Author
Being part of the European Commission’s Agenda on Migration, the “hotspot” approach is generally described as providing “operational solutions for emergency situations”, through a single place to swiftly process asylum applications, enforce return decisions and prosecute smuggling organisations through a platform of cooperation among the European Union Agency for Asylum (EUAA), Frontex, Europol and Eurojust. Even though there is no precise definition of the “hotspot” approach, it is clear that it has become a fundamental feature of the relocation procedures conducted from Italy and Greece until September 2017, in the framework of Council Decisions 2015/1523 and 2015/1601 of 14 and 22 September 2015 respectively. This instrument enabled the relocation of more than 2,100 international protection seekers from Italy and Malta between 2019 and September 2021.[1]
Under the French six-month Council presidency, on 22 June 2022, twenty-one among EU Member States and associated countries signed a declaration of solidarity, containing a mechanism for voluntary solidarity contributions, in the form of relocation or other types of contributions, particularly financial contributions.[2]
Italy is expected to be the first beneficiary of this mechanism, with approximately 3,500 asylum seekers expected to be relocated to the participating member states. Despite this, just 117 asylum seekers were relocated to third countries in 2022.[3]
“Hotspots” managed by the competent authority have not required the construction and equipment of new reception facilities, operating instead from already existing ones.
By the end of 2022, four hotspots were operating in: Apulia (Taranto) and Sicily (Lampedusa, Pozzallo, and Messina). In 2020 and 2021, hotspots were temporarily partially or completely converted to quarantine facilities, with varying capacity and conditions. Messina’s hotspot was reopened in December 2022 after a period of being non-operational.
As of 28 of February 2023, the hotspots hosted 945 people in Sicily and 168 in Apulia.[4] At the same time, quarantine boats continued to be used as de facto hotspots during the year.[5] Use of quarantine vessels ended at the beginning of June 2022.[6]
The hotspot approach is used beyond hotspots centres. In October 2020, ASGI reported that the first line reception facility of Monastir, in Sardinia, was being used as a de facto detention facility; a further visit in April 2021 confirmed persisting criticalities.[7] In 2021, ASGI reported many criticalities at the “new border” of Pantelleria, where landed migrants are also channelled in hotspot-like procedures (see Place of Detention).[8]
In 2021, 44,242 persons entered the hotspots, compared to 28,884 in 2020, 7,757 in 2019 and 13,777 in 2018. People were mainly originating from Tunisia (14,562), Bangladesh (3,426) and Egypt (4,113). 8,934 were children, of which 1,645 unaccompanied minors.[9] Data on 2022 is not available at the moment of writing.
The monitoring of hotspots by NGOs was particularly difficult in 2020 and 2021 due to the limitations in the access to the structures, connected with the pandemic, that prevent access of external people to the facilities.[10]
In March 2022, ASGI’s delegation working on the InLimine Project visited Lampedusa’s hotspot, finding that overcrowding was so severe that people in the centre were forced to sleep on the ground due to the lack of available beds; the food provided resulted insufficient for the number of people hosted in the facility, and healthcare services were lacking; sanitary conditions were also below standard, thus compromising the protection of individual and collective health.[11]
The organisation also collected relevant data on hotspots at the beginning of 2022,[12] based on which it filed urgent appeals to the European Court of Human Rights, demanding the immediate transfer from the Lampedusa hotspot of three family units; the Court issued interim measures ordering the Italian government to immediately transfer one of the family units.[13]
As highlighted in a recent report by ASGI and other organisations, due to contractual terms such as the express obligation of confidentiality, the organizations active in the hotspots do not render public any information on critical issues that may arise in the implementation of the hotspot approach.[14]
The Consolidated Act on Immigration (TUI), as amended by L 46/2017, provides that foreigners apprehended for irregular crossing of the internal or external border or arrived in Italy after rescue at sea are directed to appropriate “crisis points” and at first reception centres. There, they will be identified, registered and informed about the asylum procedure, the relocation programme and voluntary return.[15] Decree Law 113/2018 has subsequently introduced the possibility of detention of persons whose nationality cannot be determined, for up to 30 days in suitable facilities set up in hotspots for identification reasons (see Grounds for Detention).[16]
The Standard Operating Procedures (SOPs) adopted in February 2016 and applying at hotpots also state that “where necessary, the use of force proportionate to overcoming objection, with full respect for the physical integrity and dignity of the person, is appropriate…”.[17] The law also provides that the repeated refusal to undergo fingerprinting constitutes a risk of absconding and legitimises detention in CPR (see Grounds for Detention).[18]
The same law also introduced a Border Procedure automatically applicable in case a person makes the application for international protection directly at the border or in transit areas – both to be identified and indicated by decree of the Ministry of Interior – after being apprehended for evading or attempting to evade controls. In this case, the entire procedure can be carried out directly at the border or in the transit area.[19]
