Author
Hotspots legal framework
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]
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.[4] 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).[5]
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…”.[6] 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).[7]
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.[8]
Likely with 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).[9]
Use of hotspots
By the end of 2023, 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 29 February 2024, the hotspots hosted 3 people in Sicily and 5 in Apulia.[10]
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 critical issues.[11] In 2021, ASGI reported many critical issues at the “new border” of Pantelleria, where landed migrants are also channelled in hotspot-like procedures.[12] The new inspection carried out by ASGI in May 2023 in Pantelleria confirmed the critical issues already reported in previous years (see Place of Detention).[13]
“Hotspots” managed by the competent authority have not required the construction and equipment of new reception facilities, operating instead from already existing ones.
In 2022, 55,135 persons entered the hotspots, compared to 44,242, in 2021, 28,884 in 2020, 7,757 in 2019 and 13,777 in 2018. The persons mainly originated from Tunisia (12,519), Bangladesh (11,237) and Egypt (8,660). 10,491 were children, of which 7,341 unaccompanied minors.[14] As of 31 March 2023, 22,024 persons had been registered in Italian hotspots since the beginning of the year, of which 3,669 minors.[15]
The monitoring of hotspots by NGOs was particularly difficult in 2020 and 2021 due to the limitations in access to the structures, connected with the pandemic, that prevent access of external people to the facilities.[16] 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.[17]
The organisation also collected relevant data on hotspots at the beginning of 2022,[18] 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.[19]
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.[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 2022 and 2023.
As reported in previous updates to this country report,[23] as of 2019, an administrative practice was established following the disembarkation of foreign nationals aimed at restricting, preventing or revoking a previous manifestation of willingness to apply for asylum by signing an ‘information sheet’ or a second ‘news sheet’. This signature led to the adoption of a deferred rejection decree and subsequent detention at a CPR.
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.[24]
Recent Court of Cassation judgments[25] have clarified the need for adequate information at the time of disembarkation, which cannot be overcome by stereotypical phrases contained in the ‘news sheet’ or in refusal orders (see Detention – Procedural safeguards).
Other unlawful practices and violations were recorded in recent visits to the Lampedusa hotspot, notably the visit 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.[26]
In February 2023, the visit revealed very bad reception conditions inside the facility, including a very serious overcrowding situation (against a capacity of 400 places, there were almost 4,000 people), people forced to sleep on the floor, lack of food, no medical assistance, and bonfires set up to make up for the lack of heating.[27] All this led to the replacement of the managing body and the subsequent entrusting of the facility to the Italian Red Cross from May 2023. Despite the change of management, the critical issues that had emerged in previous years continue to be denounced by ASGI.[28]
In June 2023, a delegation of ASGI had access to the Pozzallo hotspot and found several problems including the absence of cultural mediators to support the procedures after entering the hotspot (e.g. during the compilation and signing of the so-called “foglio-notizie”) and the duration of detention in the hotspot following the manifestation of an application for international protection, which on average is about 10 days but can reach several weeks as stated by some people in the hotspot.[29]
Concerns have been expressed in a 2021 document by “InLimine” on the lack of gender related measures in the hotspots, specifically regarding Lampedusa hotspot.[30]
Further critical issues were reported in the University of Bari’s Report on the Taranto hotspot, which denounced the inadequacy of the legal information offered to persons entering the facility, the confusion between intelligence and investigative activities carried out during entry security checks, with potential repercussions on the rights of persons under investigation, the inadequate material reception conditions to guarantee privacy and the protection of persons in particularly vulnerable conditions (women and minors).[31]
ECtHR judgments
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 of the case 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 were kept in de facto detention for ten days. The applicants had not received any information regarding 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]
