Author
General (scope, time limits)
According to the Procedure Decree, the Territorial Commission interviews the applicant within 30 days after having received the application and decides in the 3 following working days. When the Territorial Commission is unable to take a decision in this time limit and needs to acquire new elements, the examination procedure is concluded within 6 months of the lodging of the application. The Territorial Commission may extend the time limit for a period not exceeding a further 9 months, where:
- Complex issues of fact and/or law are involved;
- A large number of asylum applications are made simultaneously; or
- The delay can clearly be attributed to the failure of the applicant to comply with his or her obligations of cooperation.
By way of exception, the Territorial Commission, in duly justified circumstances, may further exceed this time limit by 3 months where necessary in order to ensure an adequate and complete examination of the application for international protection.[1] In light of the different possibilities of extension, the asylum procedure may last for a maximum period of 18 months.
In practice, however, the time limits for completing the regular procedure are not complied with. The procedure usually takes much longer, considering on one hand that the competent determining authorities receive the asylum application only after the formal registration and the forwarding of the C3 form through the case database, Vestanet. On the other hand, the first instance procedure usually lasts several months, while the delays in issuing a decision vary between Territorial Commissions. In cities such as Rome, the entire procedure is generally longer and takes from 6 up to 12 months.
Statistics on the average duration of the procedure are not available.
In 2022, 77,200 asylum requests were registered in Italy, compared to 56,388 in 2021[2] and 53,060 were the first instance decisions issued on asylum applications ( compared to 52,987 in 2021).[3] Of these, 7,610 (14%) were decisions granting a refugee status, 7,205 a subsidiary protection (13%) and 10,865 (20%) a national protection (protezione speciale). Overall, the recognition rate stood at 47%, a slight increase compared to 2021 when it was 44%.
Termination and notification
The Procedure Decree states that when the applicant, before having been interviewed, leaves the reception centre without any justification or absconds from CPR or from hotspots, the Territorial Commission should suspend the examination of the application on the basis that the applicant is not reachable (irreperibile).[4]
The applicant may request the reopening of the suspended procedure within 12 months from the suspension decision, only once. After this deadline, the Territorial Commission declares the termination of the procedure. In this case, applications made after the declaration of termination of the procedure are considered Subsequent Applications.[5]
Subsequent applications submitted after the termination of the 12-month suspension period are subject to a preliminary admissibility examination.[6] During the preliminary examination, the grounds supporting the admissibility of the application and the reasons of the moving away from the centres are examined.[7] In the recent years, ASGI received several reports of suspension of procedures for people whose accommodation had been revoked.
The Procedure Decree also provides for a different procedure in cases where the untraceable person lived privately. In this case, according to Article 12 (5), the Commission establishes a new hearing and the reopening of the procedure if the not reachable people present themselves within 10 days from when they learned of the hearing, explaining the reasons why they had not been aware of it.
However, through a note sent to the Territorial Commission of Ancona on 19 December 2022, the CNDA indicated that, in the case of unreachable persons, it must apply the – different – rule provided for notifications in cases where the addressee is not found and that, if the applicant wants to restart the procedure, the rules providing its suspension (for people accommodated)( Article 23 bis Procedure Decree) and the ones providing the possibility to restart it within 10 days from the discovery of the hearing date ( Article 12(5) Procedure Decree), should be residual, because once the notification has been completed the only way to restart the procedure is to submit a subsequent application.
According to what was reported to ASGI, the same directive was also followed, at the beginning of 2023, by the Commission of Cagliari which refused to reopen the procedure for an asylum seeker who was no longer untraceable and informed the applicant that he would have to submit a subsequent application.
In fact, Decree Law 13/2017 introduced a new procedure to notify interview appointments and decisions taken by the Territorial Commissions.[8]
The Procedure Decree, provides for three different procedures depending on whether the recipients of the notification are: (i) accommodated or detained; (ii) in private accommodation; or (iii) not reachable (irreperibili):
- Accommodated or detained applicants: Interviews and decisions can be notified by the managers of reception or detention centres, who then transmit the act to the asylum seeker for signature. The notification is considered to be carried out when the manager of the reception centre facility communicates it to the Territorial Commission through a certified email message indicating the date and time of notification. The law specifies that such communication must be immediate.[9]
- Applicants in private accommodation: The notification must be made to the last address communicated to the competent Questura. In this case, notifications are sent by postal service.[10]
- Non-reachable applicants: The interview summons or decision is sent by certified email from the Territorial Commission to the competent Questura, which keeps it at the disposal of the persons concerned for 20 days. After 20 days, the notification is considered to be completed and a copy of the notified deed is made available for the applicant’s collection at the Territorial Commission.[11]
Questure often place onerous conditions on the registration of address e.g. by requesting declarations of consent from the owners of the apartments where people are privately staying. Given those conditions, the law risks creating a presumption of legal knowledge of the act to be notified where there is none. The same risk exists for the Dublin returnees who had left Italy before receiving notification of the decision or of the interview appointment.
In practice, the new notification procedure has created different problems, as Territorial Commissions were not promptly informed about accommodation transfers. Often, people moved from one reception centre to another found out about their appointment for the interview when the date scheduled by the Territorial Commission has already passed. In addition, many ASGI lawyers have experienced problems in notifications of privately housed asylum seekers, as notifications have often not been made.
Outcomes of the procedure
Even if the rules applicable are the same, the outcome of decisions may vary depending on the region.
The absence of analytical territorial statistics, however, does not allow to provide a more detailed analysis in this respect.