Revealing the purpose of facilitating the application of an accelerated procedure to the people present in the hotspots, the Moi Decree issued on 5 August 2019 and published on 7 September 2019, identified among the transit and border areas, those ones close to hotspots: Taranto, Messina and Agrigento (Lampedusa hotspot).[20]
Persons arriving at hotspots are classified as asylum seekers or economic migrants depending on a summary assessment, mainly carried out either by using questionnaires (foglio notizie) filled in by migrants at disembarkation,[21] or by orally asking questions relating to the reason why they have come to Italy. People are often classified just solely on the basis of their nationality. Migrants coming from countries informally considered as safe e.g. Tunisia are classified as economic migrants, prevented from accessing the asylum procedure (see Registration) and issued return decisions.[22]
According to the SOPs, all hotspots should guarantee inter alia “provision of information in a comprehensible language on current legislation on immigration and asylum”, as well as provision of accurate information on the functioning of the asylum procedure. In practice, however, concerns with regard to access to information persisted in 2021 and 2022.
As of April 2019, as part of the monitoring project in Lampedusa, ASGI found that a different type of “foglio notizie” was released to some foreign citizens.[23] It was detailed to exclude all the reasons that would prevent the expulsion, completed before printing, and delivered to the persons not in the identification phase but immediately after their transfer from the hotspot, at their arrival in Porto Empedocle. In addition, migrants were asked to sign a paper called “scheda informativa”,[24] through which they declared they were not interested in seeking international protection. The declaration was only written in Italian language. After signing these documents, they were notified with deferred refoulement orders[25] and transferred to the CPR Trapani-Milo and Caltanissetta-Pian del Lago. As recorded by ASGI some of these persons had already asked asylum or expressed their intention to seek asylum before the transfers and before signing the “scheda informative”.[26] Some of them had sent, through ASGI, a certificated e-mail to the Questura of Agrigento, expressing their will to seek asylum.
ASGI monitored the procedure applied to some of these third country nationals, who, only in some cases, obtained the non-validation of their detention orders in CPR. In these cases, the Magistrates considered their request for asylum had not been instrumental in avoiding detention and expulsion orders because it was presented during their stay in the hotspot, therefore before these measures had been applied to them.[27] (See Judicial review of the detention order).
The same situation was monitored in 2020 regarding a second “foglio notizie” submitted to the migrants to be signed by them in order to revoke a previous international protection application will expressed in the first “foglio notizie”. Following two appeals to the Court of Cassation made within the ASGI In Limine project, the Court clearly stated that the compilation and signing of the second “foglio notizie” cannot affect the legal status of the foreign citizen as an applicant for international protection, resulting in the revocation or overcoming of the previously submitted application.[28]
In 2020 and 2021, hotspots were used as places for quarantine. ASGI has monitored and reported situations of overcrowding and de facto detention beyond the terms set by the quarantine. Problems concerning health risks in the hotspot arises also in newspapers in 2021.[29]
Other unlawful practices and violations were recorded in the most recent visit to the Lampedusa hotspot, conducted in March 2022 by ASGI’s delegation: legal information is not provided on an individual basis, but rather through a paper brochure delivered to the person without specific instructions being given. While waiting for the photo identification, groups of people stop in a designated area of the centre where, through the use of two monitors other information is provided. These tools in the presence of the usual large number of people do not ensure adequate information as imposed by Article 3, Legislative Decree 142/2015.[30]
Concerns have been expressed in a 2021 document by “InLimine” on the lack of gender related measures in the hotspots, specifically regarding Lampedusa hotspot.[31]
On 30 March 2023, the European Court of Human Rights published its judgement in the case J.A. and Others v. Italy, condemning Italy for violating Articles 3, 5 and 13 of its Convention. The facts from which the appeal stemmed originated from the arrival of four Tunisian citizens who, in October 2017, had been rescued at sea and transferred to the hotspot on the island of Lampedusa, where they had remained ten days in de facto detention: the applicants had not received any information about their legal status or right to seek asylum, and were held in conditions of extreme discomfort, sleeping in the open, with no respect of their privacy, without sufficient functioning toilets, as the number of people present in the hotspot exceeded its maximum capacity. Classified as irregular migrants through pre-identification and the ‘information sheet’ filled upon arrival, the four Tunisian citizens were forced to sign the notification of a deferred rejection decision, whose meaning they did not understand, and were subsequently transferred to Palermo’s airport and forcibly repatriated to Tunisia.
