Author
According to Article 23(1) of the Reception Decree, the Prefect of the region where the asylum seeker’s accommodation centre is placed may decide, on an individual basis and with a motivated decision, to revoke material reception conditions on the following grounds:[1]
- The asylum seeker did not present him or herself at the assigned centre or left the centre without notifying the competent Prefecture;
- The asylum seeker did not present him or herself before the determining authorities for the personal interview even though he or she was notified thereof;
- The asylum seeker has lodged a subsequent asylum application in Italy after a final decision on a previous application has been taken;
- The authorities find that the asylum seeker possesses sufficient financial resources;
Law 50/2023 amended the Reception Decree by cancelling the provision according to which a serious violation of the internal regulation of the reception centre or violent behaviour by the asylum seeker could motivate the withdrawal of reception measures.[2]
In recent years, several judicial decisions had underlined how the provision was contrary to the Reception Directive.
According to the new rules, this kind of behaviour can instead motivate a reduction of reception conditions,[3] to be adopted on an individual basis and in accordance with the principle of proportionality (Art. 23, co. 2-bis, Legislative Decree No. 142/2015).
In particular, the following measures can be put in place:
- a) temporary exclusion from participation in the activities organised by the managing body;
- b) temporary exclusion from one or more of the services required by law for asylum seekers, with the exception of material reception;
- c) suspension, from 30 days to six months, of economic benefits.
Among the novelties introduced in this regard by Law No. 50/2023 is also the provision that the decisions of reduction and revocation of reception measures have to be communicated to the competent Territorial Commission.
The law does not provide for any assessment of destitution risks when withdrawing reception. However, while assessing the withdrawal and the reduction of reception conditions, the Prefect must take into account the specific conditions of vulnerability of the applicant.[4]
According to ASGI’s experience, in most cases Prefects do not conduct an assessment regarding the risk of destitution before disposing the withdrawal of reception conditions.
Asylum seekers may lodge an appeal before the Regional Administrative Court (Tribunale amministrativo regionale) against the decision of the Prefect to withdraw material reception conditions.[5] To this end, they can benefit from free legal aid.
In recent years, available figures showed an overly broad use of withdrawal provisions. According to an investigation carried out by Altreconomia since 2017 and updated in 2019, based on data from 60 Prefectures out of 106, between 2016 and 2019, at least 100,000 asylum seekers and beneficiaries of international protection lost the right to accommodation in reception centres. No data are available for the period 2020-2023.
According to ASGI’s experience, following the legislative reform related to the serious violation of the internal regulation of the reception centre or violent behaviour no longer allowing withdrawal decisions, withdrawal decisions based on the supposed sufficiency of personal resources increased.
Departure from the centre
According to the Reception Decree, when asylum seekers fail to present themselves to the assigned centre or leave it without informing the authorities, the centre managers must immediately inform the competent Prefecture.[6] In case the asylum seeker spontaneously presents him or herself before police authorities or at the accommodation centre, the Prefect could decide to readmit them to the centre if the reasons provided are due to force majeure, unforeseen circumstances or serious personal reasons.[7]
Certain Prefectures have strictly interpreted this ground:
Lazio: in the case of a Bangladeshi asylum seeker who had found an evening job and had not been able to sign the daily form to attest his presence, the Administrative Court for Lazio, recalling the decision taken by the Council of the State (Consiglio di Stato) on 13 July 2022, no. 5492, clarified, with a decision of 13 September 2023, that it is necessary to distinguish between abandonment and absence from the center. The court clarified that being absent from the centre for one night cannot be configured as abandonment, given the action would be lacking the psychological element of wanting to abandon the reception facility.[8]
Veneto: in the case of an asylum-seeking woman who was a trafficking victim, who had left the centre because of the criminal organisation that had forced her into prostitution, and which she had later reported to police, the prefecture of Padua had not recognized force majeure, and remained silent on the request for reinstatement of the reception measures. The Administrative Regional Court of Veneto, with a decision of 11 November 2020, accepted the appeal, ordering the Prefecture to adopt a decision and, pending the decision, to arrange a provisional reception for the lady.[9]
