No Child Benefits for Refugees Constitutional

Are not child benefits (Kindergeld) linked to raising a child and not to the legal status of an alien? Can it be that such a provision as §62 II no. 2 lit. c EStG is even constitutional? Well the Federal Tax Court confirmed it previous precedences to this question with its verdict of April 28, 2010 (re III R 1/08).

At the age of 18, Mirje moved from ex Yugoslavia in 2000 to wed her 16-year-old fiancée. She first had the status of toleration; meaning she was supposed to leave the country but this could not be enforced. As time passed, she gave birth to two children. Her third child, however, was granted German citizenship. Mirje's and her children's livelihood was secured by welfare. In 2005, Mirje was granted a residence permit pursuant to §25 V AufenthG on humanitarian grounds. This kind of permit only then makes Mirje eligible for child benefits when she has a legal status for at least three years and is legally working in Germany. In the same month, she applied for child benefits without success. Seeking legal recourse was also without success.

Mirje argued that it was unconstitutional because her exclusion as a foreigner constitutes an unequal treatment (art. 3 I GG). She, as an unmarried foreigner, does not receive child benefits while foreigners living with their German family member do get such benefits. The kind of residence permit may not determine whether or not a person is eligible for child benefits.

As previously ruled, the court acknowledges the lawgiver's wide scope of setting the rules for eligibility of child benefits. It is inside the lawmaker's discretion to link the benefits to the residential status of a foreigner. The court sees no reason to change its ruling case law.

It might be that the Federal Social Court sees constitutional issues in regards to "Erziehungsgeld (Benefits for Raising Children)" pursuant to §8 I 1 BErzGG such benefits are based on social law, or welfare, and not in tax law. This makes things different. The Federal Constitutional Court (BVerfGE 111, 160) has the point of view that loss of child benefits and needing supplementary welfare reduce the chances of aliens to improve their residential status. However that might be, since the new law of 2005 came into effect, foreigners are required to have their livelihood ensured in order to obtain or retain a residence permit (§5 I no. 1 AufenthG).


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