In the judgement, the Court condemned Italy and ruled that the conditions of overcrowding and lack of guarantees and services inside the Lampedusa hotspot constituted a violation of the prohibition of torture and inhuman and degrading treatment, as set out in article 3 of ECHR. On this point, the Court stated that the possible situation of contingent and frequent arrivals of foreign nationals on the island did not justify the degrading conditions in which the applicants were detained.
Since it was not possible for the applicants to leave the facility – except illegally through a hole in the fence of the centre at the time of the events – there was no full freedom of movement, with the result that the prolonged detention inside the hotspot in the absence of a legal basis produced a violation of the right to liberty and security under article 5 of ECHR.
Lastly, the Court condemned Italy on the ground of lacking evidence that the applicants’ individual circumstances were adequately taken into account or that they had the opportunity to defend themselves against the removal order. On this point, the Court noted that the signing of the notification of the return order and the completion of the information sheet are not sufficient elements to satisfy the guarantee provided by Article 4 prot. 4 ECHR prohibiting collective expulsions, thus violated by the Italian authorities.[32]
The Decree law 20/2023 introduced a new hypothesis for the detention of asylum seekers in hotspots, ruled by the new Article 6-bis of the Reception Decree. According to this provision, the applicant can be detained within a hotspot (or CPR) during the border procedure for the sole purpose of ascertaining their right to access the State’s territory. Detention may take place where the applicant has not presented a valid passport or other equivalent document, or does not provide for suitable financial guarantees.[33]
Among the modifications introduced by Decree-Law 20/2023, converted into Law 50/2023, is also the new formulation of article 10-ter, par. 1-bis, of TUI, which is part of the provisions for the identification of foreign nationals found to be illegally present in the national territory or rescued during rescue operations at sea. The first paragraph of the article already provided for the operational procedures regarding detention within the hotspots of foreign nationals found illegally crossing the internal or external border or reaching national territory following rescue operations at sea. The same can be applied for rescue and first assistance within these centres, where the photo-dactyloscopic and signal data are then taken and where information on the right to asylum, on the relocation program within other EU Member States and on the possibility of recourse to assisted voluntary return should be guaranteed.
The new paragraph 1-bis, expands the possibility of de facto detention, within “similar facilities”, providing that for the “optimal performance of the fulfilment of the tasks referred to in this Article, the third country nationals hosted at the crisis points referred to in paragraph 1 may be transferred to similar facilities on the national territory, for the performance of the activities referred to in the same paragraph”, specifying that the identification of these facilities will be made in agreement with the Ministry of Justice.
Legal access to the territory
Under Italian Law, it is not possible to apply for international protection from abroad, nor a specific visa is provided for people in need of protection that need to access the country.
In consideration of specific humanitarian crisis, such as the one existing in Afghanistan in 2021, the Italian Government implemented a measure known as “humanitarian corridors”, subscribing agreements with international organisations such as UNHCR and IOM, as well as NGOs, in order to allow a certain amount of people in need of protection to legally access the country. Humanitarian corridors are however not regulated by law, but only by Protocols created between the Minister of Interior, the Ministry of Foreigners affair and selected organizations, to which the Ministry delegates operations and the power to select the applicants that will be admitted. No official procedure that applicants should follow to be selected for the corridors is established, nor is there a procedure to challenge the non-admission to the list.
On 23 April 2021 a similar protocol was signed with the Community of Sant’Egidio, the Waldensian table and the Federation of Evangelical Churches for the arrival of 500 people from Libya. As of March 2022, 99 persons arrived in Italy through this procedure,[34] and 93 more arrived by November 2021.[35] From 2016 to 15 March 2023 through the mechanism of humanitarian corridors, Italy received 5,248 third country nationals, mainly from Lebanon (2486), Ethiopia (859) and Afghanistan (750).[36]
In 2021 humanitarian corridors to admit 1,000 refugees hosted in Lebanon were renewed.
