Refugee Crisis in Germany and the Right to a Subsistence Minimum: Differences That Ought Not Be

• Jurisdiction: European Union
• Citation: Vol. 47 No. 2
• Publication year: 2019

REFUGEE CRISIS IN GERMANY AND THE RIGHT TO A SUBSISTENCE MINIMUM: DIFFERENCES THAT OUGHT NOT BE

Ulrike Davy^*

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TABLE OF CONTENTS

I. INTRODUCTION...................................................................................370

A. "Refugee Crisis"...............................................................370
B. Public Opinion Turns........................................................373
C. Lawmakers Respond.........................................................375
D. Preview.............................................................................378

II. REFUGEE CRISIS: NUMBERS, FACTS, AND LEGAL FRAMEWORKS......379

A. Applications for Asylum......................................................379
B. Protection Granted.............................................................381
C. Decision-Making and Removal..........................................383
D. Processing of Claims..........................................................384
E. Status of Claimants.............................................................387

i. Legality of Presence..................................................387
ii. Toleration..................................................................388

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iii. Other Status...............................................................389
iv. Reliance on Social Benefits.......................................391

III. DEFINING THE SUBSISTENCE MINIMUM.............................................393

A. The General Regime: Social Assistance and Basic Security 393

i. History.......................................................................393

a. A State-Provided Minimum...........................393
b. A Constitutional Right to a Subsistence Minimum: Human Dignity............................395

ii. Beneficiaries..............................................................398
iii. Benefits......................................................................399

B. The Particular Regime: Asylum Seekers' Benefits...........402

i. History........................................................................402

a. The Introduction of the Regime.....................402
b. The Challenge Before the BVerfG: Human Dignity...........................................................404

ii. Beneficiaries..............................................................406
iii. Benefits......................................................................406

a. Regular Benefits............................................407
b. Downgraded Benefits....................................408
c. Upgraded Benefits........................................409

IV. DIFFERENCES BETWEEN THE GENERAL AND THE PARTICULAR REGIME: WHY THEY OUGHT NOT EXIST.....................................................410

A. The Differences...................................................................410
B. The Perspective of the Grundgesetz...................................411

i. WhytheAsylbLGasof2011 Undercuts Human Dignity .............................................................................411
ii. Why the AsylbLG Still Undercuts Human Dignity.... 413

a. Differing Amounts of Benefits.......................413

1. Regular Benefits Under the AsylbLG ........................................................413
2. Downgraded Benefits Under the AsylbLG..........................................417

b. Differing Forms of Benefits..........................420

C. The Perspective of EU Directive 2013/33 and the Charter of Fundamental Rights............................................................421

i. The Framework of EU Law.......................................421
ii. The Background of Directive 2003/9 on Reception Standards.............................................................424

a. Common European Asylum System..............424

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b. Discontent and Critique................................426

iii. Material Reception Conditions Recast: Reluctant Lawmakers...........................................................428

a. First Initiative...............................................428
b. Second Initiative............................................430
c. Outcome of Initiatives...................................432

iv. Material Reception Conditions: Cautious Justices... 434

a. The Role of the European Court of Justice... 434
b. The Court's Approaches to Human Dignity. 435

1. Cimade and GISTI........................435
2. Saciri et al.....................................436
3. Abdida...........................................438

c. The Court's Approaches to Equality.............440

1. International Protection Standards .....................................................440
2. Alo and Osso...............................441

v. A Less Cautious Approach: Taking Human Dignity and Equality More Seriously......................................444

a. Human Dignity and Equality........................444
b. Shortcomings of Directive 2013/33..............447