There are eight possible outcomes to the regular procedure, following additions and substantial changes by Decree Law 113/2018 and Decree Law 130/2020. Under the amended Article 32 of the Procedure Decree, the Territorial Commission may decide to:
- Grant refugee status;
- Grant subsidiary protection;
- Recommend to the Questura to issue a two-years “special protection” residence permit;
Decree Law 113/2018 had abolished the status of humanitarian protection by repealing the provision of the TUI concerning the issuance of a residence permit on serious grounds, in particular of a humanitarian nature or resulting from constitutional or international obligations of the Italian State.[12]
Decree Law 130/2020 made significant changes to the substance of the special protection and restored the obligations resulting from the constitutional or international obligations of the Italian State.[13]
Following the reform carried out by the L. 50/2023 special protection permits are now granted to persons who, according to the law, cannot be expelled or refouled.[14] This covers cases where a person risks being persecuted for reasons of race, sex, sexual orientation and gender identity, language, citizenship, religion, political opinions, personal or social conditions, or may risk being sent back to another country where he or she is not protected from persecution.[15] It also covers cases where a person risks to be sent to a country where there are reasonable grounds to believe that he or she risks being subjected to torture or inhuman or degrading treatments or if they recur the constitutional or international obligations referred to in Article 5 (6) TUI. Significantly, the decree law 20 of 10 March 2023, converted with amendments into Law 50 of 5 May 2023, cancelled the possibility to directly request this kind of permit to a Questura and to consider, in releasing such permits to stay, if there are good reasons to believe that the removal from the national territory involves a violation of the right to respect for his private and family life, unless that it is necessary for national security reasons, public order and safety as well as health protection.[16] Even if the amendment does not exclude the application of international and European guarantees, such as the application of Article 8 of ECHR, the new wording of the law will lead, according to ASGI, to a significative limitation in the number of cases in which this form of protection will be recognised.
Additionally, the Dl 20/2023 and the conversion L. 50/2023 changed the provisions related to the renewal of this permit. These permits will still be granted for two years and they are renewable but, according to the new law, beneficiaries will not be able to transform them in work permits (see Residence Permit).[17]
The new provisions however do not apply to the procedures already pending as of 10 March 2023. [18]
The law also specifies that for those titles which were released directly from Questura, the permits to stay will be renewed only for one time and for one year after which they can only be converted, including in a permit to stay for job reasons.[19]
- Recommend to the Questura to issue a permit to stay for health reasons;
According to Article 32 (3.1) of the Procedure Decree, as amended by Decree Law 130/2020 and L 173/2020, in case of rejection of the application for international protection, the Territorial Commission recommends to Questura to issue a permit to stay when serious psychophysical conditions or serious pathologies could cause significant damage to the health of the applicant in case of return to the country of origin or provenance.[20] The health conditions have to be ascertained through suitable documentation issued by a public health facility or by a doctor of the National Health Service.
The duration of health permits is parameterized to the time certified by the health certification, in any case not exceeding one year. They are renewable but not convertible into a work permit to stay. They are valid only on the national territory.
2. Inform the Public Prosecutor to the Juvenile Court to start the procedure to issue a permit to stay for assistance to minors.[21]
In cases where the application for international protection is not accepted, the Territorial Commission evaluates the existence of reasons that allow the Juvenile Court to issue a permit to minor’s family members for reasons related to the psychophysical health and development of the minor who is in the Italian territory and informs the public Prosecutor at the competent Juvenile Court.
This permit is issued on a fixed-term and can be changed into a work permit to stay.[22]
3. Reject the asylum application as unfounded;
4. Reject the application as manifestly unfounded;[23]
According to the Article 28-ter of the Procedure Decree, an application is deemed to be “manifestly unfounded” where the applicant, not belonging to a vulnerable category[24]:
- Has only raised issues unrelated to international protection;
- Comes from a Safe Country of Origin;
- Has issued clearly inconsistent and contradictory or clearly false declarations, which contradict verified information on the country of origin;
- Has misled the authorities by presenting false information or documents or by withholding relevant information or documents with respect to his or her identity and/or nationality that could have had a negative impact on the decision, or in bad faith has destroyed or disposed of an identity or travel document that would have helped establish his or her identity or nationality;
- Irregularly entered the territory, or irregularly prolonged his or her stay, and without justified reason, did not make an asylum application promptly;
- Refuses to comply with the obligation of being fingerprinted under the Eurodac Regulation;
- Is detained in a CPR for reasons of exclusion under Article 1F of the 1951 Convention, public order or security grounds, or there are reasonable grounds to believe that the application is lodged solely to delay or frustrate the execution of a removal order (see Grounds for Detention).[25]
- Reject the application on the basis that an internal protection alternative is available.[26]
For the internal protection alternative to apply, it must be established that in a part of the country of origin the applicant has no well-founded fear of being persecuted or is not at real risk of suffering serious harm or has access to protection against persecution or serious harm. In addition, he or she can safely and legally travel to that part of the country, gain admittance and reasonably be expected to settle there.
Prioritised examination and fast-track processing
Article 28 of the Procedure Decree, severely amended in 2020, provides that the President of the Territorial Commission, after a preliminary exam, identifies the cases to be processed under the prioritised procedure, when:
- The application is supposed to be well-founded;[27]
- The applicant is vulnerable, in particular if he or she is an unaccompanied child or a person in need of special procedural guarantees;
c The applicant comes from one of the countries identified by the CNDA that allow the omission of the personal interview when considering that there are sufficient grounds available to grant subsidiary protection. The competent Territorial Commission, before adopting such a decision, informs the applicant of the opportunity, within 3 days from the communication, to request a personal interview. In absence of such request, the Territorial Commission takes the decision.[28]
Following the reform, the law states that the President of the Territorial Commission makes a preliminary exam of the application but, in practice, the decision will still be taken on the basis of the documents already present in the asylum application file.
Practice shows that vulnerable applicants have more chances to benefit from the prioritised procedure, even though this possibility is more effective in case they are assisted by NGOs or they are identified as such at an early stage. With regard to victims of torture and extreme violence, the prioritised procedure is rarely applied, since these asylum seekers are not identified at an early stage by police authorities. In fact, torture survivors are usually only recognised as such in a later phase, thanks to NGOs providing them with legal and social assistance or during the personal interview by the determining authorities.
