Identification

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The Procedure Decree describes the following groups as vulnerable: minors, unaccompanied minors, women, (and no longer only pregnant women, as specified by DL 133/2023 [1]single parents with minor children, victims of trafficking, disabled, elderly people, persons affected by serious illness or mental disorders; persons for whom has been proved they have experienced torture, rape or other serious forms of psychological, physical or sexual violence; victims of genital mutilation.^[2]

Screening of vulnerability

There is no procedure defined in law for the identification of vulnerable persons. However, the Ministry of Health published guidelines for assistance, rehabilitation and treatment of psychological disorders of beneficiaries of international protection victims of torture, rape or other serious forms of psychological, physical or sexual violence. The guidelines highlight the importance of multidisciplinary teams and synergies between local health services and all actors coming into contact with asylum seekers (see Content of Protection: Health Care).

The identification of victims of torture or extreme violence may occur at any stage of the asylum procedure by lawyers, competent authorities, professional staff working in reception centres and specialised NGOs.

The Territorial Commission, on the basis of elements provided by the applicant, may also request a medical examination aimed at ascertaining the effects of persecution or serious harm suffered by the applicants, to be carried out in accordance with the aforementioned guidelines.^[3]

Children

The protection of asylum-seeking children has been strengthened with the adoption of LD 18/2014 and L 47/2017. Article 3(5)(e) LD 18/2014 provides the obligation to take into account the level of maturity and the personal development of the child while evaluating his or her credibility, while Article 19(2-bis) expressly recalls and prioritises the principle of the best interests of the child.

Any action necessary to identify the family members of the unaccompanied minor seeking asylum is promptly put in place to ensure the right to family reunification. The Ministry of Interior shall enter into agreements with international organisations, intergovernmental organisations and humanitarian associations, on the basis of the available resources of the National Fund for asylum policies and services, to implement programs directed to find the family members. The researches and the programs directed to find such family members are conducted in the superior interest of the minor and with the duty to ensure the absolute privacy and, therefore, to guarantee the security of the applicant and of his or her relatives.^[4]

A member of the Territorial Commission, specifically skilled for that purpose, interviews the minor in the presence of the parents or the legal guardian and the supporting personnel providing specific assistance to the minor. For justified reasons, the Territorial Commission may proceed to interview the minor again in the presence of the supporting personnel, even without the presence of the parent or the legal guardian, if considered necessary in relation of the personal situation of the minor concerned, the degree of maturity and development, in the light of the minor’s best interests.^[5]

The Presidential Decree 191/2022 of 4 October 2022,^[6] published on 13 December 2022 introduced an important change for unaccompanied children who seek asylum while underage. According to the Article 14 (1bis) of PD no. 394/99 as amended by PD 191/2022, in case the international protection request is denied, the residence permit for asylum request issued to the unaccompanied minor may be converted into a permit to stay for study or work reasons, pursuant to Article 32 (1 and 1 bis) of the Consolidated Act on Immigration, even after reaching the age of majority.

The request must be presented within thirty days from the expiring date provided for the appeal against the refusal issued by the Territorial Commission or, in case of appeal, within thirty days from the notification of the decree by which the Court denies the suspension of the effects of the denial challenged, or within thirty days from the communication of the Court decree rejecting the appeal pursuant to article 35-bis, (4 and 13), of the Procedure Decree.

In 2023, the Ministry of Labour traced the presence in Italy of 23,226 unaccompanied minors.^[7] 27,476 entered in Italy in 2023, out of which more than 15,000 in the second semester of 2023.^[8] 17,319 arrived by sea.^[9] Compared to 2022, the data shows a decrease in the number of UAMs arrivals, due to the significant drop in Ukranian UAMs who went from 7,107 arriving in 2022 to just 207 Ukrainian minors registered entering in 2023.

The most represented nationalities were Egypt, Ukraine, Tunisia, Gambia, Guinea, Ivory Coast and Albania (all together representing 75.4% of the total minors).

