Author
General (scope, criteria, time limits)
Article 29 of the Procedures Decree sets out the grounds for inadmissibility. Decree Law 130/2020 has amended Article 29-bis introduced by Decree Law 113/2018 to the Procedures Decree, setting out an additional inadmissibility ground (see ground 4). Decree Law 20/2023 has amended Article 29 Procedures Decree and DL 133/2023 has significantly amended Article 29 – bis of the Procedure Decree, applicable when a subsequent request is submitted during the execution of the removal order.
The Territorial Commission may declare an asylum application inadmissible where the applicant:
- Has already been recognised refugee or subsidiary protection status[1] by a state party according to the 1951 Refugee Convention and can still enjoy such projection;[2]
- Has made a Subsequent Application after a decision has been taken by the Territorial Commission, without presenting new elements or new evidence concerning his or her personal condition or the situation in his or her country of origin which make it significantly more likely that the person will benefit from international protection, unless the applicant allege to have been unable – without fault – to present such elements or evidence at the previous application or during the appeal procedure.[3]
- Has made a Subsequent Application during the execution of an imminent removal order (Article 29-bis).[4]
- Has made a subsequent application after the previous application has been terminated by the Territorial Commission after the expiry of 9 months from suspension on the basis that the applicant was unreachable (irreperibile) for unjustified leaving of the reception or detention centres and failure to attend the hearing (art.23 bis Procedure Decree). In this case the President can declare the application inadmissible by evaluating reasons for being unreachable.[5]
- Has made a subsequent application after the previous application has been terminated with a reject by the Territorial Commission in case the applicant was privately accommodated and they failed to explain, within 10 days from the discovery of the hearing date, the justified reasons for which they had not been aware of the hearing.[6]
The President of the Territorial Commission shall conduct a preliminary assessment of the admissibility of the application, to ascertain whether new relevant elements have emerged or have been submitted by the applicant to the granting of international protection and to evaluate whether the delay in the submission of such new elements or evidence can or cannot be attributed to the applicant’s fault, who needs to provide specific evidence that it cannot be attributed to them.[7]
If the applicant has already been recognised as a refugee or subsidiary protection status holder, the law provides that the President of the Territorial Commission shall set the hearing of the applicant to evaluate the reasons given to support the admissibility of the application in the specific case.[8]
Even if the law distinguishes the phases of the preliminary assessment, attributed to the President, and the decision, attributed to the Commission, in some cases the Presidents of the Territorial Commissions have taken the decisions of inadmissibility on their own. With an interim decision of 1st March 2024, the Civil Court of Trieste clarified that such decisions of inadmissibility have to be taken by the Territorial Commission and not by the President.[9] In other cases, according to ASGI’s experience, CT Presidents have omitted the preliminary assessment.
In case of a first subsequent application made during the execution of an imminent removal order, the Procedures Decree has been amended by DL 133/2023. According to Article 29 bis of the Procedure Decree law, the application must be immediately sent to the President of the competent Territorial Commission, who must conduct a preliminary assessment of the admissibility of the application, within three days, while assessing the risks of direct and indirect refoulement. The application is declared inadmissible in case no new elements have been added, pursuant to article 29, paragraph 1, letter b).
The exclusive role reserved for the President of the Territorial Commission, and not for the Territorial Commission itself, appears inconsistent with the Procedure Decree.[10]
ASGI is of the opinion that, Article 29-bis of the Procedure Decree is likely to violate the recast Asylum Procedures Directive, as the lodging of a subsequent application for the sole purpose of delaying or frustrating removal is not among the grounds of inadmissibility in Article 33(2) of the Directive (see Subsequent application). The provision does not clarify which phase is considered the execution of an imminent removal order.[11] Moreover, worryingly, the law provides that in the event of an application declared inadmissible, the applicant can be detained[12] (see Detention).
More worryingly, DL 133/2023 amended Article 29 -bis introducing the paragraph 1-bis and giving specific power to the Head of Police Station to determine, except for the first subsequent application, if the asylum request is admissible.
