The Union is demanding that Ukrainians who are required to do military service in Germany should no longer be paid citizen’s allowance. They should also not be issued replacement documents for expired passports – this is intended to force the Ukrainians to leave Germany. Both demands are not legally feasible, says Constanze Janda, professor of social law in Speyer.
It would be possible, however, to initially not give all Ukrainian refugees citizen’s allowance, but rather support under the Asylum Seekers’ Benefits Act. Janda doubts, however, that this would make sense.
ntv.de: The Bavarian Interior Minister Joachim Herrmann wants to discuss at today’s Interior Ministers’ Conference how to persuade Ukrainians who are subject to military service to leave Germany. In Ukraine, all men between the ages of 18 and 60 are subject to military service. Is it conceivable that this group will no longer receive citizen’s allowance in Germany, but only support under the Asylum Seekers’ Benefits Act?
Constanze Janda teaches social law and administrative science at the German University of Administrative Sciences in Speyer.
(Photo: private)
Constanze Janda: According to the current regulations, this is not possible. Because all people from Ukraine who receive temporary protection in Germany have the same residence permit. They all receive citizen’s allowance on the basis of this residence permit. A separate regulation would have to be created for those liable for military service. But I think that is inadmissible and not feasible.
Because adult men cannot be treated differently than all other people in the same group to which they belong?
Yes. Legally, the granting of benefits is about the right to ensure a dignified existence. It would be permissible to provide for all refugees from Ukraine in accordance with the Asylum Seekers Benefits Act. But if we were to make a different arrangement for a specific subgroup of Ukrainian war refugees, this would have to be justified in terms of the principle of equality.
That means?
We would have to be able to justify how one group differs from another and requires different benefits. The Federal Constitutional Court only allows for differences in subsistence benefits if these groups of people have different existential needs. That is not the case here: whether someone is subject to military service or not, their basic needs for food, clothing and accommodation are the same.
Ukraine no longer issues passports to adult men abroad; anyone who needs new papers must therefore travel to Ukraine. Herrmann demands that “under no circumstances will replacement papers be issued.” Do you need a valid passport to receive citizen’s allowance?
According to the law, in order to receive citizen’s allowance, you need to have “habitual residence”, i.e. your main place of residence must be in Germany. You also have to be able to work and in need of assistance, i.e. you must not have enough of your own means. The identity of the person must of course be established for the administration. But valid papers are not as relevant for social law as they are for the right of residence. Social benefits can also be paid out without valid identification papers.
Would it be legally possible to take the detour proposed by the CSU: not issuing replacement documents to young Ukrainians in order to force them to travel to Ukraine?
The European directive on the mass influx of refugees from Ukraine obliges EU member states to take the necessary measures to ensure that these people can stay here for the entire duration of their protection. Just last week, the EU states agreed to extend the protection until 2026. Germany is therefore obliged to provide this group of people with a residence permit by 2026. At the same time, the Federal Republic is obliged to issue the relevant documents and evidence.
Parallel to the debate about whether male refugees from Ukraine should receive citizen’s allowance, there is a second discussion: the CDU/CSU and FDP are demanding that all newly arrived Ukrainians should only receive benefits under the Asylum Seekers’ Benefits Act. Would that be legally possible?
This would be legally possible because the so-called mass influx directive only provides for a minimum social security standard, for example in health care. This minimum standard corresponds to maintenance under the German Asylum Seekers’ Benefits Act. Such a step would also not be problematic from a constitutional point of view because everyone would be treated equally. Another question is whether it would make sense in practice.
And, would it make sense?
In 2022, politicians deliberately decided to exclude Ukrainians who receive temporary protection from the Asylum Seekers’ Benefits Act. The main reason given for this was that health care should be improved and Ukrainians should be quickly integrated into the labor market. If the whole thing were to be reversed now, it would endanger labor market integration, which is always complained about as being inadequate.
In fact, finding work for Ukrainians in Germany has not worked as well as in other countries. In February 2024, only 21 percent of refugees were employed, while in the Netherlands and Denmark the number was significantly higher last year. Why is that?
It is often claimed that the level of social benefits alone is the reason why people do not work. But the benefits are not that high. Currently, a single person has to get by on 563 euros a month, plus the costs of accommodation and heating. That is no incentive to lie down in the supposed social hammock. In my opinion, it is more due to structural causes: many young women with children have fled from Ukraine to Germany. And we all know that we have a childcare problem in Germany, which prevents them from working. Another reason is our previous approach of sending people to language courses first. This means that they are not available to the job market at first. They are here and receive benefits, but they should learn the language first. It was only with the job boost that the federal government turned this around. And perhaps the fact that Ukrainian women are typically very well qualified plays a role. In the public debate, it is often said: they can work in the catering industry or take on similar jobs. That is easy to say – in practice you then risk losing your qualifications.
So far, Federal Labor Minister Heil’s job boost has not achieved any dramatic success: According to the “Passauer Neue Presse”, almost 33,000 Ukrainian refugees have entered the German labor market this way.
It may be too early to see a reversal of the trend. But overall, it can be seen that the labor force participation of people from Ukraine has been steadily increasing since 2022.
Would it be more difficult for Ukrainians seeking asylum to get a job?
Yes, that would be more difficult. Not because they would then have to apply for asylum, because they would still be protected by the mass influx directive. The problem would be that the municipalities administer the Asylum Seekers Benefits Act. The refugees would then come under the jurisdiction of the social welfare offices. They have a very, very large number of tasks – job placement is not one of them.
Article 12a of the Basic Law states, at least indirectly, that one can refuse military service with weapons for reasons of conscience. Does this only apply to Germans in Germany or could a Ukrainian who is afraid of being rejected or thrown out of the country also invoke it?
This article only refers to people who are subject to German military service. But there is no need to refer to this specific norm. There is the basic right of general freedom of action, which can also be invoked by people to whom Article 12a does not apply. Freedom of conscience is also protected as a basic and human right. The treatment of conscripts is an internal matter for Ukraine. I consider it very problematic to approach this question from Germany, especially via social law.
Hubertus Volmer spoke with Constanze Janda