The Regions where the most minors were accommodated were Sicily and Lombardy, followed by Emilia Romagna, Campania and Lazio.

In 2023, 2,352 unaccompanied minors applied for international protection, a significant increase when compared to 2022, when 1,661 UAMs submitted international protection requests.

In the first semester of 2023, 64% of UAMS were recognised international protection.

Source: Ministry of Labour, Monitoring six months report on unaccompanied foreign minors, 31 December 2023, available at: https://bit.ly/4bM9XKD.

As of 31 December 2023, 10,000 unaccompanied children had left the reception system during 2023. Of these, 87% entered Italy in 2023.

Gender based violence

On 31 March 2022, the National Commission for the Right to Asylum presented, together with UNHCR, the Standard Operating Procedures for the identification and referral of survivors of – or those at risk of – gender-based violence within the asylum procedure, which had been published on 31 December 2021.^[10]

Torture survivors

During the personal interview, if the members of the Territorial Commissions suspect that the asylum seeker may be a torture survivor, they may refer him or her to specialised services and suspend the interview.

The Reception Decree provides that persons for whom has been proved they have experienced torture, rape or other serious forms of violence shall have access to appropriate medical and psychological assistance and care on the basis of Guidelines issued by the Ministry of Health. To this end, health personnel shall receive appropriate training and must ensure privacy.^[11]

Guidelines were issued on 22 March 2017,^[12] but their application is still limited according to ASGI experience, including in 2023.

Victims of trafficking

Where during the examination procedure, well-founded reasons arise to believe the applicant has been a victim of trafficking, the Territorial Commissions may suspend the procedure and inform the Questura, the Prosecutor’s office or NGOs providing assistance to victims of human trafficking thereof.^[13] LD 24/2014, adopted in March 2014 for the transposition of the Anti-Trafficking Directive, foresees that a referral mechanism should be put in place in order to coordinate the two protection mechanisms established for victims of trafficking, namely the protection systems for asylum seekers and beneficiaries of international protection, coordinated at a central level, and the protection system for victims of trafficking established at a territorial level.^[14]

Giving effect to the legal provision, in 2017 the CNDA and UNHCR published detailed guidelines for the Local Commissions on the identification of victims of trafficking among applicants for international protection and the referral mechanism.^[15]

In January 2021, UNHCR Italy issued its Guidelines addressed at Territorial Commissions for the recognition of international protection, ^[16] aimed at contributing to the correct identification of victims of trafficking in human beings in the context of the procedures for assessing asylum applications, and at ensuring they are given them assistance and protection.^[17]

The Reception Decree clarifies that trafficked asylum seekers shall be channelled into a special programme of social assistance and integration.^[18] Recognised victims of trafficking can also be accommodated in SAI reception facilities during the asylum procedure, as they belong to the vulnerable asylum seekers groups allowed, according to L. 50/2023, to access this accommodation system before they have been recognised international protection^[19] (see Special Reception Needs).

Age assessment of unaccompanied children

The Procedures Decree includes a specific provision concerning the identification of unaccompanied children. It foresees that in case of doubt on the age of the asylum seeker, unaccompanied children can be subjected to an age assessment through non-invasive examinations.^[20] Competent authorities can request to conduct an age assessment at any stage of the asylum procedure. However, before subjecting a young person to a medical examination, it is mandatory to seek the consent of the concerned unaccompanied child or of his or her legal guardian.^[21] The refusal by the applicant to undertake the age assessment has no negative consequences on the examination of the asylum application.

On 6 January 2017, Decree 234/2016 adopted on 10 November 2016 entered into force. The Decree lays down a procedure for determining the age of unaccompanied children victims of trafficking, in implementation of Article 4 LD 24/2014.

L 47/2017 has laid down rules on age assessment which apply to all unaccompanied children.^[22] The Law provides that within 120 days of its entry into force, a decree of the President of the Council of Ministers should be adopted regulating the interview with the minor aiming at providing further details on his family and personal history and bringing out any other useful element relevant to his/her protection.^[23] However, to date, such a decree has not yet been adopted.

