Concept and fundamental structure of the Asylum Seekers’ Benefits Act
Das Asylum Seekers’ Benefits Act (Abbreviation: AsylbLG) is a German law that regulates social law benefits for certain groups of foreigners who reside in Germany, particularly for asylum seekers and individuals with tolerated stay status. It came into effect on November 1, 1993, and is one of the core provisions of German immigration and migration law. The purpose of the AsylbLG is to legally regulate the entitlement to and extent of benefits for persons who do not have access, or have only limited or non-equivalent access, to regular benefits under the Social Code (SGB).
1. Scope and personal applicability
Eligible persons (§ 1 AsylbLG)
The following groups of persons are covered by the scope of the Asylum Seekers’ Benefits Act:
- Foreigners who are present in Germany and have filed an asylum application (asylum seekers).
- Foreigners with temporary residence permission pursuant to § 55 Asylum Act.
- Foreigners with a tolerated stay status (§ 60a Residence Act).
- Foreigners required to leave the country, whose deportation cannot be carried out for legal or actual reasons.
- Certain foreigners who enter or remain in the transit area of an airport.
In principle, the entitlement to benefits exists until the final decision on the residence application or until departure from Germany. There is no retroactive entitlement to benefits for later periods.
Exclusion from benefits
Certain groups of foreigners, in particular those with a right of residence on humanitarian grounds or with permanent residence status, are excluded from benefits under the Asylum Seekers’ Benefits Act and fall under the general provisions of SGB II or SGB XII.
2. Scope of benefits under the Asylum Seekers’ Benefits Act
Basic benefits (§ 3 AsylbLG)
The basic benefits include:
- Accommodation and heating (in-kind or cash benefits).
- Food, clothing, health and personal care (primarily in-kind benefits).
- Household goods for use and consumption.
- Pocket money for personal daily needs.
- Benefits to secure the minimum subsistence level, similar to social assistance, but generally set at a lower level.
The provision for subsistence should preferably be provided in collective accommodation through in-kind rather than cash benefits.
Special benefits (§ 6, § 6a AsylbLG)
In addition to the basic benefits, there is also an entitlement to:
- Benefits in special cases, such as pregnancy or childbirth (e.g., initial equipment).
- Educational and participation benefits for children and adolescents.
- Additional assistance as necessary to secure subsistence in individual cases.
Necessary medical care (§ 4 AsylbLG)
Pursuant to § 4 AsylbLG, benefits are granted in cases of illness, pregnancy, and childbirth:
- Statutory entitlement to treatment of acute illnesses and pain conditions.
- For pregnant women and women who have recently given birth: special consideration and additional benefits.
- Provision of medicines, bandages, and therapeutic remedies as necessary.
Persons with chronic or long-term illnesses may receive further benefits under certain conditions at the discretion of the responsible authorities.
Extended benefits after 18 months (§ 2 AsylbLG)
Anyone who has resided continuously in Germany for at least 18 months and has not deliberately prolonged this period in bad faith may receive benefits equal to basic unemployment support (SGB II) or social assistance (SGB XII).
3. Entitlement requirements and benefit exclusions
Exclusions, reductions, and suspension of claims (§§ 1a, 7 AsylbLG)
Benefits may be wholly or partially excluded or reduced, particularly if:
- The reason for the stay is not justified under § 1 AsylbLG.
- Foreigners violate requirements relating to residence, tolerated stay, or registration.
- The length of stay was deliberately prolonged in bad faith.
- Eligible persons have their own income or assets.
Benefits are further restricted if the individual is an ‘alien required to leave immediately,’ whose departure is imminent.
Reimbursement and crediting
Own income and assets, as well as claims for maintenance against third parties, are credited towards benefits under the Asylum Seekers’ Benefits Act.
4. Procedure, administrative responsibility, and legal remedies
Responsible authorities
The local social authorities in the states and municipalities are responsible for the implementation and provision of benefits under the Asylum Seekers’ Benefits Act.
Application procedure
Benefits generally must be applied for. In urgent cases, a subsequent application with immediate benefit provision is also possible.
Legal recourse and objection
Disputes arising from the Asylum Seekers’ Benefits Act are subject to the jurisdiction of the social courts. Appeals can first be lodged against administrative decisions. If rejected, legal action before the social court is possible.
5. Purpose of the law, history and criticism
Purpose of the law
The Asylum Seekers’ Benefits Act serves to secure the minimum subsistence level for foreigners who are residing in Germany without permanent residence status. At the same time, it pursues migration policy objectives by not making the stay for asylum seekers and persons required to leave the country more attractive than for the regularly resident population in Germany.
Historical development
The law was created as part of the so-called ‘asylum compromises’ in 1993 and has been amended several times over the years, most recently to adjust to constitutional standards as repeatedly demanded by the Federal Constitutional Court.
Criticism and decisions by the constitutional court
The Asylum Seekers’ Benefits Act is often subject to political and legal criticism. In particular, the level of benefits was found to be insufficient by the Federal Constitutional Court (judgment of July 18, 2012, 1 BvL 10/10 and 1 BvL 2/11), prompting adjustments. Criticism also focuses on the restricted health care provision and the principle that in-kind benefits take precedence over cash benefits.
6. Relationship to other social laws
The Asylum Seekers’ Benefits Act constitutes a lex specialis compared to the Social Code. It supersedes SGB II, SGB XII as well as the Federal Child Benefit Act for the groups of persons covered within its scope. Upon fulfillment of certain conditions (e.g., after 18 months of stay) or after a change in residence status, gradual access to the regular social security system is granted.