V. Conclusion......................................................................................449

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I. Introduction

A. "Refugee Crisis"

In the summer and fall of 2017, the time of writing this article, Germany was in the wake of what had been termed the "Flüchtlingskrise" (refugee crisis) in 2015.¹ The unfolding of the refugee crisis was intensely covered by the media as it took place. Some pictures of the coverage still stick in mind: In the summer and the fall of 2015, hundreds of thousands of desperate people—men, women, children—literally marched through parts of Europe to escape dire circumstances, such as civil war in Syria and unrest and insecurity in Afghanistan, Iraq, or Iran. Many people simply walked for miles and miles along railway tracks leading northwest once they reached the Balkan countries, after surviving a very dangerous crossing-over from Turkey to Greece.² The German media called the passage through southeast Europe the "Balkan route" or the "Western Balkans route."³ After the refugees had left Greece, they proceeded to the Former Yugoslav Republic of Macedonia and Serbia, then to Hungary (or Croatia and Slovenia), Austria, and, eventually, Germany.⁴

Clearly, the refugees expected the European Union (EU) to help. But many EU member states were reluctant to give in to that expectation. The countries most affected by the crisis—Greece, Hungary, Italy—offered little support in the summer of2015.⁵ Hungary even turned to outright hostility in the fall of 2015.⁶ Greece, Hungary, and Italy were happy to see the refugees move on, even though EU law demanded that they evaluate the refugees'

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claims and provide the means necessary for a decent living.⁷ The Dublin System, created by the EU in the 1990s with the intention to shift all responsibilities towards the member states issuing entry documents or failing to prevent illegal border crossings,⁸ had broken down.⁹ The Eastern European countries to the north, such as the Czech Republic, Poland, and Slovakia, strongly resisted any enactment by the EU of quota-based programs designed to help countries on the periphery through relocation or resettlement.¹⁰

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Within a few weeks, Germany had become the country of choice for most of the refugees reaching European soil.¹¹ In mid-August 2015, German officials expected the number of incoming refugees to reach 800,000 by the end of the year¹² —a number without precedent. At the end of August 2015, a deserted truck carrying the decayed bodies of seventy-one people, suspected to be illegal migrants, was found close to Austria's eastern border.¹³ The truck had been passing through Hungary before entering Austrian territory.¹⁴ Federal Chancellor Angela Merkel was "deeply shaken by the news."¹⁵ At that point in time, Germany had already decided to allow any Syrian refugee reaching Germany to apply for asylum, i.e., it no longer relied on Greece, Hungary, or Austria regarding the processing of asylum applications under to the Dublin System.¹⁶ On September 5, 2015, against the background of persistent violent protests orchestrated by right-wingers,¹⁷ Angela Merkel decided to relinquish border controls altogether,¹⁸ a measure that lasted de facto well into the spring of 2016.¹⁹ In the summer of 2016, the Balkan route was basically sealed off again. Turkey had agreed to resume stricter border controls in March 2016 (promising to stop crossings-overs to the Greek islands).²⁰

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The countries along the Balkan route started closing their borders.²¹ Many refugees turned again to the much more dangerous route that leads from Northern Africa (often from Libya) to Italy, the so-called Mediterranean route.²²

B. Public Opinion Turns

In mid-August 2015, public opinion sided with Angela Merkel when she responded to verbal attacks in the small town of Heidenau in Eastern Germany, saying "There is no tolerance for those who are not willing to help where legal and human help is required."²³ A few months later, public opinion had changed. The change was triggered by events taking place in Cologne on New Year's Eve 2015 and by ensuing events also involving crimes supposedly committed by non-nationals whose presence was covered by the legal regime governing asylum applicants.

On the last day of 2015, the square between the railway station and the dome of Cologne was the venue of massive sexual assaults on women.²⁴ More than 1,000 complaints were filed afterwards.²⁵ The assaults were orchestrated by young men; allegedly, many of the young men had come to Germany from Northern Africa or the Middle East.²⁶ The men attacked women in groups, forming circles around the women; this left the women and their male companions helpless and humiliated.²⁷ Authorities soon tied the attacks to Algerians, Moroccans, Syrians, Iranians, and Iraqis, some of whom had recently arrived in Germany and registered as asylum seekers.²⁸ Shortly before Christmas 2016, a heavy truck hijacked by a...