In 2021, as reported by the Guarantor for the rights of detained persons in his last report to Parliament, four years after the entry into force of L. 47/2017, the procedure established for the age assessment of unaccompanied foreign minors still required interventions for its full and timely application.^[24]

In June 2022, the NGOs Defence for Children and Cespi published the second monitoring report on the situation of unaccompanied minors in four Italian regions (Sicily, Apulia, Marche and Liguria).^[25]

The report shows that correct application of the legislation was still limited.

Due to the structure of the Italian health system and regional autonomy in the provision of health services, the protocol on the age assessment has a variety of different applications throughout the national territory. The report also highlights that – according to a survey conducted by the INMP (National Institute for the promotion of the health of migrant populations and for the fight against the diseases of poverty)- there are territories where the multidisciplinary team has not even been established and where old practices non in line with the current law are still used (64% municipalities); in territories where the multidisciplinary team has been created (36%), generally the age assessment is conducted according to the provisions of the Protocol (78%) but, in 21% of cases, the concrete application of the protocol is still a challenge, as not all territories invested the sufficient resources to finance them.^[26]

In September 2022, the INMP published its report, drafted after a monitoring carried out by inviting the 118 Health authorities, 102 of which adhered to the request to complete the questionnaire.

37 Health authorities replied that a multidisciplinary team operated within them. Of these, only 18 adopted the protocol approved in the Unified Conference and 11 a multidisciplinary approach similar to it, while 8 resorted to using a method for determining age not aligned, in procedures and approach, with the protocol adopted. The report concluded that “to date, the adoption of the protocol by the health authorities appears to be limited” and that “the implementation of the protocol by the authorities appears as sustainable; however, there is great variability in the adoption of the agreement between the various Regions, sometimes even within them”.^[27]

The recent amendments made by Decree-Law 133/2023, converted by Law 176/2023, introduced exceptions in ascertaining the age of unaccompanied minors in case of large, multiple and close arrivals, following search and rescue activities at sea, or found at the border or in transit zones. In such cases, wide discretion is granted to the public security authorities in the identification procedures, by carrying out anthropometric or other health assessments, including X-rays, aimed at identifying age. The only limit for the public security authorities is the request for authorisation that must be sent in writing by the Public Prosecutor’s Office at the Juvenile Court. In particularly urgent cases, authorisation may be given orally and only subsequently confirmed in writing.^[28]

ASGI pointed out how the new provisions introduced by Law Decree 133/2023 run the risk of nullifying the rules and protocols that were in force until then, which, although not formally affected, are weakened in relation to the possible extension of the application of the new derogatory procedure, which focuses on the rapidity of the outcome to the detriment of the guarantees for the person.

On a completely discretionary basis because there are no parameters or reference indications laid down by law, the public security authorities can decide whether to start the ordinary procedure, which, as seen, requires an assessment based on several methods to be applied together and the initiation of proceedings at the Juvenile Court with the adoption of a final decree, or whether to, outside of the multidisciplinary approach, also subject a person claiming to be a minor to individual examinations, including radiological examinations, the (un)reliability of which has been debated for years.^[29]

Identification documents and age assessment methods

The law states that, in the absence of identification documents,^[30] and in case of doubts about the person’s age, the Public Prosecutor’s office at the Juvenile Court may order a social / medical examination.^[31] This provision may put an end to the critical practice of Questure which directly sent children to hospital facilities without any order by judicial authorities, even when children had valid documents.^[32]

The person is informed in a language they can understand taking into account their degree of literacy and maturity, with the assistance of a cultural mediator, of the fact that an age assessment will be conducted through a social / medical examination. The guardian is also informed of the process.