Regarding unaccompanied children, L 47/2017 has allowed a faster start of the procedure as it allows the manager of the reception centre to represent the child until the appointment of a guardian.[29] That said, according to ASGI’s experience, the prioritised procedure has not been widely applied to unaccompanied children.
Personal interview
The Procedure Decree provides for a personal interview of each applicant, which is not public.[30] During the personal interview the applicant can disclose exhaustively all elements supporting his or her asylum application.[31]
The Decree Law 130/2020, by amending Article 12 (1), provided for the possibility of hearings conducted by audio-visual means. [32] From the information available as of April 2022, none of the Commissions have adopted such procedure.
In practice, asylum seekers are systematically interviewed by the determining authorities. However, Article 12(2) of the Procedure Decree foresees the possibility to omit the personal interview where:
- Determining authorities have enough elements to grant refugee status under the 1951 Refugee Convention without hearing the applicant; or
- The applicant is recognised as unable or unfit to be interviewed, as certified by a public health unit or by a doctor working with the national health system. In this regard, the law provides that the personal interview can be postponed due to the health conditions of the applicant duly certified by a public health unit or by a doctor working with the national health system or for very serious reasons.[33] The applicant recognised as such is allowed to ask for the postponement of the personal interview through a specific request with the medical certificates.[34]
- For applicants coming from those countries identified by the CNDA, when considering that there are sufficient grounds to grant them subsidiary protection.[35] The competent Territorial Commission, before adopting such a decision, informs the applicant that he or she has the opportunity, within 3 days from the communication, to be admitted to the personal interview. In absence of such request, the Territorial Commission takes the decision to omit the interview. This provision is particularly worrying, considering that it derogates from the general rule on the basis of which the personal interview is also aimed to verify first whether the applicant is a refugee, and if not, the conditions to grant subsidiary protection.
According to the amended Article 12(1-bis) of the Procedure Decree, the personal interview of the applicant takes place before the administrative officer assigned to the Territorial Commission, who then submits the case file to the other panel members in order to jointly take the decision. Upon request of the applicant, the President may decide to hold the interview him or herself or before the Commission. In practice, the interview is conducted by the officials appointed by the Ministry of Interior.
Interpretation
In the phases concerning the registration and the examination of the asylum claim, including the personal interview, applicants must receive, where necessary, the services of an interpreter in their language or in a language they understand. Where necessary, the documents produced by the applicant shall be translated.[36]
At border points, however, these services may not always be available, depending on the language spoken by asylum seekers and the interpreters available locally. Given that the disembarkation of asylum seekers does not always take place at official border crossing points, where interpretation services are generally available, there may therefore be significant difficulties in promptly providing an adequate number of qualified interpreters able to cover different languages.
In practice, there are not enough interpreters available and qualified in working with asylum seekers during the asylum procedure. However, specific attention is given to interpreters ensuring translation services during the substantive interview by determining authorities. The Consortium of Interpreters and Translators (ITC), which provides this service, has drafted a Code of Conduct for interpreters.
Recording and transcript
The personal interview may be recorded. The recording is admissible as evidence in judicial appeals against the Territorial Commission’s decision. Where the recording is transcribed, the signature of the transcript is not required by the applicant.[37] Following Decree Law 13/2017, implemented by L 46/2017, the law states that the interview has to be taped by audio-visual means and transcribed in Italian with the aid of automatic voice recognition systems.[38] The transcript of the interview is read out to the applicant by the interpreter and, following the reading, the necessary corrections are made by the interviewer together with the applicant.
All of the applicant’s observations not implemented directly in the text of the transcript are included at the bottom of the document and signed by them. The transcript itself is signed only by the interviewer – or the President of the Commission – and by the interpreter.[39] The applicant does not sign the transcript and does not receive any copy of the videotape, but merely a copy of the transcript in Italian. A copy of the videotape and the transcript shall be saved for at least 3 years in an archive of the Ministry of Interior and made available to the court in case of appeal. The applicant can only access the tape during the appeal,[40] meaning that it is not available at the time of drafting the appeal.
The applicant can formulate a reasoned request before the interview not to have the interview recorded. The Commission makes a final decision on this request.[41] This decision cannot be appealed.[42] When the interview cannot be videotaped for technical reasons or due to refusal of the applicant, the interview is transcribed in a report signed by the applicant.[43]
In 2019 and 2020, interviews were still never audio- or video-recorded due to a lack of necessary equipment and technical specifications, for example on how to save the copies and transmit them to the courts.
In the 2021 EASO Asylum Report, there is a mention of a pilot project for video and audio recording of the interview with the prior agreement of the applicants being implemented in Rome. However, after EASO left the Commissions, from the information gathered by practitioners, there were no follow-ups to the project.
In the experience of ASGI members, many Commissions received the technical material necessary for recording and transcribing the interview in 2021, but the system was not yet in use at the end of April 2023.
This means that in practice after the interview a transcript is given to the applicant with the opportunity to make further comments and corrections before signing it and receiving the final report. The quality of this report varies depending on the interviewer and the Territorial Commission, which conducts the interview. Complaints on the quality of the transcripts are frequent.
