Reduced ‘special rate’ of benefits for single adult asylum seekers living in collective accommodation violates the fundamental right to an existential minimum in accordance[...]

Reduced 'special rate' of benefits for single adult asylum seekers living in collective accommodation violates the fundamental right to an existential minimum in accordance with human dignity

Press Release No. 96/2022 of 24 November 2022

Order of 19 October 2022
1 BvL 3/21

Reduced BenefitLevel in Asylum Seekers´Benefits Act

In an order published today, the First Senate of the Federal Constitutional Court held that § 2(1) fourth sentence no. 1 of the Asylum Seekers' Benefit Act (Asylbewerberleistungsgesetz - AsylbLG) is incompatible with the fundamental right to an existential minimum in accordance with human dignity deriving from Art. 1(1) in conjunction with Art. 20(1) of the Basic Law (Grundgesetz - GG).

The decision concerns basic welfare benefits for adult asylum seekers who are single and living in so-called collective accommodation, and who have been legally residing in Germany for at least 18 months. § 2(1) fourth sentence no. 1 AsylbLG, which took effect 1 September 2019, established a reduced 'special rate' of benefits for these individuals. In the new Standard Need Level 2, the legislator assessed a 10% reduction in the need for basic welfare benefits as compared to the previously applicable Standard Need Level 1. This is incompatible with the fundamental right to an existential minimum in accordance with human dignity.

It is not ascertainable that the living situation in collective accommodation does in fact result in or could potentially result in an equivalent reduction in expenses on a regular basis due to the sharing of resources. When determining the minimum level of state benefits, the legislator may take into account the availability of reasonable opportunities for benefit recipients to reduce their expenses, thereby giving effect to the principle that state funded welfare benefits are a means of last resort (Nachranggrundsatz). However, there are no sufficient factual indications to support the assumption that the conditions needed to save on expenses that would justify the reduction at issue do actually exist in collective accommodation for asylum seekers.

Facts of the case:

The plaintiff in the initial proceedings is a Sri Lankan national, born in 1982. In 2014, he came to the Federal Republic of Germany and had been receiving benefits at Standard Need Level 1 pursuant to § 2 AsylbLG since 2015. After the denial of his asylum application in 2017, he was under an obligation to leave the country, enforceable by final deportation order, but had obtained a temporary suspension permitting him to remain in Germany. From November 2019 to February 2020, he was provided housing in a collective accommodation facility. He shared a bedroom with one other person and a kitchen and bathroom with several other persons, none of whom was related to one another. The other residents received basic welfare benefits in varying degrees or an income through paid employment, and were therefore not dependent on benefits.

In November 2019, the local authority assigned the plaintiff benefits at the lower amount of Standard Need Level 2 pursuant to § 2 AsylbLG, with further reductions for cost of utilities and furnishings and appliances. The plaintiff lodged an objection in administrative proceedings, but was unsuccessful. He then applied to the Social Court seeking a higher level of benefits based on the standard rate of Standard Need Level 1. On 13 April 2021, the Social Court stayed the proceedings and referred the question to the Federal Constitutional Court of whether § 2(1) fourth sentence no. 1 AsylbLG is compatible with the Basic Law insofar as the provision pertains to benefits for single adults.

Key considerations of the Senate:

§ 2(1) fourth sentence no. 1 AsylbLG does not meet constitutional requirements. The application of the lower Standard Need Level 2 to single adults living in collective accommodation violates the fundamental right to an existential minimum in accordance with human dignity deriving from Art. 1(1) in conjunction with Art. 20(1) GG.

I. When a person lacks the means necessary to live in accordance with human dignity, and when that person cannot obtain such means through paid employment, use of their own assets, or payments by others, the state has a duty, in the context of its mandate to protect human dignity and to give shape to the social state, to provide the means to ensure that the existential minimum in accordance with human dignity is upheld. This objective legal duty deriving from Art. 1(1) GG gives rise to a corresponding individual right to benefits for those in need, as the fundamental right of human dignity applies to each individual, and because an existence in accordance with human dignity in such cases of need can only be secured through substantive support.

1. Under constitutional law, social welfare benefits must be assessed realistically and on an ongoing basis to determine whether they are in fact sufficient to provide for an existential minimum in accordance with human dignity. However, the corresponding right to benefits extends only to those means that are absolutely necessary for maintaining a life in accordance with human dignity. But basic needs must always be met.

2. The legislator is afforded a certain latitude in setting out the type and amount of benefits to be provided, to ensure an existential minimum in accordance with human dignity. This assessment must be based on the actual needs of those in need.

3. The latitude afforded to the legislator is subject to constitutional review, albeit one exercised with restraint. It is not for the Federal Constitutional Court to decide the amount of benefits required to ensure an existential minimum; nor does the Court assess whether the legislator has chosen the most equitable, appropriate or reasonable solution in the performance of its duties.

First, a substantive review of the amount of benefits provided to secure a minimum existence in accordance with human dignity is therefore restricted to whether the benefits determined by the legislator are evidently insufficient. That is only the case when it is apparent that the total amount of benefits can in no way meet basic physical, social and cultural needs in order to secure an existence for those in need in Germany that can be regarded as in accordance with human dignity. Next, in a constitutional review of benefits determined by the legislator, the Court assesses whether the benefits, including any differentiations, are based on and can be explained by comprehensible, objective and overall sound reasons. This requires that any determination of benefits by the legislator must be justifiable based on current and reliable data as well as coherent calculation methods in order to satisfy the requirements of Art. 1(1) in conjunction with Art. 20(1) GG.