Campania: On 16 June 2017, the Prefecture of Naples adopted a new regulation to be applied in CAS. The regulation provides for the “withdrawal of reception measures” in case of unauthorised departure from the centre even for a single day, also understood as the mere return after the curfew, set at 22:00, and at 21:00 in spring and summer. ASGI has challenged the regulation before the Council of State claiming a violation of the law, as the Prefecture has effectively introduced a ground for withdrawal of reception conditions not provided in the law but the Council of State rejected the appeal believing that the regulation did not automatically lead to the withdrawal of the reception measures, as the recipients were allowed to represent their reasons to the administration.[10]
Tuscany: As of 14 May 2019, the Council of State (Consiglio di Stato) confirmed the decision of the Administrative Court of Tuscany against a Prefecture of Tuscany and accepted the appeal lodged by an asylum seeker whose reception conditions had been withdrawn due to the absence of one night from the reception centre. The Council of State noted that this behaviour should be considered a departure from the centre and not abandonment and that as such it can only cause the withdrawal of the reception conditions if duly justified as a serious violation of the house rules.[11]
On 9 May 2022, the Administrative Court of Tuscany overturned the withdrawal where the applicant demonstrated not having understood the consequences deriving from abandoning the structure.[12]
Friuli Venezia Giulia: in September 2023, the Prefect of Gorizia withdrew reception conditions to an asylum seeker who had left the reception facility in the evening time and returned after two days having been placed under arrest. In December 2023, after the submission of the appeal, the Prefecture restored the reception measures according to the rule established by the art. 23 (3) of the Reception Decree. The Friuli Venezia Giulia Court therefore declared the case resolved and rejected the request for compensation.[13]
Lombardy: As reported by NAGA,[14] during 2019 the Prefecture of Milan has started a greater control of the night registers, exerting pressure on the CAS centres’ management so that individual absences had to be immediately communicated. As a result, the centres no longer have any chance to manage the guests’ absence, in the light of their personal situation. As of 19 February 2020, the Administrative Court of Lombardy cancelled the withdrawal decision adopted by the Prefecture of Milan on 6 November 2019, observing that the absence from the facility for one night does not mean an abandonment of the centre and that in any case the measure violates Article 20 of the Reception Directive because it is not proportionate and it does not ensure respect for human dignity.[15]
On 5 March 2024, the Administrative Court of Lombardy presented a request for a preliminary ruling to the CJEU regarding the possibility of deciding to revoke the reception measures due to failure of asylum seekers to present themselves to the assigned centre. The court asked the CJEU to clarify whether this decision, taken in this case due to failure to accept the transfer to another centre, is compatible with the need to prevent any damage to the basic life needs of the asylum seeker (according to Article 20 of the Reception Conditions Directive).[16]
Violation of house rules and violent behaviour
As mentioned, the violation of the house rules of the centre or of violent behaviour cannot, according to the new legislation (L. 50/2023), motivate a withdrawal of reception measures but only a reduction of reception conditions. The manager of the reception facility informs the asylum seeker and sends a report to the Prefecture on the facts that can motivate the potential reduction of reception conditions.[17]
After Law 50/2023 came into force in May 2023, no cases of reduction of reception conditions have been recorded by ASGI.
The T.A.R. of Campania, with decision no. 4353 of 17 July 2023, decided to grant an asylum seeker who had received by the Prefecture of Benevento a withdrawal of reception measures in 2022 based on the violation of the rules of the centre, a compensation of 3,000 euros as moral damage and 600.00 euros as material damage for the lack of pocket money.[18]
Possession of sufficient resources
A worrying practice relates to withdrawal of reception conditions for reasons connected to the possession of sufficient resources (see Criteria and Restrictions to Access Reception Conditions).
Article 23, (1) letter. d), LD 142/2015, provides for the possibility of revoking reception conditions in case it is verified the applicant has sufficient economic resources available”, to be calculated based on “the annual amount of the social allowance” (article 14 (3) LD 142/2015) corresponding, for 2023, to 6,542 euros.
Prefectures should use the annual social income level to evaluate the sufficiency of the applicant’s financial resources to justify the withdrawal of reception conditions. According to the Reception Decree, if it is established that the applicant is not destitute, the applicant is required to reimburse the costs incurred for the measures from which he or she has unduly benefited.[19]
The regulatory provision did not correctly transpose the Directive 2013/33/EU both because it did not provide for a gradual reduction of reception measures in this case and it does not condition the sanction to the evaluation of whether a dignified standard of living would be ensured nor to the presence of the conditions that allow to believe of the applicant concealed their resources.