The ones from Jordan, Niger and Ethiopia will be concluded as of May 2022. According to information collected by ASGI, at the time of writing, of the 600 people admitted to access the corridors, 530 were actually included in the programme and arrived in Italy.
In 2021, in some selected cases of Afghans escaping from their country of origin after August 2021, the Ministry of Foreign Affairs allowed the persons involved to apply for a humanitarian visa to access the territory in application of Article 25 of the Visa Code EU Regulation 810/2009. The Civil Court of Rome also issued an interim measure in December 2021 ordering to release a humanitarian visa to two young Afghans. However, following a complaint filed by the Ministry of Foreign Affairs, the Civil Court radically revised its position,[37] considering to revoke the previous order, for the following reasons: first of all art. 10, para. 3 of the Italian Constitution (the article which introduces the concept of Constitutional asylum) has no direct judicial application because the norm refers to the conditions for the exercise of the right. The Italian legal system already provides for rules on asylum. Furthermore, Italian law does not provide for individual humanitarian visas or the right of a foreigner outside the Republic to be admitted to receive international protection or asylum unless they are on a ship flying an Italian flag; finally, Article 25 of the Visa Code cannot be applied to a subsequent application for protection and the humanitarian visa is neither provided for by Italian law nor imposed by European legislation.
Regardless, with reference to the issue of entry visas for humanitarian reasons in situations of need for extraterritorial protection, on 24 May 2022, the Civil Court of Rome,[38] following an urgent appeal submitted by a Moroccan citizen who belongs to the Saharawi ethnic group, ordered the competent authorities to issue a visa that would allow the applicant to apply for protection in Italy. The court ruled that Italian authorities had such obligation based on the fact that the applicant had previously resided in Italy for several years and that he had maintained a strict link with Italy, inter alia due to working reasons.
Between 2021 and 2022, a total of 4,797 Afghans were evacuated by the Italian Government through the following operations: Operation “Aquila 1”, in June 2021 (involving 228 persons); Operation “Aquila Omnia”, between August and September 2021 ( 4,493 persons) Operation “Post Aquila” , September 2021, (16 persons); Operation Aquila Omnia BIS between November 2021 and December 2022 (60 persons).[39]
[1] EUAA, Annual Asylum Report (2022), available at: https://rb.gy/e1xyjt.
[2] Politiche dell’UE in materia di migrazione e asilo, Camera dei Deputati, Ufficio Rapporti con l’Unione Europea, available in Italian at: https://rb.gy/uyozqo.
[3] Ministry of Interior, Accoglienza migranti, Piantedosi: «I Paesi di primo ingresso non possono da soli sopportare l’onere esclusivo nella gestione dei flussi», 11 November 2022, available in Italian at: https://rb.gy/k35ep.
[4] Ministry of Interior, Cruscotto statistico giornaliero, 28 February 2023, available in Italian at: https://rb.gy/dzzw8l.
[5] Borderline Sicilia, “Approccio Hotspot e navi quarantena”, 9 December 2021, available in Italian at: https://bit.ly/3tbliiR. It should also be noted that the Government presented a tender in July for 5 ships to be operative until 31.12.2021, see: https://bit.ly/3MLsJFk.
[6] ADIF, Dalle navi quarantena alla detenzione amministrativa informale, 2 June 2022, available in Italian at: https://rb.gy/82ov6; see also Euronews, Migranti: verso lo stop alle navi quarantena, 30 May 2022, available in Italian at: https://rb.gy/1z6qg.
[7] ASGI, Un resoconto della visita di ASGI al Centro di accoglienza di Monastir, April 2021, available in Italian at: https://bit.ly/3CKQecX.
[8] ASGI, La frontiera di Pantelleria: una sospensione del diritto. Report del sopralluogo giuridico di ASGI, June 2021, available in Italian at: https://bit.ly/3tcSwyD.
[9] Report to Parliament Annexes to the yearly report of the National Guarantor for the rights of detained persons, June 2022, available at: https://rb.gy/alzvet.
[10] Borderline Sicilia, La Sicilia non dimentica – La situazione dei migranti e dei rifugiati alle frontiere esterne dell’Europa, March 2022, available at: https://bit.ly/3MMMlrT.