Appeal
Appeal before the Civil Court
The Procedure Decree provides for the possibility for the asylum seeker to appeal before the competent Civil Court (Tribunale Civile) against a decision issued by the Territorial Commissions rejecting the application, granting subsidiary protection instead of refugee status or requesting the issuance of a residence permit for special protection instead of granting international protection.[45]
Specialised court sections
Decree Law 13/2017, implemented by L 46/2017, has established specialised sections in the Civil Courts, responsible for immigration, asylum and free movement of EU citizens’ cases.[46] Judges to be included in the specialised sections should be appointed on the basis of specific skills acquired through professional experience and training. EUAA and UNHCR are entrusted with training of judges, to be held at least annually during the first three years.[47]
The competence of the Court is determined on the basis of the location of the competent Territorial Commission, but also on the basis of the place where the applicant is accommodated (governmental reception centres, CAS, SAI and CPR).[48]
Rules for the lodging of appeals
The appeal must be lodged within 30 calendar days from the notification of the first instance decision and must be submitted by a lawyer.[49]
However, the time limit for lodging an appeal is 15 days for persons placed in CPR and negative decisions taken under the Accelerated Procedure.[50]
The appeal has automatic suspensive effect, except where:[51]
- The applicant is detained in CPR or a hotspot;
- The application is inadmissible;
- The application is manifestly unfounded;
- The application is submitted by a person coming from a safe country of origin;
- The application is submitted after the applicant has been apprehended in an irregular stay on the national territory and for the sole purpose of avoiding an imminent removal;
- The application is submitted by persons investigated or convicted for some of the crimes that may trigger to the exclusion of international protections pursuant to Article 28 -bis (1) (b) of the procedure decree.
More in general the appeal lacks the suspensive effect when the application is rejected on some of the grounds for applying the Accelerated Procedure with the sole exclusion of appeals against decision taken under the border procedure.
However, in those cases, the applicant can individually request a suspension of the return order from the competent judge. The court must issue a decision within 5 days and notify the parties, who have the possibility to submit observations within 5 days. The court takes a non-appealable decision granting or refusing suspensive effect within 5 days of the submission and/or reply to any observations.[52]
Amending Article 35(bis) (4) of the Procedure Decree, the Decree Law 130/2020 specified that the Court takes the decision in collegial composition.[53]
In practice, asylum seekers who file an appeal, in particular those who are held in CPR and those under the Accelerated Procedure, face several obstacles. The time limit of 15 days for lodging an appeal in those cases concretely jeopardises the effectiveness of the right to appeal since it is too short for finding a lawyer or requesting free legal assistance, and for preparing the hearing in an adequate manner. This short time limit for filing an appeal does not take due consideration of other factors that might come into play, such as the linguistic barriers between asylum seekers and lawyers, and the lack of knowledge of the legal system.
Moreover, a Moi Circular of 30 October 2020 ambiguously stated that before the 5 days given to Court to decide on suspension have elapsed, the applicant cannot be repatriated.[54] The wording seems to refer to the possibility that, after these days have elapsed, even without the judge having decided on the suspension request, repatriation can be carried out. In this sense, as registered by ASGI, some illegitimate practises were registered in Rome.
Additionally, before the 2020 reform, with a Circular of 13 January 2020, the Ministry of Interior considered that after the terms provided for Article 35-bis (4) of the Procedure Decree without the Judge’s decision on the suspension having intervened, the measures of removal could legitimately be adopted.
As highlighted by ASGI, these indications appear illegitimate in the light of Article 46 (8) of the Directive 2013/32/EU, which establishes the applicant’s right to remain on the national territory, until a judge decision on the suspension request has been taken and in light of Article 41, which provides for specific exceptions to this rule.[55]
After the appeal is notified to the Ministry of Interior at the competent Territorial Commission, the Ministry may present submissions (defensive notes) within the next 20 days. The applicant can also present submissions within 20 days.[56] The law also states that the competent Commission must submit within 20 days from the notification of the appeal the video recording and transcript of the personal interview and the entire documentation obtained and used during the examination procedure, including country of origin information relating to the applicant.[57]
In application of EU NEXT Generation Project, D.L. 80 of June 2021 – as amended by conversion Law n. 113 of August 2021 – provided for the reinforcement of the Courts Office personnel, with the implementation of the “Judicial Office” (Ufficio del Processo), a support office for judges and Courts administrations to which law clerks shall be deployed for 3 years starting from February 2022. They are also deployed to support the judges assigned to the Specialised sections on migration, with the objective of help reducing second instance backlog. According to an initial analysis, the UPP personnel provided substantial assistance to the specialised sections: they were tasked with identifying cases to be treated with priority; to carry out jurisprudential research and prepare models of decisions or motivation points; to catalogue decisions in databases; to research COI information and prepare the questions, together with EEUA personnel, in view of the applicant’s hearing. In some cases, the UPP staff also took the minutes of the hearing and supported the preparation of draft measures. In the court sections observed, these workers handled two to five cases a week.[58]
Hearing
According to the appeal procedure following Decree Law 13/2017, implemented by L 46/2017, oral hearings before the court sections are a residual option. The law states that, as a rule, judges shall decide the cases only by consulting the videotaped interview before the Territorial Commission. They shall invite the parties for the hearing only if they consider it essential to listen to the applicant, or they need to clarify some aspects or if they provide technical advice or the intake of evidence.[59] A hearing is also to be provided when the videotaping is not available or the appeal is based on elements not relied on during the administrative procedure of first instance.[60]
Since the adoption of Decree Law 13/2017, ASGI has claimed that the use of video recorded interviews, potentially replacing asylum seekers’ hearings by the court, does not comply with the right to an effective remedy provided by Article 46 of the recast Asylum Procedures Directive, as an applicant’s statements are often the only elements on which the application is based. Therefore, there is no certainty that judges will watch the videos of the interviews, and in any case, they will not watch them with the assistance of interpreters to understand the actual extent of applicants’ statements.
Since 2017, given that Territorial Commissions did not proceed by video-recording interviews, some courts held oral hearings with asylum seekers, as set out in the law in case the interview is not video-recorded.[61] However, many Civil Courts such as those of Naples and Milan interpreted the law as leaving discretion to the court to omit a hearing even if the videotape is not available.