The lack of reference in the internal rule to the “concealment of resources” has led the Administrations to apply the provision in mere cases of possession of deemed economic self-sufficiency by the asylum seeker.
Some Administrations have therefore considered it possible to refer to the amount of the social allowance calculated on the single monthly salary, while others have made a prognostic, but not current, judgement regarding the exceeding of the annual amount of the social allowance, due to the presence of a medium or long-term employment contract.
After initial diverging decisions, administrative jurisprudence overall aligned in the view that the annual amount of the social allowance constitutes the legislatively established parameter for evaluating the adequacy of the resources for the support of the asylum seeker, and that the literal tenor of the rules imposes to believe that the “sufficient means”, equal to or greater than “the annual amount of the social allowance” must be of a stable and/or lasting nature and, in any case, must refer to a minimum time period of 1 year, a judgement which in any case must be carried out in light of the current availability of the resources themselves.
On March 2023, the Council of State[20] confirmed the decision by the Administrative Court for Emilia Romagna evaluating as legitimate the decision to revoke the reception measures to an asylum seeker for exceeding the annual income level envisaged by the legislation (as he earned around 10,000 euros in one year), while it deemed the order for payment of over 15,000 euros as incongruous and disproportionate. The Council of State held that, even in the absence of concealment of resources, the revocation of accommodation measures for due to having exceeded the set income threshold can be decided on the basis of Article 17(3) and 17(4) of the recast Reception Conditions Directive, and the asylum seeker can be asked for a reasonable refund. In interpreting the adequacy of the reimbursement, the Council of State considered that the regulatory basis could be found in Article 26 (5) of the reception directive which, regulating the possibility for Member States to demand a whole or partial reimbursement for any costs granted for the free legal assistance and representation in the appeal procedure, evaluates improvements in the applicant’s financial situation only if they can be deemed considerable and cases of false information supplied by the applicant in order to receive such aid.
For these reasons, the Council of State decided that Article 23 (1, d), of the reception decree has to be disapplied as it does not provide that partial or full reimbursement must be subject to the conditions set out in Article 26 of the recast Reception Conditions Directive and, in any case, as it does not provide that the reimbursement has to be proportionate to the specific case.
Based on this decision, the Emilia Romagna Regional Administrative Court decided in three cases to confirm the revocation due to exceeding the income threshold but to cancel the request for reimbursement as it was deemed disproportionate.[21]
However, despite the clarifications offered by the jurisprudence, in 2023 the prefectures continued to notify withdrawal notices based on an erroneous interpretation of the law and asking the asylum seeker to reimburse significant costs deriving from reception measures considered as having been unduly received, often linked to the per capita cost per day recognized to the managing body.
In some cases, the Administrative Courts declared the competence of the ordinary judges to decide about the reimbursement payments asked by Prefectures to the asylum seekers for the period of undue reception.[22]
Where detention grounds apply to asylum seekers placed in reception centres, the Prefect orders the withdrawal of the reception conditions and refers the case to the Questura for the adoption of the relevant measures.[23]
Civil Registration
Decree Law 113/2018 repealed the rules governing civil registration (iscrizione anagrafica) of asylum seekers,[24] and stated that the residence permits issued to them were not valid titles for registration at the registry office.[25]
On 31 July 2020 the Constitutional Court declared the denial of civil registration for asylum seekers introduced by the legislative Decree 113/2018, contrary to the principle of equality enshrined in the Article 3 of the Italian Constitution.[26] Subsequently, Decree Law 130/2020, amended by L 173/2020, re-introduced Article 5bis of the Reception Decree, expressly allowing asylum seekers to obtain civil registration.[27]
In 2021, after the reform, not all municipalities agreed to retroactively recognize the civil registration to asylum seekers who had requested it during the validity of the DL 113/2018. On this matter, on July 2023 the Civil Court of Trieste accepted the appeal submitted by an asylum seeker recognising his right to retroactively obtain civil registration.[28] The Municipality of Trieste appealed the decision and the procedure is still pending at the time of writing behind the Court of Appeal of Trieste with the last hearing carried out on 7 May 2024.
