Subsistence benefits in accordance with the German Social Code, Parts II and XII

Trafficked persons may be entitled to benefits under the German Social Code, Parts II or XII. However, the prerequisites for these benefits are very narrowly defined and sometimes interpreted differently. Consequently, the manner in which the federal states handle the cases also varies. For instance, individuals entitled to benefits may include the following:

  • Persons whose usual place of residence is Germany;
  • Persons who have access to the labour market on the basis of their notice of temporary stay or due to their residence permit (and who have been in employment subject to contributions for at least one year);
  • Persons from the new or old EU states, as long as they were granted access to the labour market (and were in employment subject to contributions for one year), or who find themselves in a temporary situation of emergency. In the latter case, however, this only applies if the individuals in question would also have been entitled to benefits in their own countries;
  • Persons who have been in the possession of a residence permit for 36 months without interruption.

Despite the above, entitlement to benefits under the German Social Code, Parts II or XII, must be closely analysed on a case-by-case basis, and the eligibility requirements vary significantly.

Comment of KOK

As stated and explained in greater detail in the Asylum-Seekers’ Benefits Act section, individuals entitled to benefits under Section 1 of the Asylum-Seekers’ Benefits Act cannot receive benefits under the German Social Code, Parts II or XII. The Federal Government’s rationale is that the integration of “foreigners” on the labour market is not required before their chances of remaining in Germany are unclear.

The KOK cannot follow this argument because the victims often extend their stay in Germany anyway and urgently require work opportunities due to their specific circumstances. It remains unclear how this can be brought into line with the EU Directive on the issuance of short-term residence permits or EU Directive 2011/36. The well-known fact that the benefits provided under the Asylum-Seekers’ Benefits Act are nowhere near sufficient to cover the high psychological and physical needs of victims who act as witnesses remains unresolved. KOK therefore demands that the benefits granted to trafficked persons should always be higher than those they are entitled to as per the Asylum-Seekers’ Benefits Act. For example, the provisions under the German Social Code, Parts II and XII, should also be applied to them.

German Social Code Part II

Since 1 January 2005, employable persons in need of support aged 15 to 65 are entitled to benefits in accordance with the new basic jobseekers’ assistance scheme (known as Hartz IV, i.e., the German Social Code, Part II). According to the German Social Code, Part II, the following are considered fit for employment and in need of jobseekers’ assistance:

People considered “fit for employment” are those who fulfil the conditions defined under Section 8 Chapter I of the German Social Code, Part II, i.e. who do not suffer from illness or disability, who will not be incapacitated in the foreseeable future, and who are able to work under normal labour market conditions at least three hours a day. The right to benefits under the German Social Code, Part II, is unrelated to whether the person has acquired entitlement to unemployment benefits or has worked at some point in the past. According to Section 10 para. I of the German Social Code, Part II, such persons can perform any reasonable type of job, unless:

  • He/she is not physically, mentally or psychologically able to fulfil a certain job;
  • The job would significantly and negatively impact the person’s future employment in the area that he/she has worked in in the past, because the job currently offered is especially physically demanding;
  • The job would put at risk the upbringing of a mother’s or her partner’s child who has reached the age of four. In principle, this would not be the case if care is provided for the child in a day-care centre or if he/she receives childcare in accordance with the provisions of Part Eight; the responsible municipal providers should strive to ensure that employable persons in charge of children are given priority for a place at a day-care facility;
  • The job would not be compatible with caring for a relative and said care could not be otherwise guaranteed;
  • There is another serious reason for not being able to do the job.

Long-term unemployment benefits [Arbeitslosengeld II] for employable persons in need of support include:

  • Benefits to cover living expenses, including adequate amounts for accommodation;
  • According to the provisions of Section 24 of the German Social Code, Part II, a temporary supplement can be provided.

Benefits under the basic jobseekers’ assistance scheme are calculated according to income and assets. In principle, this means that the provision of these jobseekers’ benefits can only be guaranteed if their own income does not suffice. The income considered is defined under Section 11, Chapter I of the German Social Code, Part II.

According to Section 8 Chapter II of the German Social Code, Part II, foreign nationals can only be considered as fit for employment under Section 8, Chapter I of the German Social Code, Part II, if they have the right to work or if they are likely to be granted said right. Consequently, the legal opportunity to be allowed to work must be provided. 

German Social Code Part XII

Benefits under the German Social Code, Part XII, are only provided to persons in need of assistance who are not employable (i.e. if they are unable to work minimum 3 hours per day) after the provision of both social welfare and unemployment benefits (cf. Section 8 I of the German Social Code, Part II). In addition, this applies to persons who do not receive basic social benefits according to Sections 41 to 47 of the German Social Code, Part XII. Benefits must be paid out to those unable to cover their own basic living expenses on the basis of their own means or ability. Basic living expenses are: 

  • Food;
  • Accommodation;
  • Clothing;
  • Personal hygiene items;
  • Household effects;
  • Heating; and
  • Personal needs required for day-to-day life (including justifiable coverage for the person’s participation in his/her environment and in cultural activities).

With the entry into force of the German Social Code, Part XII, in future, the overall requirements shall be covered in a lump sum, with the exception of one-off payments for:

  • Initially equipping the household, including appliances;
  • Initial provision of clothing, including for pregnant women and newborns;
  • School outings lasting several days within the framework of educational requirements.

The standard rates do not include the following:

  • Accommodation and heating costs;
  • Additional requirements;
  • The one-off payments listed above;
  • Healthcare and nursing care contributions;
  • Different requirements in specific cases of hardship.
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