Submissions by the Higher Social Court of North Rhine-Westphalia to the German Constitutional Court on the right to a minimum existence; Asylum seekers; Social Benefits; Asylum Seekers; Fundamental Right to a Dignified Minimum Standard of Living.
The Higher Social Court of North Rhine-Westphalia asked the German Federal Constitutional Court to decide whether the cash benefits for asylum seekers provided under section 3 paragraph 2 of the Asylum Seekers Benefit Act comply with the constitutional right to a minimum standard of living.
The Constitutional Court ruled that the relevant provisions were incompatible with the fundamental right to a minimum standard of living, guaranteed by Article 1 sec. 1 (right to human dignity) in conjunction with Article 20 sec. 1 (social state principle) of the Basic Law. Reaffirming that this right encompasses “both the physical existence of an individual and the possibility to maintain interpersonal relationships and a minimum of participation in social, cultural and political life”, the Court found that the amounts granted to asylum seekers under the law – in some cases as little as 225 Euros per month for an adult and 20 Euros per month for a child up to 6 years – were evidently insufficient to guarantee a dignified minimum existence. This finding was based on the fact that the cash benefits according to the law had not been increased since 1993, even though the cost of living in Germany went up by at least 30% in that time. The Court ruled that benefits ‘must be ascertained realistically’ and that ‘to specify the fundamental rights claim, it must be possible to calculate the amounts in a transparent and adequate way’, according to the actual and current needs. As a result, the relevant provisions of the Asylum Seekers Benefit Act were declared unconstitutional.
The Court ordered the legislature to enact new provisions which serve to secure a dignified minimum standard of living. In order to secure basic benefits for recipients until the enactment of new provisions, the Court also put into place a transitional arrangement providing for considerably higher cash benefits.
Keywords: Judgment of the Federal Constitutional Court in the proceeding 1 BvL 10/10
The Court has not set a deadline for the enactment of new provisions, but rather demanded that the legislature should do so “immediately”. Basic benefits under the Asylum Seekers Benefits Act must now be calculated based on general provisions applicable to all persons who receive social benefits (Second and Twelfth Book of the Code of Social Law). The transitional agreement applies retroactively from 1 January 2011 onwards, until the legislature has complied with its obligations.
This order is binding for all public authorities. If public authorities do not abide by this order, individuals whose rights are violated are entitled to seek judicial remedies.
The case is significant for a number of reasons. First, the Court applies the methodological framework developed in its Hartz IV decision and, for the first time, declares that social benefits provided for under the law do not live up to the constitutionally protected standard. Second, the Court explicitly places the right to a dignified minimum existence in the context of international human rights law by pointing to the interpretative weight of the International Covenant on Economic, Social and Cultural Rights. Third, it emphasizes that the right to a dignified minimum standard of living applies to all persons residing in Germany. “Migration-policy considerations of keeping benefits paid to asylum seekers and refugees low to avoid incentives for migration […] may generally not justify any reduction of benefits below the physical and socio-cultural existential minimum. Human dignity may not be relativised by migration-policy considerations.” Finally, the decision stipulates that “adequate benefits have to be ascertained in light of circumstances in Germany, the country in which this existential minimum must be guaranteed. The Basic Law does not permit that needs for a dignified life be assessed at a lower level by referring to the existence levels in the country of origin or in other countries. Nor does the Constitution permit one to differentiate among recipients of basic social benefits in accordance to their residence status; the legislature must always take as its guideline concrete needs to secure a person’s existence.”(Constitutional Court Press Release no. 56/2012 of 18 July 2012).
Amnesty International – Germany
Evangelical Church in Germany
Catholic Church
German Institute for Human Rights
Pro Asyl
UNHCR
Flüchtlingsrat Berlin
See Press Release and Decision below:
