Reflections on Germany's Third Asylum Benefit Act Decision

Lukas Hochstaetter is a former intern for Dr. Margareta (Magda) Matache, Director of FXB’s Roma Program for Health and Human Rights. He began pursuing a dual MA-MSc at Columbia University and the London School of Economics and Political Science in Fall 2025.

By Lukas Hochstaetter

August 31, 2026

On 15 April 2026, Germany’s Federal Constitutional Court handed down its third ruling on the Asylum Benefit Act (1 BvL 5/21). The case was brought by an Eritrean mother and her seven-year-old son who arrived in Germany in 2017 seeking asylum. Their asylum applications were rejected as inadmissible because, under the EU’s Dublin III Regulation, Italy was responsible for examining their claims. Their transfer to Italy was therefore ordered. The transfer was never carried out, however, and they instead remained in Germany on a so-called Duldung, a tolerated stay status under which deportation is suspended for as long as it is factually or legally impossible. During their first 15 months in the country, they received welfare benefits for asylum-seekers and comparable groups under the Asylum Benefit Act, which were roughly 15 to 18 percent lower than regular welfare benefits. They sued, arguing these payments were unconstitutionally low. The Court found that the reduced benefit system itself was largely acceptable, because the government may reasonably assume that people do not yet need money to save up for things like a television, computer, or hobby class, if their right to stay is still uncertain. However, the Court did rule against the government on one point, namely, that the benefit amounts were calculated using outdated consumer spending data from 2008, even though newer data from 2013 had been available since 2016, and the government had lacked political will to update the figures for years. Despite this finding, the Court did not order any back payments, so the family will not actually receive more money to make up for previous inaccurately calculated payments. Furthermore, the ruling does not raise their benefits going forward. Since September 2019, the rates have, in any event, been recalculated based on the 2013 data. The family’s only potential consolation is that the finding of unconstitutionality will perhaps be taken into consideration in future decisions regarding their litigation costs.

Dignified Minimum?

Article 1 of the German Basic Law prominently protects human dignity, and Article 20 establishes Germany as a social welfare state. From reading these two provisions together, the Federal Constitutional Court derived in 2010 a fundamental right to a dignified minimum standard of living, obliging the state to provide anyone in need with the material prerequisites which are indispensable for his or her physical existence as well as a minimum of participation in social, cultural, and political life. In subsequent rulings, the Court recognized a wide margin of appreciation for the legislator in calculating these benefits, and the Court only intervenes if payments are evidently insufficient or cannot be plausibly justified. This April, it found that the benefits were not evidently too low, and that excluding savings for computers, televisions, or language courses during the first 15 months was a permissible value judgment, since people with an uncertain prospect of remaining in Germany would realistically not save small monthly amounts for purchases tied to a long-term stay. The only constitutional failure, the Court ruled,lay in the outdated calculation basis, because a right meant to reflect actual current needs is undermined when the underlying data is ten years old.

Dual Standard of Dignity?

The finding on the outdated data deserves no applause. For a country that prides itself on being a human rights frontrunner and readily lectures others inside and outside the European Union, it is plainly embarrassing that existential benefits for asylum-seekers were still calculated on 2008 data. Recipients of ordinary social assistance and jobseekers’ benefits had their rates recalculated on the 2013 survey as of January 2017 and adjusted annually thereafter, while beneficiaries under the Asylum Benefit Act were frozen at amounts derived from 2008 data, with no adjustment whatsoever between March 2016 and September 2019.The constitutional violation was so evident that the Court could not avoid it, and yet the finding comes without any consequence, since the provisions remain applicable and no repayments are owed. A violation of human dignity without remedy is a curious kind of vindication. Notably, the decision was not unanimous; it was handed down over dissenting votes. The deeper disappointment, however, lies in what the Court was willing to accept. Writing on Verfassungsblog (On Matters Constitutional), Luise Freitag argues that the Court has in substance blessed a dual standard of dignity. It formally repeats its old principle that the legislator may not differentiate by residence status, but it materially permits exactly such a differentiation as long as it is presented as an evaluative decision anchored in the uncertain prospect of remaining in Germany. This contradiction legitimizes internal border politics and amounts to a “minimization of the minimum” for certain groups of people so that human dignity becomes conditional instead of offering general and equal protection. The ruling also hands the legislator a template for further restrictions. Moreover, the waiting period before asylum-seekers receive equal benefits grew from 15 to 18 months in 2019 and finally to 36 months in 2024. After the waiting period, beneficiaries receive what are referred to as analogous benefits, calculated by applying the ordinary social assistance rules of the Twelfth Book of the Social Code. In principle, they are therefore paid at the same rates as regular welfare recipients, though still administered under the special regime of the Asylum Benefit Act.

Unsatisfactory Child Protection

At its heart, the case concerned a seven-year-old child, and it is here that the ruling leaves perhaps its most bitter aftertaste. The Court reiterated that European and international law, namely the European Convention on Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International Convention on the Elimination of All Forms of Racial Discrimination, and the UN Convention on the Rights of the Child, yield no greater protection than the German Basic Law itself. This is a remarkable statement given what the Convention on the Rights of the Child actually demands for the design of subsistence benefits. Article 3 requires that the best interests of the child be a primary consideration in all regulations; Article 22 provides that children seeking refugee status under national or international asylum law must not be disadvantaged in exercising their rights; and Article 28 establishes a human right of children to education. The role of the United Nations High Commissioner for Refugees (UNHCR) in the case makes this all the more disappointing. Again and again, the UN Refugee Agency praises Germany as a large refugee-hosting country, an important partner in refugee protection, and its second-largest donor, and it describes strong partnerships with ministries, parliament, and the domestic courts. When the Federal Constitutional Court then invited the UNHCR to comment in this case, one that turned precisely on the dignity and education of a refugee child, the agency declared that it had no contributions of its own to offer. It is a pity, almost sad, that an organization so intertwined with upholding refugee protection apparently found nothing to say at the very moment when its voice could have mattered.

The above represents solely the views of the author and does not necessarily represent the views of the institution.