On the same matter, the Civil Court of Florence, on 27 July 2023, decided to recognise as well to the applicant, an asylum seeker, the right to obtain the civil registration for the period it was denied in force of the law declared contrary to the Constitution.[29]
According to the law, the applicant for international protection, in possession of a residence permit for asylum request[30] or of the receipt certifying the request[31] is registered in the registry of the resident population.[32] For applicants accommodated in first reception centres, the person in charge of the centres must notify the municipality of the changes in cohabitation within twenty days from the date on which the facts occurred. Furthermore, the law states that the communication of the withdrawal of the reception measures or of the unjustified removal of the asylum seeker from the first reception centres and from the SAI centres, constitutes a reason for immediate cancellation of the residence.[33]
As observed by some studies – even if limited to the exceptional cases of revocation of reception and unjustified removal – the provision still appears discriminatory with respect to asylum seekers, because it excludes only these categories of people from the application of the rule according to which only being unavailable for 12 months leads to cancellation. This provision can have particularly negative effects, because it is difficult for those who are removed from the reception system to immediately find other stable accommodation.[34]
After registration, asylum seekers obtain an identity card valid for three years.[35]
[1] See also Article 13 Reception Decree.
[2] L. 50/2023 cancelled Article 23 (1) (e)
[3] Article 23 ( 2) Reception Decree as amended by L. 50/2023
[4] Article 23 (2 bis) Reception Decree introduced by L. 50/2023.
[5] Article 23(5) Reception Decree.
[6] Article 23(3) Reception Decree.
[7] Article 23(3) Reception Decree.
[8] TAR Lazio, decision of 13 September 2023, available at: https://rb.gy/aj4p6s.
[9] TAR Veneto, decision of 11 November 2020, case n. 851/2020, available at: https://bit.ly/3y5uxli.
[10] Council of State, decision 06454/2019 of 26 September 2019.
[11] Consiglio di Stato, decision 1322/2019, 14 May 2019, available in Italian at: https://bit.ly/2TwonIk.
[12] Administrative Court of the Region of Tuscany, section II, Decision of 9 May 2022, no. 644/2022
[13] Administrative Court for Friuli Veneiza Giulia, Decision 33/2024 published on 19 January 2024
[14] NAGA, Senza Scampo, December 2019, available in Italian at: https://cutt.ly/byOB3Wr.
[15] Administrative Court of Lombardy, decision 329/2020, 19 February 2020.
[16] Administrative Court for Lombardy, 5 March 2024, available at: https://rb.gy/03c141.
[17] Article 23(4) Reception Decree as amended by the L 50/2023, which converted into law DL 20/2023.
[18] TAR for Campania region, decision of 17 July 2023, available at: https://rb.gy/r8pvwr.
[19] Article 23(6) Reception Decree.
[20] Council of State, Decision no. 2386/2023 of 9 February 2023, published on 7 March 2023.
[21] Administrative Court for the Emilia Romagna Region, decisions no. 136, 137 and 138 of 8 March 2023, published on 16 March 2023.
[22] This happened both in the hypothesis of simultaneous adoption of the measure of revocation of the reception measures (Lombardy Regional Administrative Court, judgement of 29 December 2021, No. 2932/2021), as well as in that in which they were independently adopted, (TAR Tuscany, judgement of 27 September 22, No. 1055, confirmed by judgement of 22 February 2023 No. 190/2023).
[23] Article 23(7) Reception Decree.
[24] Article 5-bis Reception Decree was repealed by Article 13 Decree Law 113/2018 and L 132/2018.
[25] Article 4(1-bis) Reception Decree, inserted by Article 13 Decree Law 113/2018 and L 132/2018.
[26] Decision no. 186/2020 of 31 July 2020, available at: https://bit.ly/2SCXDbl.
[27] Article 5 bis Reception Decree.
[28] Civil Court of Trieste, decision of 31 July 2023, available at: bit.ly/3wIdfyP.
[29] Civil Court of Florence, decision of 27 July 2023, case no. 476/2023.
[30] Article 4 (1) Reception Decree.
[31] Article 4 (3) Reception Decree.
[32] Article 5 bis (1) Reception Decree, re-introduced, with amendments, by Decree Law 130/2020 and L 173/2020.
[33] Article 5 bis (3) Reception Decree.
[34] See: L’Iscrizione anagrafica dei richiedenti asilo e dei protetti internazionali, Paolo Morozzo della Rocca, in Immigrazione, protezione internazionale e misure penali, Pacini Giuridica, 2021.
[35] Article 5 bis (4) introduced by Decree Law 130/2020.