4. The Basic Law does not preclude the legislator from making the right to basic welfare benefits ensuring an existential minimum in accordance with human dignity subject to the principle of last resort (Nachranggrundsatz), according to which benefits are only provided by the state if persons cannot support themselves by their own means. In this respect, the legislator may pursue the idea of subsidiarity, according to which available possibilities to provide for oneself take precedence over state subsidies. Therefore, the Basic Law does not preclude legislation that requires benefit recipients to actively participate in overcoming their own need or preventing such need in the first place.

II. § 2(1) fourth sentence no. 1 AsylbLG does not meet these constitutional requirements, insofar as it attributes a reduced benefit rate to single adult asylum seekers living in collective accommodation.

The assessment that informs § 2(1) fourth sentence no. 1 AsylbLG, which defines the benefits necessary to secure a minimum existence in accordance with human dignity at the level of Standard Need Level 2 is currently not tenable.

1. One cannot simply assume that single adults living in collective accommodation do in fact regularly have a lower level of need than those who live in their own apartment, by arguing that they would typically share resources with the other persons living there and thereby significantly save on expenses that are relevant to the need determined by the legislator. There are no sound findings supporting this assumption. The legislator did not collect any data nor did it submit any findings in the present proceedings. The consideration that savings on food expenses could be realised, in that groceries or other basic items needed for cooking could be bought in bulk and used collectively, is not supported by facts. Instead, it is merely assumed, without any factual evidence to support such a premise. Also, the general assumption that people living in collective accommodation would share resources, similar to couples or families, lacks sound foundations.

2. Generally, the legislator is permitted to make the provision of basic welfare benefits contingent on an obligation to take all suitable, necessary and reasonable opportunities that are available to overcome one's own need or to preventing such need. But this must indeed be actually feasible and reasonably capable of being achieved. That is only the case when it is sufficiently certain that the conditions necessary to fulfil this obligation and thereby save on expenses in the assumed amount actually exist in collective accommodation.There are no facts indicating that this is the case.

a) The obligation underlying § 2(1) fourth sentence no. 1 AsylbLG, according to which basic welfare benefits are reduced due to the sharing of resources resulting in savings on relevant expenses in collective accommodation, serves a legitimate aim of giving effect to the principle of last resort and limiting benefits to those persons living in Germany who are in fact in need. The law is also still within the scope of what can be regarded as suitable and necessary for achieving this aim.

b) However, invoking this obligation to justify a blanket reduction of benefits by 10% under Standard Need Level 2 is not proportionate in the strict sense. Based on this law, the basic needs of recipients are not currently being met. In this regard, the reduction of benefits violates the duty to secure an existential minimum in accordance with human dignity as is required by Art. 1(1) in conjunction with Art. 20(1) GG, when the actual need for such benefits has not in fact been reduced or cannot be reduced to that extent. If that happens, the law creates an insufficient level of benefits that is incompatible with the level of protection required by the Basic Law.

aa) This notwithstanding, the law does not amount to a violation of constitutional law because of insufficient state action in cases where the actual need is in fact met. Therefore, the law on welfare benefits may require authorities to apply a lower basic rate in individual cases. With this, the legislator gives effect to the principle of last resort.

bb) An insufficient level of protection would also not occur if it could realistically be expected of single adults living together in collective accommodation to reduce their financial need by 10% below the rate of benefits in Standard Need Level 1. But this is not the case. The blanket reduction is not supported by sufficiently sound findings that persons living in collective accommodation can actually reduce their need by this amount themselves. Here, the assumption that the affected persons are "bound together as a community" that will form a "collective budget" is not sufficient. Also, the assumption that the requirement of sharing resources can in fact be fulfilled and that reduced expenses in the relevant amount can be achieved is also not supported by empirical findings. Even three years after the provision at issue first came into force, there are still no studies on this point.

c) § 27(4) first sentence no. 2 of the Twelfth Book of the Code of Social Law (Zwölftes Buch Sozialgesetzbuch - SGB XII), which provides for a higher basic rate of benefits in certain cases, does not make up for the constitutional deficiencies of the challenged provision. The blanket reduction of the standard rate must still be sufficiently supported by sound factual indications - which are lacking here - that in the conditions to save on expenses in the expected amount in collective accommodation do in fact exist in the typical case.

3. The challenged reduced 'special rate' can also not be explained by a necessity to allow for a general reduction in certain needs of persons living in collective accommodation. Moreover, the law as it stands does not prevent authorities from effecting a double deduction based on the same reasoning, by applying the reduced basic rate of benefits in Standard Need Level 2 in combination with a reduced need in the individual case under § 27a(4) sentence 1 no. 1 SGB XII.

III. As an exception to the rule, the unconstitutionality of § 2(1) fourth sentence no. 1 AsylbLG does not result in the provision being declared void. It is necessary for the Court to order the continued application of the provision at issue, as the constitutionally guaranteed existential minimum would not be ensured at all otherwise. All benefit assessments that are not yet final as of the date of publication of this decision and that concern benefits as of 1 September 2019 - the date the provision at issue came into force - must be calculated based on the standard of Standard Need Level 1. Assessments that are already final remain unaffected to the extent they apply to benefits for periods prior to the publication of this decision.

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