Many foreigners from countries outside the EU have been unjustly denied child benefit for years. The Federal Constitutional Court decided this in a decision announced on Wednesday and declared a provision in the Income Tax Act to be void because it violates the general principle of equality in Article 3 of the Basic Law.
The regulation stipulates that nationals of most non-EU countries who are permitted to stay in Germany for reasons of international law, humanitarian or political reasons are only entitled to child benefit if they have been legally resident in Germany for at least three years and additionally meet certain characteristics of labor market integration: either they must be legally employed in Germany, receive unemployment benefit I or take parental leave.
The regulation has been in effect since 2006 and was corrected in 2020. At that time, the legislature dispensed with the feature of labor market integration; However, decisions previously issued in accordance with the old legal situation that have become final are not revoked even after the court’s decision. The case came to Karlsruhe via a finance court, which had already suspended four proceedings in 2013 and submitted them to the constitutional court. Women from Russia, Vietnam and Iran as well as a Palestinian complained.
The provision was intended to ward off “immigration into the social systems”, which had been the subject of heated political debate for years. It was based on the idea that only foreigners living permanently in Germany should receive child benefit.
The Federal Constitutional Court expressly approved this objective in its decision. In the opinion of the Second Senate, however, the specific regulation causes unequal treatment between subgroups of foreigners with a humanitarian residence permit. Here, only those who are integrated into the labor market have received child benefit. The judges ruled that the loss would not be compensated for by other social benefits. Because foreigners could have their own assets and therefore, like Germans, be excluded from receiving support services.
The unequal treatment cannot be justified. Integration into the labor market as such is an unsuitable criterion for differentiation. In the case of humanitarian residence permits in particular, the length of stay depends on external circumstances such as the situation in the countries of origin. It cannot be concluded from this that those affected only stayed in the Federal Republic for a short time. It would also not do justice to their actual situation if they were permanently excluded from receiving child benefit even if they received unemployment benefit II for a short period of time. The legislator incorrectly chose an “atypical case” as a model.
