Can it be avoided to dispense citizen's allowance to conscripted Ukrainians?
The Union proposes that drafted Ukrainian men in Germany no longer receive social assistance and are unable to replace expired passports, aiming to push them out of Germany. However, Constanze Janda, a social law professor in Speyer, states these measures are legally unenforceable.
Initially, social benefits could be withheld from all Ukrainian refugees, but instead, they would be supported according to the Asylum Seekers Benefits Act. Janda questions the significance of this approach.
ntv.de: The Bavarian Interior Minister Joachim Herrmann discusses encouraging drafted Ukrainian men to leave Germany in today's Interior Ministers Conference. Conscripts in Ukraine are males aged 18-60. Is it feasible to deny social benefits to this group, offering them support only under the Asylum Seekers Benefits Act?
Janda comments that this is currently impossible due to existing regulations. As all Ukrainians in Germany with temporary protection have the same residence permit, they all receive social benefits. A special regulation would be necessary for conscripts. But Janda considers this to be inadmissible and unenforceable.
Is it possible to discriminate against adult men compared to other members of the same group? Yes, constitutionally, it's about securing a humane existence through social benefits, and it would be permissible to support all Ukrainian refugees according to the Asylum Seekers Benefits Act. However, if a specific subgroup within Ukrainian war refugees is singled out and given different benefits, an explanation will be required under the Equality Principle.
What does that mean? To justify the difference, we should demonstrate why this group has unique needs needing distinct benefits. The Federal Constitutional Court only accepts differences in existential benefits for groups with distinct existential needs. In this case, the need for food, shelter, and clothing is the same for conscripts and non-conscripts.
Regarding the Ukraine not issuing passports to adult men abroad, new documents can only be obtained by traveling to Ukraine. Herrmann demands that no replacement documents should be issued under any circumstances. Are valid passports necessary for receiving social benefits? According to the law, a usual residence in Germany is required, and the person must be capable of employment, yet lacking sufficient resources. Identity verification is necessary for administrative purposes. However, social law isn't as dependent on valid documents as residence law. Social benefits can be dispensed without proper identification papers.
Is it legally feasible to take the CSU-proposed route: denying replacement documents to young Ukrainians to coerce them to return to Ukraine? The European Directive for Mass Influx of Refugees from Ukraine obliges EU member states to ensure these individuals can stay until the duration of protection. Therefore, Germany is bound to provide a residence permit until 2026, along with the necessary documents and evidence.
Parallel to the debate on whether male refugees from Ukraine should receive social benefits, another discussion emerges: The Union and FDP demand that only benefits according to the Asylum Seekers Benefits Act should be given to new Ukrainian refugees. Would that be legally feasible? This would be legally possible as the Mass Influx Directive only sets a minimum standard, such as healthcare, which corresponds to the maintenance level set by the German Asylum Seekers Benefits Act.
Would this be practical? In 2022, politics decided to remove Ukrainians, who receive temporary protection, from the Asylum Seekers Benefits Act, mainly to improve healthcare and rapidly integrate Ukrainians into the job market. If this change were reversed, work market integration could be jeopardized as it is often criticized for being insufficient.
The labor market integration of Ukrainian women and men in Germany has not been as successful as in other countries. By February 2024, only 21% of the refugees were employed. In the Netherlands and Denmark, employment rates were higher in the previous year. Why is this? It is often argued that high social benefits discourage people from working, but the benefits are not excessive. Currently, a single person must survive on 563 Euros per month, excluding accommodation and heating costs, which is not enticing enough to fall into the supposed welfare trap. In my opinion, structural causes are likely the culprit, such as a childcare problem in Germany, which negatively impacts employment, insufficient language courses offered, and high qualifications among Ukrainian women in the public debate.
Job-Turbo, a program initiated by Federal Labor Minister Heil, has yet to deliver major breakthroughs, as per the "Passauer Neue Presse" reporting around 33,000 Ukrainian refugees securing employment in Germany via this program.
Things may still be on the upswing, but it's worth noting that since 2022, the employment rate for Ukrainians has been climbing steadily.
Is it more challenging for Ukrainians to land a job as asylum seekers in Germany?
Indeed, it's a tougher road. While they are protected under the Mass influx Regulation when filing for asylum, the issue is that local administrations oversee the Asylum Seekers Benefits Act. This means that the refugees would fall under the supervision of social welfare offices, which have numerous responsibilities - job placement isn't among them.
Article 12a of the German Basic Law indirectly allows for conscientious objection to military service with weapons. Is this only applicable to Germans in Germany, or can an Ukrainian citizen who fears expulsion or exile also invoke it?
This article is relevant only to those subject to the German military service. But for those not covered by Article 12a, other means can be explored. The right to general freedom of action can be invoked. Additionally, the right to freedom of conscience is a fundamental and human right, though the handling of drafted individuals remains an internal matter for Ukraine. Delving into this question from a German perspective and involving social law raises concerns.
Interview with Constanze Janda, Hubertus Volmer interviewed
Read also:
- Joachim Herrmann, in a recent interview, suggested promoting the departure of drafted Ukrainian men in Germany by denying them social benefits beyond the Asylum Seekers Benefits Act.
- Asylum seekers from Ukraine, including conscripts, are currently eligible for the same social benefits due to having the same temporary protection status in Germany.
- Refugees from Ukraine who are unable to obtain replacement passports due to Joachim Herrmann's stance may face challenges in accessing social benefits, as per German law.