In 2018, the Court of Cassation clarified that in such cases the oral hearing is mandatory and cannot be omitted,[62] but the same Court later established that it is not mandatory for the judge to interview the applicant, and the hearing can be limited to the apparition in Court of the lawyer.
Consequently, each specialised section has taken its own orientation regarding the need or not to hear the appellant again in cases where the law does not consider it mandatory.[63]
When the appellant is summoned to the hearing, the questions for the hearing are prepared by a researcher of the EUAA or UPP staff member assigned to the section, under the supervision of the judge.[64]
As far as cultural mediation in the hearing is concerned, only some courts allow the presence of cultural mediators provided by EUAA, while others never use this service and rely on voluntary interpreters identified and brought by the appellant; others make use of the EUAA cultural mediators service only for cases with a high level of complexity.
Since 2020, some Judges – applying Covid emergency rules that made it possible for civil proceedings[65] – substituted the oral hearing with written notes, some other Judges hold the hearing by remote connections.
The provisions allowing for written or remote hearings have been extended until the end of 2022.[66]
Then, from the beginning of 2023, the entry into force of the civil procedure reform (the so-called Cartabia reform) allowed the replacement of the hearing with written notes in each procedure.[67]
It is up to the judge in charge of the case to decide how to run the hearing, so different practices are observed even in the same Court. In any case, it is possible for the lawyer to require for the hearing to be held in presence, justifying the reasons for such a request.
Decision
Practitioners report that decision-making at second instance is not consistent throughout the territory, and visible discrepancies can be observed regarding outcomes of appeals depending on the Court responsible. The absence of statistics concerning the outcome of second instance cases, however, does not allow to elaborate a detailed analysis regarding the issue.
The Civil Court can either reject the appeal or grant a form of protection to the asylum seeker. Under the law, the decision should be taken within 4 months.[68]
No statistics on the average length of international protection proceedings are available, but one analysis published by Ministry of Justice referred to the period between 1 January 2016 and 30 June 2020 provides some insights on the topic.[69]
According to what the Courts reported, in the first five years of operation of the specialised sections, the objective of the reasonable duration of international protection proceedings was not met, mostly due to a lack of resources. In fact, the number of proceedings for international protection was considerable: between 2017 and 2020, an average of over 49,500 cases were registered per year, representing around 20% of the total number of civil cases. Out of these, a decision was issued on around 32,800 proceedings per year.[70]
Consequently, ASGI lawyers registered an increase in the duration of the judicial procedure, with some Courts that in 2021 and 2022 have scheduled the hearing even 4 years after the introduction of the case (e.g. Turin) and others leaving the pending cases waiting for a hearing to be scheduled even more than 3 years (eg. Milan and Trieste).[71]
In the period between 2016 and the first half of 2020, 37.5% of the appeals were upheld.[72]
According to Eurostat data, the total number of final decisions on asylum applications in 2022 was 19,335,out of which 5,360 (27%) were rejections.[73]
Onward appeal
Decree Law 13/2017, implemented by L 46/2017, abolished the possibility to appeal a negative Civil Court decision before the Court of Appeal (Corte d’Appello). This provision applies to appeals lodged after 17 August 2017.
In case of a negative decision of the Court, the asylum seeker can only lodge an appeal before the Court of Cassation for matters of law within 30 days, compared to 60 days granted before the reform.[74]
The onward appeal is not automatically suspensive. Nevertheless, the Court of Justice of the European Union (CJEU) found in its F.R. judgement of 27 September 2018 that this provision complies with EU law as the recast Asylum Procedures Directive does not contain any provisions requiring a second level of jurisdiction against negative asylum decisions and therefore does not require any automatic suspensive effect for onward appeals.[75]
The request for suspensive effect is examined by the judge who rejected the appeal at Civil Court level and has to be submitted within 5 days from the notification of the appeal.[76]
The 2017 reform sparked strong reactions from NGOs,[77] and even from some magistrates. Cancelling the possibility to appeal the Civil Court decisions at Court of Appeal, making the hearing of the applicant a mere residual option, further complicating access to free legal aid, reducing the time for appeal to the Court of Cassation, and entrusting the assessment of the request for suspensive effect of onward appeals to the same Civil Court judge who delivered the negative first appeal ruling, drastically reduces the judicial protection of asylum seekers. The Cassation Section of the Magistrates’ National Association (Associazione Nazionale Magistrati) also highlighted the unreasonableness of the choice to abolish the second level of appeal, which is still provided for civil disputes of much lower value if compared to international protection cases, bearing in mind that the procedure before the Court of Cassation is essentially a written procedure.
The reform has had a visible impact on the caseload before the Court of Cassation. In the report on the administration of justice in 2020 published in 2021, the President of the Court underlined how the most recent problem in the activity of the Court of Cassation was the enormous increase in the number of petitions concerning international protection matters.
The number of petitions rose from 374 appeals in 2016 to 10,341 in 2019, decreasing again to 935 in 2020[78] and 3,679 in 2021.[79] However, in 2022 there was a substantial decrease, with 1,495 new cases registered.[80]
Regarding the outcomes, in 2022 the acceptance percentage rate of appeals related to international protection was lower than the general average (21.1% in 2022 compared to the general figure equal to 27.8%), while the figure of inadmissibility was extremely high, reaching 71.9% in 2022.[81]
The Court of Cassation ruling at United Sections, with decision n. 15177 published on 1 June 2021,[82] gave a very formalist interpretation of the provision of Article 35 bis c.13 of LD 25/2008 – as amended in 2017 – concerning the power of attorney for the Cassation procedure in international protection cases.[83] The interpretation given by the Court will affect the admissibility of many pending cases, as it established that when bringing a case to the Court of Cassation, the lawyer has to expressly certify not only the client’s signature on the specific power of attorney, but also that the date is posterior to the judgement appealed.
