By decision of 26 January 2021, the Lower Saxony-Bremen State Social Court, in the proceedings under file number L 8 AY 21/19, submitted the following question to the Federal Constitutional Court for a decision:
whether Section 3 Paragraph 2 Sentences 1 and 2 of the Asylum Seekers' Benefits Act (AsylbLG) and Section 3 Paragraph 2 Sentence 5 in conjunction with Paragraph 1 Sentences 5 and 8 of the AsylbLG in the version applicable in 2018 of the announcements of October 20, 2015 (Federal Law Gazette I 1722) and March 11, 2016 (Federal Law Gazette I 390) as well as of the Federal Ministry of Labour and Social Affairs of October 26, 2015 (Federal Law Gazette I 1793) are compatible with the Basic Law.
The proceedings there are based on a case from 2018, according to which the plaintiff had not yet resided in the Federal Republic of Germany for more than 15 months (now 18 months) during the disputed benefit period and therefore received so-called basic benefits pursuant to Section 3 of the Asylum Seekers' Benefits Act (AsylbLG).
The court is convinced that even a reduction in benefits linked to the length of stay, through the granting of basic benefits under Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) instead of so-called analogous benefits under Section 2 AsylbLG, is incompatible with the Basic Law. According to the court, the legislature has not sufficiently demonstrated that the length of stay has a concrete impact on subsistence needs and to what extent this could justify the legally stipulated level of cash benefits.
The reasoning provided by the Lower Saxony-Bremen State Social Court in its referral decision of January 26, 2021, regarding the legal situation in 2018, is readily applicable to the current legal situation. Even after the amendment to the law on September 1, 2019, the failure to assess alleged reduced needs due to a stay of less than 36 months remains unchanged. Therefore, the benefits now granted under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) during the first 36 months of residence in Germany may also be unconstitutional.
Update August 6, 2026: The Federal Constitutional Court has ruled: The First Senate declared Section 3 of the Asylum Seekers' Benefits Act (AsylbLG) in its former version for the period September 2018 to August 2019 incompatible with Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1 of the Basic Law (GG) due to the level of basic benefits. The legislature had eliminated expenditure items from the Income and Expenditure Survey (EVS) sections 9 (Leisure/Culture) and 10 (Education) without empirical basis, disregarded potential additional needs (legal advice, communication), and failed to update the basis for calculation in a timely manner despite the availability of the 2013 EVS. The 15-month application period of the basic benefits themselves, as well as Section 2 Paragraph 1 of the AsylbLG concerning those with tolerated stay status, remain unchallenged. Despite the finding of unconstitutionality, the Senate ordered the continued validity of the regulations – no back payments for those affected.
The decision follows a familiar pattern: procedural objections without substantive consequences. For the plaintiffs – a mother with a child living below the subsistence level – their eventual victory has no bearing on the outcome. Unlike in 2012 (BVerfGE 132, 134), when a concrete transitional regulation with reference values was enacted, the Senate remains vague this time, leaving the necessary improvements entirely to the legislature. The numerous statements (German Bar Association, welfare organizations, Institute for Employment Research, UNHCR), which highlighted structural additional needs and an empirically questionable assumption of short-term necessity, have little impact on the standard of review or the legal consequences. The unchallenged 15-month period also stands in striking contrast to the presented findings that many affected individuals actually remain in Germany for years.
Affected group of people:
All recipients of basic benefits according to Sections 3 and 3a of the Asylum Seekers' Benefits Act (all persons who have not been in Germany for more than 36 months and/or who are accused of an abusive extension of their stay)