The examination is conducted under a multidisciplinary approach by appropriately trained professionals, using the least invasive methods possible and respecting the integrity of the person.^[33]

Pending the outcome of the procedure, the applicant benefits from the provisions on reception of unaccompanied children.^[34] The benefit of the doubt shall be granted if doubts persist following the examination.^[35]

The law also states that the final decision on the age assessment, taken by the Juvenile Court, is notified to the child and to the guardian or the person exercising guardianship and must indicate the margin of error.^[36]

Currently, however, according to ASGI’s experience and as the mentioned INMP report proved, L 47/2017 is not applied uniformly on the national territory. In some areas, the multidisciplinary teams required by law have been established- Consequently, age assessment is still conducted through wrist X-ray, with results not indicating the margin of error.^[37]

In 2020, a national protocol on multidisciplinary age assessment was signed by the Conference State region,^[38] providing for uniform criteria and inviting to the conclusion of local protocols. In some areas, starting from 2020, the recommended local protocols were also signed; as an example, this was the case in Milan,^[39] Messina,^[40] and Ancona.^[41] In 2022, as mentioned, only 18 health authorities adopted the protocol approved in the Unified Conference and 11 a multidisciplinary approach similar to it.

The age assessment is often required even in presence of identity documents and even when there is no reasonable doubt about the minor age. However, the law does not provide the timing for the decision and, pending the results, the minor is often treated and accommodated as an adult, therefore also in situations of promiscuity with adults. Furthermore, the child is often not informed and involved actively in the procedures and he or she is not aware of the reasons for the examinations. On the other hand, a certainly positive element consists in the decrease of cases in which age assessment is requested by authorities not entitled to carry out such proceedings.

As mentioned in the previous AIDA report,[42] and reported by several organisations belonging to the network Tavolo Minori Migranti,^[43] two directives published in the Friuli Venezia Giulia region on 31 August and 21 December 2020 by the Public Prosecutor at the Juvenile Court of Trieste authorised – contrary to the guarantees enshrined in the Zampa Law (L 47/2017) – the security forces and the border authorities to consider migrants intercepted at the Italy-Slovenia border as adults in case the authorities themselves have no doubts about their adulthood, regardless of their eventual declaration of minor age and the consequent judicial review required by law. This gives a discretionary power to the authorities for the attribution of age to migrants and refugees subjected to border controls, which clearly contrasts with the provisions of the L 47/2017.^[44] Through the implementation of this practice the informal readmission procedure to Slovenia was also applied to migrants declaring themselves as minors.

According to what was reported to ASGI, in 2021 these directives ceased to be implemented and, with the arrival of minors from Ukraine, many Juvenile Courts recalled the need to follow the age assessment procedures dictated by the Zampa law.^[45] However, it is possible that, due to the new regulatory provisions provided for by Decree-Law 133/2023, converted by Law 176/2023, the practice may be implemented again.

Challenging age assessments

According to L 47/2017, the age assessment decision can be appealed, and any administrative or criminal procedure is suspended until the decision on the appeal.^[46] Before this law, in the absence of a specific provision, children were often prevented from challenging the outcome of age assessments.

On 21 October 2022, in the case Darboe and Camara, the ECtHR condemned Italy for violations:

• Of Article 3 – having regard to the length and conditions of the applicant’s stay in the adult reception centre in Cona;
• Of Article 8 ECHR – as the Italian authorities failed to apply the principle of presumption of minority, which the Court deems to be an inherent element of the protection of the right to respect for private life of a foreign unaccompanied individual declaring to be a minor;
• Of Article 13 of the Convention taken in conjunction with Articles 3 and 8 of the ECHR, as the remedies mentioned by the Government with specific reference to the applicant’s age-assessment procedure turned out to be ineffective in the applicants’ cases.^[47]

As mentioned, the procedure set out in Law Decree No. 133/23 “in case of substantial, multiple, and closely spaced arrivals resulting from search and rescue activities at sea, tracking at the border or in transit areas […], tracking within the national territory following illegal entry evading border controls” significantrly derogates from the ordinary rules.