The third Section of Court, however, submitted a question regarding the constitutionality of the interpretation given to the provision by the United Sections to the Constitutional Court.[84]
The Constitutional Court, with Decision n. 13 of 2022, rejected the question and declared that said interpretation was in line with constitutional provisions, ruling that “In the case of the contested provision, however, it cannot be considered that the declaration of inadmissibility of the appeal in the hypothesis of a special power of attorney, the date of which, after the pronouncement of the contested provision, has not been certified by the defender, constitutes an expression of excessive formalism in the application of the procedural rule.”[85]
ASGI Lawyers are concerned that the application of this provision as interpreted by the United Sections of the Court of Cassation, also to cases pending well before this formal interpretation came out, will cause the declaration of inadmissibility of many pending appeals, regardless of their well-foundedness.
A direct effect of this provision was that, as mentioned, the inadmissibility decisions issued by the Court of Cassation in 2022 was very high, and exceeded 70% of the total decisions.
In 2022, the Court of Cassation structured the collaboration with EUAA researchers in preparing periodic reviews of jurisprudence and started a collaboration with UNHCR relating to the circulation in Europe of most significant Italian rulings on the international protection topics.[86]
Regarding appeals lodged before the entry into force of L 46/2017, a second appeal on the merits can still be brought before the Court of Appeal. The Court of Cassation has clarified that these second-instance appeals follow the former procedure.[87]
Legal assistance
Legal assistance at first instance
According to Article 16 of the Procedure Decree, asylum seekers may benefit from legal assistance and representation during the first instance of the regular and prioritised procedure at their own expenses.
In practice, asylum applicants are usually supported before and sometimes also during the personal interview by legal advisors or lawyers financed by NGOs or specialised assisting bodies where they work. Legal assistance provided by NGOs depends mainly on the availability of funds deriving from projects and public or private funding.
A distinction should be made between national public funds and those which are allocated by private foundations and associations. In particular, the main source of funds provided by the State is the National Fund for Asylum Policies and Services, financed by the Ministry of Interior. The Procedure Decree provides that the Ministry of Interior can establish specific agreements with UNHCR or other organisations with experience in assisting asylum seekers, with the aim to provide free information services on the asylum procedure as well on the revocation one and on the possibility to make a judicial appeal. These services are provided in addition to those ensured by the manager of the accommodation centres.[88] However, a difference exists between first accommodation centres (CAS and governmental centres) and SAI system: for the first ones both the old tender specification schemes and the new ones published by MoI on 24 February 2021 only recognise costs for a legal information services and no longer for legal support instead covered in SAI system. (see Forms and Levels of Material Reception Conditions).
National funds are also allocated for providing information and legal counselling at official land, air, sea border points and in the places where migrants arrive by boat.[89] In addition, some funds for financing legal counselling may also be provided from European projects / programmes or private foundations. However, it should be highlighted that these funds are not sufficient.
The lawyer or the legal advisor from specialised NGOs prepares asylum seekers for the personal interview before the determining authority, providing them all necessary information about the procedure to follow, detailing which questions that may be asked by the Territorial Commission members and supporting the asylum seeker in preparing for presenting relevant information concerning their personal account. Moreover, the lawyer or the legal advisor has a key role in gathering the information concerning the personal history of the applicant and the country of origin information, and in drafting a report that, when necessary, is sent to the Territorial Commission, in particular with regard to vulnerable persons such as torture survivors. In this regard, the lawyer or the legal advisor may also inform the determining authorities of the fact that the asylum seeker is unfit or unable to undertake the personal interview so that the Commission may decide to omit or postpone it.
Lawyers may be present during the personal interview but they do not play the same role as in a judicial hearing. The applicant has to respond to the questions and the lawyer may intervene to clarify some aspects of the statements made by the applicant.
Nevertheless, the vast majority of asylum applicants go through the personal interview without the assistance of a lawyer since they cannot afford to pay for legal assistance and specialised NGOs have limited capacity due to lack of funds. Assistance during the administrative steps of the asylum procedure cannot be covered by free legal aid.
Legal assistance in appeals
With regard to the appeal phase, free state-funded legal aid (patrocinio a spese dello Stato), is provided by law to asylum seekers who declare an annual taxable income below a certain amount, in 2022 €11,746 and whose case is not deemed manifestly unfounded.[90] Legal aid is therefore subject to a “means” and “merits” test.
Means test
The law specifies that in case of income acquired abroad, the foreigner needs a certification issued by the consular authorities of their country of origin.[91] However, the law prescribes that if the person is unable to obtain this documentation, he or she may alternatively provide a self-declaration of income.[92] Regarding asylum seekers, Article 8 PD 21/2015 clarifies that, in order to be admitted to free legal assistance, the applicant can present a self-declaration instead of the documents prescribed by Article 79 PD 115/2002.
Merits test
In addition, access to free legal assistance is also subject to a merits test by the competent Bar Association which assesses whether the asylum seeker’s motivations for appealing are not manifestly unfounded.[93] In the last years no particular impediments were reported in accessing legal aid at this stage.
Moreover, it may occur that the applicant is initially granted free legal aid by a Bar Council but, as prescribed by law, the Court revokes the decision if it considers that the admission requirements assessed by the Bar Association are not fulfilled.[94] The Court of Cassation has ruled that the withdrawal of legal aid may only be ordered after a concrete assessment of the circumstances of the case, fulfilling both criteria of being manifestly unfounded and gross negligence.[95]
L 46/2017 has substantially curtailed access to legal aid, as it reverses the rule applicable to all other proceedings. It establishes that, when fully rejecting the appeal, a judge who wishes to grant legal aid has to indicate the reasons why he or she does not consider the applicant’s claims as manifestly unfounded.[96]
The evaluation of the merits in order to grant legal aid at Cassation stage is generally stricter.
