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:
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.
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.
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:
Long-term unemployment benefits [Arbeitslosengeld II] for employable persons in need of support include:
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.
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:
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:
The standard rates do not include the following: