for interim measures against certain sanctions. Therefore, these legal issues have only been raised but have not been decided upon by the courts. In any case, issues of constitutionality are a matter for the Federal Constitutional Court and so it has to be expected that it will take several years for suitable cases to be discussed at this level. A constitutional complaint about the reduction of benefits under the Asylum Seekers’ Benefits Act before the June 2019 amendment was rejected by the Federal Constitutional Court on the basis that in the Court considered the matter of sanctions has already sufficiently decided by prior Court rulings and that in the individual case there was no breach of the Constitution. [16] In the decision of the Federal Constitutional Court of October 2022 (discussed above) the court maintained its earlier rulings, that benefits may be made conditional to obligations to cooperate while emphasising that any distinction between third country nationals and German citizens must be reasoned.[17] Civil society organisations continue to argue that the Asylum Seekers Benefits Act is discriminatory. The debate arose again especially when in May 2022 the Federal government decided to award regular social benefits to temporary protection seekers (see Annex on Temporary Protection) but not to asylum seekers.[18]
In practice, the reduction of benefits rarely applies to asylum seekers as long as their asylum procedure is ongoing. It may, however, still affect former asylum seekers whose application has been rejected as ‘manifestly unfounded’ or ‘inadmissible’ (e.g., in cases of Dublin decisions or protection in another EU country) and in whose cases no emergency legal protection has been granted. For example, the monthly cash allowance (‘pocket money’) is often withdrawn or substantially reduced if the person has ‘absconded’, i.e. failed to be present at the appointment for pick-up by the police for a ‘Dublin transfer’ (see Dublin: Procedure). In some cases, Social Courts have argued that a reduction of benefits could be unlawful as long as no final decision on a possible removal (or transfer to another Dublin state) has been made at the Administrative Court.[19] However, such decisions are rare because only a few asylum seekers appeal against reductions of benefits upon rejection of their asylum application.
A directive issued in the Federal State of Berlin states that minors are generally exempt from reductions of benefits, because the alleged misconduct cannot be held against them (e.g. if their parents have failed to provide the authorities with information about their identities).[20] However, this policy is exceptional and in other Federal States it seems to be commonplace that reductions of benefits are imposed on families as a whole, including children.[21] The former Federal Government emphasised that children are not generally exempted from sanctions.[22]
Withdrawal of benefits
Historically, the Asylum Seekers’ Benefits Act did not provide for a complete withdrawal of benefits. However, following the 2019 amendments, foreign nationals who have already been granted international protection in another EU Member State are excluded from all benefits under the Asylum Seekers’ Benefits Act.[23] Persons affected by this provision will only receive limited benefits for a maximum of two weeks and only once every two years (Überbrückungsleistungen). Further benefits may only be provided when necessary ‘in exceptional circumstances’ to avoid particular hardship.[24] With Berlin and Rhineland Palatinate, at least two Federal States have limited the scope of application of this rule to make sure the exclusion does not apply to minors and does not undermine the state obligation to provide a minimal subsistence level of benefits.[25]
This exclusion applies to persons whose asylum application in Germany has been finally rejected and whose obligation to leave the territory is enforceable (vollziehbar ausreisepflichtig). This can include persons whose appeal against a return decision is pending, if their request for suspensive effect has been rejected. The provision does not, however, cover situations in which a removal is impossible in fact or in law, e.g., if the Member State that has granted protection is not accepting the returnee or if necessary identity documents are missing. In such cases the person affected has to be issued a Duldung and remains entitled to benefits under the Asylum Seekers’ Benefits Act.
[1] Regional Social Court Nordrhein-Westfalen, Decision L 20 AY 20/20 B ER, 27 March 2020, available in German at: https://bit.ly/3RU19dS; Social Court Berlin, Decision S 50 AY 166/19 ER, 23 December 2019, available in German at: https://bit.ly/3Ronoac.
[2] Social Court Landshut, Decision S 11 AY 79/19 ER, 23 January 2020, available in German at: https://bit.ly/2BQW41q; Social Court Oldenburg, Decision S 25 AY 3/20 ER, 20 February 2020, available in German at: https://bit.ly/3GSEuIi; Social Court Cottbus, Decision S 21 AY 34/19 ER, 28 January 2020, available in German at: https://bit.ly/3NCOIQR.