In its decision of 23 November 2023 rendered in case no. 47287/17 (A.T. and others v. Italy),[33] the ECtHR condemned Italy for having unlawfully detained several unaccompanied foreign minors in the Taranto hotspot, for having used inhuman and degrading treatment in arranging their reception measures, for not having appointed a guardian nor having provided them with any information on the possibility of challenging this condition in court. The relevance of the decision is immediately perceptible in the current context, in which previous repressive approaches have not been changed. At the time of the ruling’s issuance, there were almost two hundred foreign minors de facto detained without any legal basis and without any judicial review inside the Taranto hotspot, some of them even since the previous month of August.[34]
Detention in hotspots per new law 50/2023
The Decree law 20/2023, converted into law 50/2023, introduced a new hypothesis for the detention of asylum seekers in hotspots, governed by 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. According to the Law, detention may take place where the applicant has not presented a valid passport or other equivalent document, or does not provide for suitable financial guarantee.[35]
On 14 September 2023, the expected MoI Decree[36] regarding the financial guarantee was adopted. It detailed that:
- The financial guarantee consists of 4,938 euros;[37]
- It has to be paid in a single payment;
- It has to be paid directly by the person affected by the detention measure and not by third parties;
- It has to be paid via a bank guarantee;[38]
- It should be paid before the fingerprinting done according to Eurodac Regulation and it covers the entire border procedure, up to the decision on the suspensive request in case of appeal.[39]
The Decree states that, in case of absconding before the end of the procedure, the entire amount is destined to the State.[40]
These procedures were first implemented at the end of September 2023. The Court of Catania rejected the Questore’s request to validate the detention, on the grounds of incompatibility of the national legislation with that of the European Union. According to the Court, Articles 8 and 9 Reception Conditions Directive, as interpreted by CJEU C-924/19 PPU and C-925/19 PPU, prevent Member States from detaining an applicant for international protection for the sole fact that they cannot meet their own needs; and detention cannot take place without the prior adoption of a reasoned decision ordering detention and without the necessity and proportionality of such a measure having been examined.[41]
This decision, together with others adopted on the same date by the Court of Catania, were challenged by the Ministry of the Interior before the Court of Cassation in United Chambers. The latter, by an interlocutory order, referred the matter to the CJEU for the purpose of verifying the compatibility of the domestic legislation relating to the fixed financial guarantee with Articles 8 and 9 of the Reception Conditions Directive.[42] The decision of the EU court is expected in the coming months.
Among the legal changes introduced by Decree-Law 20/2023 is the new formulation of article 10-ter, par. 1-bis, of TUI, which is part of the provisions for the identification of third-country nationals found to be illegally present on the national territory or rescued during SAR 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 using measures that would amount to de facto detention, 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.
[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] Article 10-ter TUI, inserted by Decree Law 13/2017.
[5] Article 6(3-bis) Reception Decree, as amended by Decree Law 113/2018.
[6] Ministry of Interior, Standard Operating Procedures applicable to Italian hotspots, February 2016, available at: http://bit.ly/2kt9JBX, para B.7.2.c.
[7] Article 10-ter(3) TUI, inserted by Decree Law 13/2017.
[8] Article 28-bis(2) (b) Procedure Decree, as amended by Decree Law 130/2020.
[9] Moi Decree 5 August 2019, Article 2
[10] Ministry of Interior, Cruscotto statistico giornaliero, 29 February 2024, available in Italian at: https://lc.cx/P_H1G3.
[11] ASGI, Un resoconto della visita di ASGI al Centro di accoglienza di Monastir, April 2021, available in Italian at: https://bit.ly/3CKQecX.
[12] 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.
[13] ASGI, ‘Report e audio sul Punto di Crisi di Pantelleria: implicazioni sul diritto alla libertà personale’, October 2023, available in Italian at: https://rb.gy/ajp1id.
[14] Report to Parliament Annexes to the yearly report of the National Guarantor for the rights of detained persons, June 2023, available at: https://rb.gy/r73ey6.
[15] Report to Parliament Annexes to the yearly report of the National Guarantor for the rights of detained persons, June 2023, available at: https://rb.gy/r73ey6.