According to Article 19 bis (6 bis) Reception Decree, as amended by Law Decree No. 133/2023 an appeal can be submitted before the Juvenile Court within 5 days from the age assessment and, if a suspension request is included in the appeal, the judge shall decide within 5 days.

As pointed out by ASGI in the supervision procedure under Rule 9.2 of the Rules of the Committee of Ministers, Law Decree No. 133/23 lacks minimal procedural safeguards to uphold the principle of presumption of minority, protected by Article 8 of the Convention. Additionally, it does not provide access to an effective remedy in age assessment procedures, as interpreted by the Court in the Darboe and Camara cases, since:

• No reference is made to the existence of a well-founded doubt as to the age declared by the person concerned as a precondition for carrying out the assessment of age, nor is any mention made of the relevance of any personal documents in the possession of the person concerned;
• It does not provide for the appointment of a guardian, access to a lawyer and the informed participation of the person concerned in the age determination procedure;
• It is based exclusively on the “carrying out of anthropometric or other health assessments, including radiographic ones, aimed at identifying age”, expressly derogating from the provisions of paragraph 6 of Article 19-bis of Legislative Decree 142/15 that provides for a multidisciplinary approach;
• It is ordered by the public security authority rather than the judicial authority, which merely authorises it (even orally, in cases of particular urgency) and ends not with the adoption of an age-assignment order by the judicial authority, but with the notification of the public security authorities’ report;
• It provides for extremely short deadlines for lodging an appeal (5 days) completely impossible to meet.^[48]

[1] (Article 2(1 lett. h-bis) as amended by Article 7 DL 133/20233 converted with amendments by L. 176/2023),

^[2] Article 2(1)(h-bis) Procedure Decree.

^[3] Article 8(3-bis) Qualification Decree.

^[4] Article 19(7) Reception Decree.

^[5] Article 13(3) Procedure Decree.

^[6] Presidential Decree no.  191/2022 of 4 October 2022, published on 13 December 2022, available in Italian at: bit.ly/3ZNBoNP. The Presidential Decree has been issued pursuant to Article 22 of Zampa Law, L. no. 47/2017.

^[7] Ministry of Labour, Monitoring six months report on unaccompanied foreign minors, 31 December 2023, available at:  https://bit.ly/4bM9XKD.

^[8] Ministry of Labour, Monitoring six months report on unaccompanied foreign minors, 31 December 2023, available at:  https://bit.ly/4bM9XKD.

^[9] MOI, Cruscotto statistic giornaliero, 31 December 2023, available at https://bit.ly/48VIQtT.

^[10] Ministry of Interior and UNHCR, Standard Operating Procedures, 31 December 2021, available in Italian at: http://bit.ly/3Lk71Kq.

^[11] Article 17(8) Reception Decree.

^[12] Ministry of Health, Guidelines for the planning of interventions assistance and rehabilitation as well as for treatment of mental disorders of international protected who suffered torture, rape or other serious forms of psychological, physical or sexual violence, 22 March 2017, available at: bit.ly/422OPK8.

^[13] Article 32(3-bis) Procedure Decree.

^[14] Article 13 L 228/2003; Article 18 TUI.

^[15] CNDA and UNHCR, L’identificazione delle vittime di trata tra i richiedenti protezione internazionale e procedure di referral, September 2017, available in Italian at: http://bit.ly/2FttAeK.

^[16] UNHCR Guidelines, L’identificazione delle vittime di tratta tra i richiedenti protezione internazionale e procedure di referral, available at https://bit.ly/3KwhQoD.

^[17] European Commission, EMN Bulletin, May 2021, available at: https://bit.ly/3s2wrBY, 16.

^[18] Article 17(2) Reception Decree in conjunction with Article 18(3-bis) LD 286/1998 and LD 24/2014.

^[19] Article 9 (1 bis) introduced by L 50/2023 which converted with amendments the DL 20/2023.

^[20] Article 19(2) Procedure Decree.