The law now states that, in case the subsequent application is not the first one, where the applicant’s detention has been already validated by the Judge of the Peace (Giudice di Pace), the Questore (Head of Police Station), after asking for an opinion from the President of the Territorial Commission where the removal is taking place, immediately proceeds with the preliminary assessment of the application and declares it inadmissible, allowing the execution of the removal order, when there are no new relevant elements for the recognition of international protection pursuant to article 29, paragraph 1, letter b), and no grounds to apply the expulsion bans referred to in article 19 TUI arise. When there are new elements relevant for the recognition of international protection or the ban on expulsion, the competent Territorial Commission proceeds with the further examination.[13]
No suspensive effect is recognised to the appeal including a suspensive request in case of a decision that declares inadmissible or rejects, for the second time, a further subsequent asylum application pursuant to article 29, (1) b), or declaring the asylum application inadmissible pursuant to article 29-bis of the Procedure Decree.[14]
Personal interview
The law does not draw a distinction between the interview conducted in the regular procedure and the one applicable in cases of inadmissibility. However, following Decree Law 113/2018, implemented by L 132/2018, and more following Decree Law 133/2023 it is possible for certain Subsequent applications to be automatically dismissed as inadmissible without an interview.
Appeal
For applications dismissed as inadmissible, the law provides the possibility to submit an appeal to the specialized section of the competent Civil Court. The judicial procedure provided for accelerated procedure applies, which means that the time limit for appealing a negative decision is 15 days, and the appeal has no automatic suspensive effect.
Also, after the coming into force of L. 50/2023, the law provided that the submission of the appeal does not allow the applicant to legally remain in the national territory in case of appeals against decisions which refused or declared as inadmissible another subsequent application, after a first subsequent application had been refused or declared inadmissible.
The same happens when the appeal is submitted against a decision issued on the base of Article 29 bis of the Procedure Decree (subsequent application made during the execution of an imminent removal order).[15]
However, the decision taken on 29 April 2024 by the United Civil Sections of the Court of Cassation in a case related to a denial dismissed as manifestly unfounded due to the fact that the applicant came from a safe country of origin (See Safe countries) started bringing some changes. The Court stated that in case the accelerated procedure has not been respected by the Territorial Commission, the ordinary procedure will apply to the appeal, including the automatic suspensive effect.”[16]
Following this decision, some Civil Courts decided to apply the same principle to other cases: this is the case of the Civil Court of Catania which, on 2 May 2024, declared the measure of inadmissibility pursuant to Article 29 of Legislative Decree 25/2008 automatically suspended in application of the principle expressed by the United Sections of the Court of Cassation, considering that: “the same principle is applicable, by reason of the same ratio, also to the present case, concerning a decree of inadmissibility following a subsequent application, adopted without observing the terms of art. 28 bis of the Legislative Decree 25/2008″.[17]
Legal assistance
The rules and criteria for legal assistance are the same as in the Regular Procedure: Legal Assistance
[1] Art. 29 (1)(a) as amended by Law 23 December 2021, n. 238 (in G.U. 17/01/2022, n.12) includes subsidiary protection holders.
[2] Article 29(1)(a) Procedure Decree.
[3] Article 29(1)(b) Procedure Decree as amended by L. 50/2023.
[4] Article 29-bis Procedure Decree, inserted by Article 9 Decree Law 113/2018 and L 132/2018, amended by Decree Law 130/2020 and L. 173/2020 and by DL 133/2023.
[5] Article 23 bis (2) Procedure Decree.
[6] Article 12 (5) Procedure Decree.
[7] Article 29(1-bis) Procedure Decree, as amended by L 50/2023.
[8] Article 29 (1 bis) Procedure Decree as amended by L 50/2023.
[9] Civil Court of Trieste, interim decision of 1 March 2024
[10] It appears not consistent with the provision of Articles 4, 28 and 29 of the Procedure Decree.
[11] The Court of Cassation will rule on this issue following the order no. 11660/2020.
[12] Article 6 (2, a bis) Reception Decree, as amended by Article 3 (3) Decree Law 130/2020 and L. 173/2020. According to Decree Law 130/2020 the provision applies in the limits of available places in CPRs.
[13] Article 29-bis (1 bis) introduced by DL 133/2023, converted into L 176/2023
[14] Article 35 bis (4) Procedure Decree.
[15] Article 35-bis(53) Procedure Decree, as amended by Decree Law 113/2018 and L 132/2018.
[16] Court of Cassation, United Civil Sections, Sentence no. 11399/2024 of 29 April 2024, available in Italian at https://l1nq.com/vQ78k.
[17] Civil Court of Catania, interim decision of 2 May 2024, case no. 13099/2023.