[3] Stefan Keßler, Anhang 1: Soziale Leistungsrechte von Migranten – Ein Überblick, in: Rainer Hofmann, Ausländerrecht Kommentar, para. 47, 2023.
[4] Social Court Osnabrück, Decision S 44 AY 76/19 ER, 27 January 2020, available in German at: https://bit.ly/3RQkAnG; Social Court Würzburg, Decision S 4 AY 162/22 ER, 11 November 2022.
[5] Section 11(2a) Asylum Seekers’ Benefits Act.
[6] Section 1a(1) Asylum Seekers’ Benefits Act.
[7] Joachim Genge, ‘Das geänderte Asylbeweberleistungsgesetz‘ in Informationsverbund Asyl und Migration (ed), Das Migrationspaket: Beilage zum Asylmagazin 8-9/2019, September 2017, available in German at: https://bit.ly/4aqKg1x, 20.
[8] Regional social administration of the Federal State of Berlin, Directive no. 10/2015, 9 December 2015 (Rundschreiben Soz Nr. 10/2015 über Umsetzung des AsylbLG in der Fassung des Asylverfahrensbeschleunigungsgesetzes), available at: https://bit.ly/4b9xzse.
[9] Section 14(1) and (2) Asylum Seekers’ Benefits Act.
[10] Federal Constitutional Court, Decision 1 BvL 10/10, 1 BvL 2/11, 18 July 2012, available in German at: https://bit.ly/4awXg5U.
[11] Social Court Stade, Decision S 19 AY 19/17 ER, 10 May 2017.
[12] Federal Constitutional Court, Decision 1 BvL 7/16, 5 November 2019, available in German at: https://bit.ly/41tQ7iw.
[13] Claudius Voigt, ‘Gesetzlich minimierte Menschenwürde. Das Sanktions-Urteil des Bundesverfassungsgerichts und seine Auswirkungen auf das AsylbLG’, Asylmagazin 1-2/2020, available in German at: https://bit.ly/4arnFSt, 12-21.
[14] Regional Social Court for the Federal States of Niedersachsen (Lower Saxony) and Bremen, decision of 19 March 2019 – L 8 AY 4/20 B ER, available in German at: http://bit.ly/40wYUyl; decision of 4 December 2019 — L 8 AY 36/I9 B ER, available in German at: http://bit.ly/42DysF3.
[15] Social Court Landshut, S 11 AY 79/19 ER, decision of 23 January 2020, available in German at: https://bit.ly/2BQW41q; Social Court of Berlin, S 50 AY 166/19 ER, 23 December 2019, available in German at: https://bit.ly/2O691an.
[16] Federal Constitutional Court, Case file number 1 BvR 2682/17, Decision of 12 May 2021, available in German at: https://bit.ly/3GItQ5f.
[17] Federal Constitutional Court, Decision 1 BvL 3/21, 19 October 2022, available in German at: https://bit.ly/3z5FN2W, para 65, 75.
[18] Refugee Council Bavaria, ‚Menschenwürdige Sozialleistungen für alle sicherstellen!‘, 7 April 2022, available at: http://bit.ly/3J8X1Tk.
[19] Regional Social Court Berlin-Brandenburg, Decision L 15 AY 12/17 B ER, 19 July 2017; Social Court Lüneburg, Decision S 26 AY 35/17 ER, 12 September 2017.
[20] Regional social administration of the Federal State of Berlin, Directive no. 10/2015, 9 December 2015.
[21] Information provided by GGUA, Münster, 19 June 2018.
[22] Federal Government, Response to information request by The Left, 19/26032, 20 January 2021, available in German at: http://bit.ly/3H0dJBw.
[23] Section 1(4) Asylum Seekers’ Benefits Act.
[24] Section 1(4) Asylum Seekers’ Benefits Act.
[25] Der Paritätische Gesamtverband, ‘Arbeitshilfe zum Thema Flucht und Migration. Soziale Rechte für Flüchtlinge, 3. aktualisierte Auflage, December 2019, available in German at: https://bit.ly/3fDooVv.