^[21] Ibid.          

^[22] Article 19-bis Reception Decree, inserted by Article 5 L 47/2017.

^[23] Article 5 L 47/2017.

^[24] Guarantor for the rights of detained persons, Report to Parliament, June 2021, available at:  https://bit.ly/35UHwx5, 229.

^[25] Defence for Children and Cespi Report for 2021, Minorenni stranieri non accompagnati, Legge 47/2017, published on June 2022, available in Italian at: http://bit.ly/3li1SI0.

^[26] Ibidem, 134.

^[27] Report  from INMP (National Institute for the promotion of the health of migrant populations and for the fight against the diseases of poverty), Primo rapporto sull’attuazione del protocollo per la determinazione dell’età dei minori stranieri non accompagnati, 22 September 2022, available at: http://bit.ly/3IDuH9U.

^[28] Article 19 bis (6bis) Reception Decree, as amended by Article 5 Decree Law 133/2023 converted by L 176/2023.

^[29] ASGI, Informal hearing as part of the examination of Bill C. 1458, converting Decree-Law No. 133 of 2023 on    urgent provisions on immigration and international protection, as well as on support for security policies and the functionality of the Ministry of the Interior, October 2023, available at: https://encr.pw/At4V5.

^[30] Article 19-bis(3) Reception Decree.

^[31] Article 19-bis(4) Reception Decree.

^[32] Elena Rozzi, ‘L’Italia, un modello per la protezione dei minori stranieri non accompagnati a livello europeo?, in Il diritto d’asilo’, Fondazione Migrantes, February 2018.

^[33] Article 19-bis(5) Reception Decree.

^[34] Article 19-bis(6) Reception Decree.

^[35] Article 19-bis(8) Reception Decree.

^[36] Article 19-bis(7) Reception Decree.

^[37] The different praxis not always in conformity with law have been reported by UNHCR in a report of 2020 available in Italian at: https://bit.ly/3MQDMwk.

^[38] Available in Italian at: https://bit.ly/384KZtJ.

^[39] Milan Protocol available in Italian at: https://bit.ly/3LYxqLr.

^[40] Available in Italian at: https://bit.ly/3OVDUfP.

^[41] Available in Italian at: https://bit.ly/37YepKj.

[42] See Aida 2022, https://asylumineurope.org/wp-content/uploads/2023/05/AIDA-IT_2022-Update.pdf p. 99

^[43] The “Tavolo Minori Migranti” is a un network coordinated by Save the Children, to which belong also AiBi, Amnesty International, ASGI, Caritas Italiana, Centro Astalli, CeSpi, CIR, CNCA, Defence for Children, Emergency, Intersos, Oxfam, Salesiani per il Sociale, SOS Villaggi dei bambini and Terre des Hommes. Created after the approval of L. 47/2017 aiming at monitoring its full implementation regarding the effective defence of minors.

^[44] See Ansa, ‘Migranti: 12 associazioni contestano Procura Minori Trieste’, 10 February 2021, available at https://bit.ly/3uBXbIw; see also ASGI, ‘Accertamento dell’età, due direttive della Procura della Repubblica per i minori di Trieste in contrasto con la legge’, 10 February 2021, available at: https://bit.ly/3hha0nL.

^[45] See for example, the letter sent by the Juvenile Court of Milan to all the municipalities of Milan district, to Questure of Lombardy, to the border police of Lombardy, and to Prefectures of Lombardy, available at: bit.ly/3J9Vjzg.

^[46] Article 19-bis(9) Reception Decree.

^[47] ECtHR, Application No 5797/17, Darboe and Camara v. Italy, 21 July 2022, available at: https://bit.ly/3PA9UIs.

^[48] Communication by ASGI in the Camara and Darboe supervision procedure under Rule 9.2 of the Rules of the Committee of Ministers, 16 November 2023, available at https://bit.ly/49T0b8b. See also the submission sent on February 2024, available at https://bit.ly/3TB2w1P.