Germany: Courts strengthen asylum seekers' social security rights
01 January 2007
On 8 February 2007, the German federal court of appeals for social security cases (Federal Social Court -
Bundessozialgericht) decided that the authorities cannot automatically cut social security provisions for rejected asylum seekers who do not return to their country of origin "voluntarily", but that each individual case had to be examined (file ref. B 9b AY 1/06 R). A Kosovan man and his son, who have been living in Germany as tolerated asylum seekers for 11 years, successfully appealed to the court against a decision by the regional district authority to lower their social security payments to the so-called basic provision of 225 euros, whilst the legal social security minimum is 345 euros per month.
Since 1993, social security for asylum seeker s has fallen under special regulations in a revised Social Security Act for Asylum Seekers (
Asylbewerberleistungsgestetz) which set provisions lower than the minimum standard for a period of three years and lays down they should be paid out "in kind" through the so-called voucher system and food packages. The 1993 Act led to a general impoverishment of refugees and asylum seekers in Germany and asylum support groups have shown in case studies that, apart from social stigmatisation and social exclusion, the "in kind" payments have led to poor quality food provisions and a lack of basic health care, leading to depression and ill-health.
The current legal situation is that after three years of residency, "tolerated" asylum seekers receive additional provisions up to the legal minimum granted to citizens. However, the precondition is that the person has not "unlawfully influenced" the duration of his or her stay. The regional district of Göttingen, responsible for the above-mentioned plaintiffs' social support payments, saw an opportunity to save on its budget by claiming that the failure to leave voluntarily automatically constituted an unlawful extension of stay.
The regional and federal social security courts, however, thought otherwise and the latter decided in last instance that each case would have to be individually assessed to determine why the person in question did not leave and if there were important reasons for staying in Germany, such as the son's long-term attendance of German schools as in the present case. Social security provisions for asylum seekers will also be a bone of contention in the upcoming discussions for a new Aliens Act, as the Conservative party CDU (
Christlich Demokratische Union Deutschlands) is demanding that even after three years, rejected asylum seekers should receive less than the social security minimum deemed necessary for German citizens. The current case has been referred back to the regional social security court to revise its decision.
In an earlier judgement from 11 July 2006, which was only published on 2 November 2006, the Federal Constitutional Court (
Bundesverfassungsgericht) had admonished law makers for treating damage payments as income, thereby violating asylum seekers' basic rights, and ordered a revision of this aspect of the current social security law by 30 June 2007 (file ref. 1 BvR 293/05). The judgement was passed in the successful appeal case of a family from Bosnia-Herzegovina, which had lodged an asylum application in 1995 and received social security provisions under the 1993 Act. In 1997, the wife and a child fell victim to a serious traffic accident and had to undergo long-term rehabilitation for which the family received damages worth 25,000 German Marks. The authorities decided that this money should be used to pay the family's basic social provisions and stopped payment, a regulation that applies only to asylum seekers; German citizens do not have to balance their social security with damage payments. The Federal Constitutional Court decided that this practice constitutes discrimination and is therefore unlawful: it argued that damage payments relate to the personal r