[11] ASGI, Report Lampedusa 2022: le criticità, August 2022, available in Italian at: https://rb.gy/litjw5.
[12] ASGI, L’hotspot di Lampedusa: alcuni riscontri dalla pubblica amministrazione, May 2022, available in Italian at: https://rb.gy/bdh5l0; see also ASGI, Report Lampedusa 2022: le criticità, August 2022, available in Italian at: https://rb.gy/litjw5.
[13] ASGI, Diritti violati nell’ hotspot di Lampedusa: per la CEDU il trattamento è disumano e degradante solo per le famiglie con minori, November 2022, available in Italian at: https://rb.gy/v0k8qw.
[14] ASGI et al., Scenari di frontiera: il caso Lampedusa, October 2018, available in Italian at: https://bit.ly/2UoWKDu. For an overview of critiques in previous years, see AIDA, Country Report Italy, 2017 Update, March 2018, 24-26.
[15] Article 10-ter TUI, inserted by Decree Law 13/2017.
[16] Article 6(3-bis) Reception Decree, as amended by Decree Law 113/2018.
[17] Ministry of Interior, Standard Operating Procedures applicable to Italian hotspots, February 2016, available at: http://bit.ly/2kt9JBX, para B.7.2.c.
[18] Article 10-ter(3) TUI, inserted by Decree Law 13/2017.
[19] Article 28-bis(2) (b) Procedure Decree, as amended by Decree Law 130/2020.
[20] Moi Decree 5 August 2019, Article 2
[21] See the foglio notizie at: http://bit.ly/1LXpUKv.
[22] See ASGI, In Limine report Ombre in Frontiera, March 2020. available in Italian at: https://bit.ly/3bYpTJF.
[23] See the foglio notizie at: https://cutt.ly/Kyv9KMr.
[24] See scheda informativa at: https://cutt.ly/Wyv9LQt.
[25] Article 10 (2) TUI Consolidated Act on Immigration.
[26] See ASGI, In Limine, La determinazione della condizione giuridica in hotspot, 29 April 2019, available in Italian at: https://cutt.ly/Iyv9XmV.
[27] See ASGI, In Limine, Esiti delle procedure attuate a Lampedusa per la determinazione della condizione giuridica dei cittadini stranieri, 29 mei 2019, available in Italian at: https://cutt.ly/Eyv9ChD.
[28] Court of Cassation, no. 18189/2020, available at: https://bit.ly/3tuhZQN; Court of Cassation decision no.18322/2020 available at: https://bit.ly/3vV7d7O.
[29] IlSicilia, “Migranti, esito vertice Procura di Agrigento: rischio sanitario in hotspot”, 30 August 2021, available in Italian at: https://bit.ly/360j7pM.
[30] ASGI, Report Lampedusa 2022: le criticità, August 2022, available in Italian at: https://rb.gy/litjw5.
[31] ASGI – InLimine, “A gender perspective on the Lampedusa Hotspot: the systematic and culpable violation of women’s rights”, 3 January 2022, available at: https://bit.ly/3Ia6gOJ.
[32] Case of J.A. and Others v. Italy, application n. 21329/2018, 30 March 2023, available at: https://rb.gy/8uq8v.
[33] Article 6 bis Reception Decree as amended by the DL 20/2023 converted into L. 50/2023.
[34] UNHCR, Arrivati in Italia 99 rifugiati e richiedenti asilo evacuati dalla Libia, available at: https://bit.ly/3w3I79M.
[35] Ministry of Interior, 93 richiedenti asilo in Italia dalla Libia in attuazione degli accordi sui corridoi umanitari, 25 November 2021, available at: https://bit.ly/38wLop1.
[36] Data on humanitarian corridors available in Italian at: https://bit.ly/3pZsfV8.
[37] ASGI, “Se i corridoi diventano l’unico strumento possibile di ingresso per motivi umanitari”, 3 June 2022, available in Italian at: https://bit.ly/41RHL2C.
[38] Civil Court of Rome RG 15094/2022, 24 of May 2022, available in Italian at: https://bit.ly/42LQftD.
[39] Report to Senate of the Minister of Interior, Piantedosi, communicated to the Presidency on 29 November 2022, available at: bit.ly/3yV5brW, 12.