A declaration of inadmissibility of the appeal constitutes reason to revoke legal aid. As many Cassation appeals are rejected on inadmissibility grounds, due to the formalism connected with such kind of proceeding, legal aid is often revoked once the case is rejected on these grounds.
Applicants who live in large cities have more chances to be assisted by specialised NGOs or legal advisors compared to those living in remote areas, where it is more difficult to find qualified lawyers specialised in asylum law. In the Italian legal system, the assistance of a lawyer is essential in the appeal phase. Concretely the uncertainty of obtaining free legal aid by the State, as well as the delay in receiving State reimbursement discourages lawyers from taking on the cases. In some cases, lawyers evaluate the individual case on the merits before deciding whether to appeal the case or not.
[1] Article 27(2)(3) Procedure Decree.
[2] Eurostat, Final decisions on asylum applications, available at: bit.ly/41jIZ7A.
[3] Eurostat, First instance decisions on asylum applications by type of decision, available at: bit.ly/3MUJwZ4.
[4] Article 23-bis Procedure Decree, inserted by Article 25 Reception Decree.
[5] Article 2(1)(b-bis) Procedure Decree, inserted by Article 9 Decree Law 113/2018 as amended by L 132/2018.
[6] This is a preliminary examination governed by Article 29(1-bis) Procedure Decree, to which Article 23-bis expressly refers.
[7] Article 23-bis Procedure Decree, inserted by Article 25(r) Reception Decree.
[8] Article 11(3) Procedure Decree et seq, as amended by Article 6 Decree Law 13/2017 as amended by L 46/2017.
[9] Article 11(3) Procedure Decree, as amended by Article 6 Decree Law 13/2017 and L 46/2017.
[10] Article 11(3-bis) Procedure Decree, as amended by Article 6 Decree Law 13/2017 and L 46/2017.
[11] Article 11(3-ter) and (3-quater) Procedure Decree, as amended by Article 6 Decree Law 13/2017 and L 46/2017.
[12] Article 5(6) TUI, was amended Decree Law 113/2018 but is has been again amended by Decree Law 130/2020 reintroducing the obligation to consider, before rejecting a permit to stay, constitutional and international obligations of the Italian State.
[13] Article 5 (6) as amended by Decree Law 130/2020 and L 173/2020.
[14] Article 32(3) Procedure Decree, as amended by Decree Law 130/2020 and L 173/2020.
[15] Articles 19(1) as amended by Decree Law 130/2020 and L. 173/2020.
[16] Article 19 (1.1) TUI as amended by DL 20/2023 converted into L. 50 of 5 May 2023.
[17] Article 32 of the Procedure Decree and 6 of the TUI both as amended by DL 20/2023 converted into L. 50/2023.
[18] Article 7 (2) DL 20/2023.
[19] Article 7 (3) DL 20/2023.
[20] Article 32 (3.1) Procedure Decree recalls the requirements referred to in Article 19 TUI (2) (d-bis) which excludes the expulsion or extradition of foreigners who are in such health serious conditions.
[21] Article 32 (3.2) Procedure Decree introduced by Decree Law 130/2020 and L 173/2020 and referring to Article 31 (3) TUI.
[22] Article 6 (1 bis) TUI introduced by Decree Law 130/2020 and L 173/2020.
[23] Article 32(1)(b-bis) Procedure Decree, as amended by Decree Law 113/2018 and L 132/2018.
[24] According to Article 28 ter as reformed by Decree Law 130/2020 and L 173/2020 the provision does not apply to people with special needs, referring to Article 17 Reception Decree.
[25] Article 28-ter(g) Procedure Decree, citing Article 6(2)-(3) Reception Decree.
[26] Article 32(1)(b-ter) Procedure Decree, inserted by Decree Law 113/2018 and L 132/2018.
[27] Before the reform the law stated that it applied to applications likely to be well founded.
[28] Article 28(2) C Procedure Decree, as amended by Decree Law 130/2020 and L. 173/2020.
[29] Article 6(3) L 47/2017.
[30] Article 12(1) Procedure Decree; Article 13(1) Procedure Decree.
[31] Article 13(1-bis) Procedure Decree, inserted by the Reception Decree.
[32] Article 12 (1) as amended by Decree Law 130/2020 and L 173/2020.
[33] Article 12(3) Procedure Decree, as amended by the Reception Decree.
[34] Article 5(4) PD 21/2015.
[35] Article 12(2-bis) Procedure Decree, read in conjunction with Article 5(1-bis).
[36] Article 10(4) Procedure Decree, as amended by the Reception Decree.
[37] Article 14(2-bis) Procedure Decree, inserted by the Reception Decree.
[38] Article 14(1) Procedure Decree, as amended by Article 6 Decree Law 13/2017 and L 46/2017.
[39] Article 14(2) Procedure Decree, as amended by Article 6 Decree Law 13/2017.
[40] Article 14(5) Procedure Decree, as amended by Article 6 Decree Law 13/2017.
[41] Article 14(6-bis) Procedure Decree, as amended by Article 6 Decree Law 13/2017 and L 46/2017.
[42] Article 14 (6 bis) Procedure Decree.
[43] Article 14(7) Procedure Decree, as amended by Article 6 Decree Law 13/2017 and L 46/2017.
[44] Information concering 2020 extracted from tables of the article: L. Minnitii, ‘L’ufficio per il processo nelle Sezioni distrettuali specializzate di immigrazione e protezione internazionale: una straordinaria occasione di innovazione a supporto della tutela dei diritti fondamentali degli stranieri’, 28 October 2021, available at: https://bit.ly/37VFUEi.
[45] Articles 35(1) and 35-bis(1) Procedure Decree.
[46] Article 1 Decree Law 13/2017, as amended by L 46/2017.
[47] Article 2(1) Decree Law 13/2017, as amended by L 46/2017.