Summary: The Asylum Seekers’ Benefits Act is an independent and comprehensive legal framework that determines benefits for ensuring subsistence for asylum seekers, persons with tolerated stay, and foreigners required to leave the country. It governs the nature and scope of social benefits, medical care, conditions of access, and includes a variety of migration law control mechanisms. It constitutes an exceptional provision in German social benefit law and is the subject of ongoing legal and socio-political debate.
Frequently asked questions
Who is entitled to benefits under the Asylum Seekers’ Benefits Act?
Entitlement to benefits under the Asylum Seekers’ Benefits Act (AsylbLG) generally exists for persons residing in Germany who meet one of the requirements specified in § 1 AsylbLG. This includes, in particular, asylum seekers with temporary residence as defined by the Asylum Act, foreigners required to leave the country with enforceable orders, and other persons who cannot be deported for humanitarian, legal, or actual grounds. Their spouses, life partners, and minor children are also eligible, provided they live together in Germany, regardless of whether they themselves have lodged an asylum application. The entitlement generally exists only as long as no permanent residence permit pursuant to the Residence Act is in place. Granting of specific benefits also depends on individual needs and whether benefit restrictions apply, for example in cases of non-cooperation or illegal entry.
What types of benefits are provided according to the Asylum Seekers’ Benefits Act?
The AsylbLG primarily regulates the provision of basic benefits (§ 3 AsylbLG) to secure subsistence, including food, accommodation including heating, clothing, health and personal care, household goods for use and consumption, and other necessary daily needs. In addition, there are so-called special benefits (§ 6 AsylbLG) that address specific needs, such as in cases of illness, pregnancy, or childbirth. Benefits may be provided as in-kind benefits or, if not feasible for legal or factual reasons, as cash benefits. Medical care is generally provided only for acute illnesses and pain conditions, although for certain groups of persons, extended benefits according to § 2 AsylbLG may be granted, modeled on the Social Code (SGB XII). Additional benefits may be granted to meet further needs in special emergencies such as relocation or procurement of furniture.
How are benefit entitlements calculated?
Calculation of benefit entitlements takes into account the statutory catalog of benefits and the individual living circumstances of the persons concerned. As a rule, basic benefits under § 3 AsylbLG are granted as in-kind benefits, with a statutory value established for food, accommodation and heating and other necessary needs. The exact amount of benefits is based on the amounts and needs levels specified in §§ 3, 3a, and 6 AsylbLG, which are regularly adjusted. Special circumstances, such as provision outside of collective accommodation or the existence of special needs (e.g., during pregnancy or in medical emergencies), may affect the amount and type of benefits provided. It should be noted that income and assets of persons entitled under the law are counted towards the benefit, in accordance with §§ 7 and 8 AsylbLG, and may reduce or exclude the entitlement.
Under what conditions are benefits under the Asylum Seekers’ Benefits Act restricted or excluded?
Benefits under the AsylbLG may be restricted under certain conditions. A ground for exclusion exists, in particular, if the person concerned does not actively strive to end their residence status, for example, does not fulfill obligations to leave or fails to cooperate as required. Under § 1a AsylbLG, benefits may be reduced if the stay is unduly prolonged, for instance by lack of cooperation in establishing identity. Persons required to leave Germany who do not depart voluntarily may also be subject to reduced benefits. However, basic provision may never be completely withdrawn; a dignified minimum standard of existence must always be ensured (§ 1a paragraph 2 AsylbLG). Furthermore, sanctions may be imposed for failure to comply with reporting obligations (§ 8 paragraph 3 AsylbLG).
What does the Asylum Seekers’ Benefits Act stipulate regarding medical care?
Medical care under the AsylbLG is primarily guided by § 4 AsylbLG. Eligible persons have a right to medical treatment and the provision of medicines and bandages in cases of acute illness and pain. The same applies for necessary immunizations and required preventive medical check-ups. For pregnant women and women who have recently given birth, § 4 paragraph 2 AsylbLG provides for expanded provision, including medical and nursing assistance as well as provision of medicines, therapeutic, and medical aids. For additional, non-acute treatments, coverage may be granted under § 6 AsylbLG if other benefits for maintaining health are essential in the individual case. If persons have stayed in Germany for longer than 18 months (from 2023: 18 months, previously 15 months) and deportation has not been delayed through their own fault, they may claim benefits under the SGB XII, including regular health care, according to § 2 AsylbLG.
How long is there entitlement to benefits under the Asylum Seekers’ Benefits Act?
The entitlement to benefits under the AsylbLG generally exists for the duration of the stay in Germany, as long as the right of residence or a tolerated stay status according to § 1 AsylbLG exists. As soon as a permanent residence permit is acquired under the Residence Act or recognition as a refugee or person eligible for asylum occurs, the entitlement to benefits under the AsylbLG ends and there is a transition to other social benefits systems, e.g., SGB II (basic unemployment support) or SGB XII (social assistance). The scope of benefits may change during the period of stay in Germany, depending on the duration of the stay (different benefit system after more than 18 months) and on any benefit restrictions or sanctions.
What obligations do beneficiaries have under the Asylum Seekers’ Benefits Act?
Beneficiaries are obliged to provide all information about their person and residence status correctly and completely (§ 8 paragraph 1 AsylbLG), to cooperate in establishing their identity and nationality, and to comply with reporting and cooperation obligations. Any change in personal or financial circumstances that could affect entitlement to benefits must be reported to the competent authority without delay. If these obligations are breached, in particular in the case of deliberate false information or failure to cooperate, benefits may be reduced (§ 1a AsylbLG). Benefits that have been unduly received may also be reclaimed by the competent authority through repayment procedures (§ 9 AsylbLG).