[16] 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.
[17] ASGI, Report Lampedusa 2022: le criticità, August 2022, available in Italian at: https://rb.gy/litjw5.
[18] 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.
[19] 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.
[20] 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.
[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] AIDA, Country Report Italy – Update on the year 2022, May 2023, available at: https://bit.ly/3PvO1cg, 26-53.
[24] 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.
[25] Civil Court of Cassazione, decision n. 32070/2023, 20 November 2023 and Civil Court of Cassazione, decision n.5797/2024, 5 March 2024.
[26] ASGI, Report Lampedusa 2022: le criticità, August 2022, available in Italian at: https://rb.gy/litjw5.
[27] CILD, L’AFFAR€ CPR.Il profitto sulla pelle delle persone migranti, June 2023, available in Italian at: https://lc.cx/gY0Ueb.
[28] ASGI, ‘Per l’implementazione della libertà di corrispondenza con il mondo esterno e predisposizione di una rete wi-fi presso l’Hotspot di Lampedusa: diverse organizzazioni scrivono alle autorità competenti’, March 2023, available in Italian at: https://lc.cx/maYghO; ASGI, La privazione della libertà personale nell’hotspot di Lampedusa: il riscontro delle autorità competenti, March 2023, available in Italian at: https://lc.cx/gDj3y9; ASGI, ‘The right to information in the Lampedusa hotspot: the responsibilities of UNHCR’, April 2023: https://lc.cx/MnCT6a; ASGI, ‘La Questura di Agrigento su ingressi e uscite dall’hotspot di Lampedusa’, May 2023, available in Italian at: https://lc.cx/zmx60e; ASGI, ‘La gestione dell’hotspot di Lampedusa: la Convenzione con la CRI’, July 2023, available in Italian at: https://lc.cx/w2w1u6.
[29] ASGI, ‘Monitoraggio ASGI e Spazi Circolari a Pozzallo: hotspot, Contrada Cifali e il nuovo centro di trattenimento’, 9 October 2023, available in Italian at: https://lc.cx/2n5MBD.
[30] 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.
[31] Università degli Studi di Bari, Rapporto sul centro hotspot di Taranto, Jean Monnet Working Paper 2/2023, October 2023, available in Italian at: https://lc.cx/8otIiD.
[32] Case of J.A. and Others v. Italy, application n. 21329/2018, 30 March 2023, available at: https://rb.gy/8uq8v.
[33] ECtHR, No. 18911/17 and two others, A.E. and others v. Italy, 16 November 2023, available at: https://bit.ly/3VtXyVY.
[34] ASGI, ‘CEDU: minori stranieri detenuti illegalmente nell’hotspot di Taranto. ASGI: vanno ricollocati’, 28 November 2023, available in Italian at: https://lc.cx/VLycMg.
[35] Article 6 bis Reception Decree as amended by the DL 20/2023 converted into L. 50/2023.
[36] MOI Decree issued on 14 September 2023, as provided by Article 6 bis (2) Reception Decree, available in Italian at: https://bit.ly/3TWwL3p.
[37] Moi Decree 14 Semptember 2023, Article 3 (1).
[38] Moi Decree 14 Semptember 2023, Article 3 (2).
[39] Moi Decree 14 Semptember 2023, Article 3 (3).
[40] MoI Decree 14 September 2023, Article 4.
[41] Civil Court of Catania, Decree of 29 September 2023, n. 4117/2023, on the proceeding n. 10459/2023, available in Italian at: https://lc.cx/FFkoBp; see also Questione Giustizia, Il giudice non convalida i trattenimenti di tre migranti tunisini disposti in base alla nuova disciplina delle procedure di frontiera, available in Italian at: https://lc.cx/OsBUJH
[42] Court of Cassation, interlocutory order of 8 February 2024, decision n. 3562/2024, R.G. 20674/2023.