[48] Article 4(3) Decree Law 13/2017, as amended by L 46/2017.
[49] Article 35-bis(2) Procedure Decree, as amended by Decree law 130/2020.
[50] Ibid.
[51] Article 35-bis(3) Procedure Decree, , as amended by Decree Law 130/2020.
[52] Article 35-bis (4) Procedure Decree.
[53] Article 35 (bis) (4) as amended by Decree >Law 130/2020 and referring to Article 3 (4-bis) Decree Law 13/2017 and L. 46/2017.
[54] Moi Circular of 30 October 2020 no. 9075580
[55] ASGI, Asilo e procedure accelerate: commento alla circolare del Ministero dell’Interno, 6 March 2020, available in Italian at: https://bit.ly/2zfAv9L.
[56] Article 35-bis(7) and (12) Procedure Decree.
[57] Article 35-bis(8) Procedure Decree.
[58] L. Perilli, Le sezioni specializzate in materia di immigrazione a cinque anni dalla loro istituzione. Un’indagine sul campo, in Diritto Immigrazione e Cittadinanza, n. 1/2023, available in Italian at bit.ly/3mtqXRa.
[59] Article 35-bis Procedure Decree, introduced by Article 6(10) Decree Law 13/2017 and L 46/2017.
[60] Article 6(11) Decree Law 13/2017.
[61] CSM, Monitoraggio sezioni specializzate, October 2018, 27-28.
[62] Court of Cassation, 1st Section, Decision 28424/2018, 27 June 2018, available in Italian at: https://bit.ly/2G6XwuS; Decision 17717/2018, 5 July 2018, available in Italian at: https://bit.ly/2GfMYeb. See also: EDAL, Italy – Supreme Court of Cassation, 27 June 2018, no. 28424, available at: https://bit.ly/36vKlAn.
[63] Art. 35-bis, (10) Procedure Decree
[64] L. Perilli, mentioned available in Italian at: bit.ly/3mtqXRa.
[65] Law Decree 17 March 2020, n. 18, available in Italian at: https://bit.ly/3GkdteG.
[66] Extension to the end of 2022 was provided by Decree Law n. 228 of 30 December 2021 available in Italian at: https://bit.ly/38Ulwna.
[67] Article 127-ter of the Code of Civil Procedure, introduced by Legislative Decree no. 149 of 10 October 2022
[68] Article 35-bis(13) Procedure Decree.
[69] Ministry of Justice, Analisi procedimenti in materia di protezione internazionale, available in Italian at: https://bit.ly/3CMzIcp.
[70] L. Perilli, Le sezioni specializzate in materia di immigrazione a cinque anni dalla loro istituzione. Un’indagine sul campo, in Diritto Immigrazione e Cittadinanza, n. 1/2023, available in Italian at: bit.ly/3mtqXRa.
[71] The information are confirmed in the publication “L. Minnitii, ‘L’ufficio per il processo nelle Sezioni distrettuali specializzate di immigrazione e protezione internazionale: una straordinaria occasione di innovazione a supporto della tutela dei diritti fondamentali degli stranieri’, 28 October 2021, available at: https://bit.ly/37VFUEi.
[72] M. Giovannetti, I perimetri incerti della tutela: la protezione internazionale nei procedimenti amministrativi e giudiziari, in Questione Giustizia, 3 May 2021, available at: bit.ly/3L1TiHo.
[73] Eurostat, Final decisions on asylum applications, available at: bit.ly/41CRnPb.
[74] Article 35-bis(13) Procedure Decree.
[75] CJEU, Case C-422/2018 F.R. v Ministero dell’interno – Commissione Territoriale per il riconoscimento della Protezione Internazionale presso la Prefettura U.T.G. di Milano, Judgment of 27 September 2018, EDAL, available at: https://bit.ly/2D1oGCE.
[76] Article 35-bis(13) Procedure Decree.
[77] See ASGI and Magistratura Democratica, ‘D.L. 13/2017, sempre più distanza tra giudici e cittadini stranieri’, February 2017, available in Italian at: http://bit.ly/2moJoWs; Antigone, ‘Il pacchetto Minniti calpesta i diritti’, 12 February 2017, available in Italian at: http://bit.ly/2l7pjUo.
[78] Court of Cassation, Report on the administration of justice in the year 2020, final remarks, 29 January 2021, available at: https://bit.ly/3tEh7ZT.
[79] Court of Cassation report on administration of justice in the year 2021, available at: https://bit.ly/3ycmqG1.
[80] Court of Cassation, report on administration of Justice in the year 2022, available at: bit.ly/3L5w2sn.
[81] Ibid.
[82] Court of Cassation, decision n. 15177 of June 2021, available in Italian at: https://bit.ly/3Jf43TH.
[83] Art 35 bis c. 13 in the relevant part reads “The power of attorney for litigation for the proposition of the appeal for cassation must be conferred, under penalty of inadmissibility of the appeal, after the communication of the contested decree; to this end, the defender certifies the release date in his favour of the same power of attorney”.
[84] The III section Court of Cassation application is available – commented – at: https://bit.ly/3tbN1jt.
[85] Constitutional Court, Decision n. 13 of 2022, available in Italian at: https://bit.ly/36nS8Ec.
[86] Court of Cassation, report on administration of Justice in the year 2022, available at: bit.ly/3L5w2sn.
[87] Court of Cassation, Decision 669/2018, 12 January 2018.
[88] Article 10(2-bis) Procedure Decree.
[89] Article 11(6) TUI.
[90] Article 16(2) Procedure Decree.
[91] Article 79(2) PD 115/2002.
[92] Article 94(2) PD 115/2002.
[93] Article 126 PD 115/2002.
[94] Article 136 PD 115/2002.
[95] Court of Cassation, Decision 26661/2017, 10 November 2017.
[96] Article 35-bis(17) Procedure Decree.