Author
According to Article 10 of the Procedure Decree,[1] when a person makes an asylum application, the Questura shall inform the applicant about the asylum procedure and their rights and obligations, and of time limits and any means (i.e. relevant documentation) at their disposal to support the application. In this regard, police authorities should hand over an information leaflet. The amended Procedure Decree adds that the Questura informs the applicant that if they come from a Safe Country of Origin, their application may be rejected.[2]
According to the amended Procedure Decree, the Territorial Commission promptly informs the applicant of the decision to apply the accelerated procedure or the prioritised procedure.[3]
Regarding information on accommodation rights, the Reception Decree provides that Questure shall provide information related to reception conditions for asylum seekers and hand over information leaflets accordingly.[4] The brochures distributed also contain the contact details of UNHCR and refugee-assisting NGOs. However, the practice of distribution of these brochures by police authorities is quite rare. Moreover, although Italian legislation does not explicitly state that the information must also be provided orally, this happens in practice at the discretion of Questure but not in a systematic manner. Therefore, adequate information is not constantly and regularly ensured, mainly due to the insufficient number of police staff dealing with the number of asylum applications, as well as to the shortage of professional interpreters and linguistic mediators. According to the Reception Decree such information on reception rights is also provided at the accommodation centres within a maximum of 15 days from the making of the asylum application.[5]
PD 21/2015 provides that unaccompanied children shall receive information on the specific procedural guarantees specifically provided for them by law.[6]
Information on the Dublin Regulation
Asylum seekers are not properly informed of the different steps or given the possibility to highlight family links or vulnerabilities in the Dublin Procedure, In 2020, the Civil Court of Rome cancelled Dublin transfer measures not preceded by adequate information. However, during 2022 the same Court, such as other courts, considered compliance with articles 4 and 5 of the regulation to be relevant only when the applicant had demonstrated in court how the lack of correct information had affected the outcome of the procedure.
The Court of Cassation requested, pursuant to Article 267 of the TFEU, the European Court of Justice to give a preliminary ruling to clarify whether Article 4 of the Dublin Regulation must be interpreted as meaning that the violation of the information obligation can be asserted only on condition that the applicant indicates what information he could have indicated in his favour, decisive for a positive decision in his interest.[7]
On 20 April 2023, the Advocate General delivered her opinion according to which, in summary, infringements of Article 4 of the Dublin III Regulation can lead to the cancellation of the transfer decision with assumption of responsibility by the defaulting state where the applicant is present, only if it is demonstrated how that violation has concretely affected the rights of the asylum seeker and only in case those rights cannot find protection thanks to the appeal.[8]
Firstly, the CJEU started stated that the obligation to provide the information under Articles 4 and 5 of the Dublin III Regulation and Article 29 of the Eurodac Regulation ‘applies both in the context of a first application for international protection and a take charge procedure, under Article 20(1) and Article 21(1) of Regulation No 604/2013 respectively, as well as in the context of a subsequent application for international protection and a situation, as that covered by Article 17(1) of Regulation No 603/2013, capable of giving rise to take back procedures under Article 23(1) and Article 24(1) of Regulation No 604/2013’.
Then, the Court clarified the existence of different consequences in case of the infringement of Article 4 (common leaflet) or Article 5 (individual interview).
According to the Court, the failure to provide the common leaflet cannot lead to the annulment of the transfer unless the appellant demonstrates how the absence of information concretely affected the Dublin procedure and altered it. Instead, the personal interview is considered an essential phase which, if omitted, must in any case be made up for during the trial by listening directly to the appellant.
This, in the Italian context where the interview is often omitted or inconsistent and the court proceedings are mostly written, already had an important meaning in pending trials: on 3 April 2024 the Court of Cassation, recalling the CJEU decision stated that “where the specific information obligations are not fulfilled, in light of the hearing carried out and the information resulting from the allegations and productions of the administrative authority, burdened with proof, the transfer decision must be annulled”.[9]
Information at the border and in detention
According to the law, persons who express the intention to seek international protection at border areas and in transit zones shall be provided with information on the asylum procedure, in the framework of the information and reception services set by Article 11(6) TUI.[10]
Article 11(6) TUI states that, at the border, “those who intend to lodge an asylum application or foreigners who intend to stay in Italy for over three months” have the right to be informed about the provisions on immigration and asylum law by specific services at the borders run by NGOs. These services, located at official border-crossing points, include social counselling, interpretation, assistance with accommodation, contact with local authorities and services, production and distribution of information on specific asylum issues.
According to Article 10ter TUI, the third country national tracked down during the irregular crossing at an internal or external border or arrived in Italy following rescue operations must receive information on the right to asylum, on the relocation program in other EU Member States and on the possibility of voluntary repatriation.
Furthermore, as stated by Decree Law 130/2020, in case the conditions for detention are met, the foreign citizen is promptly informed on the rights and on the powers deriving from the validation procedure of the detention decree in a language they know, or, if not possible, in French, English or Spanish.[11]
In spite of the relevance of the assistance provided, it is worth highlighting that, since 2008, this kind of service has been assigned on the basis of calls for proposals. The main criterion applied to assign these services to NGOs is the price of the service, with a consequent impact on the quality and effectiveness of the assistance provided due to the reduction of resources invested, in contrast with the legislative provisions which aim to provide at least immediate assistance to potential asylum seekers. UNHCR and IOM continues to monitor the access of foreigners to the relevant procedures and the initial reception of asylum seekers and migrants in the framework of their mandates. The activities are funded under the Asylum, Migration and Integration Fund (AMIF).
The Reception Decree provides that foreigners detained in CPR shall be provided by the manager of the facility with relevant information on the possibility of applying for international protection. Asylum seekers detained in such facilities are provided with the relevant information set out by Article 10(1) of the Procedure Decree, by means of an informative leaflet.[12]
The Reception Decree also provides that asylum seekers detained in CPR or in hotspots are informed on the rules in force in the centre as well as on their rights and obligations in the first language they indicate.[13] If it is not possible, information is provided in a language they are reasonably supposed to know meaning, as ruled by Procedure Decree, English, French, Spanish or Arabic, according to the preference they give.[14]
In 2020 and in the following years, the Court of Cassation and some Civil Courts reaffirmed the close connection between the compliance with information obligations and the effectiveness of the right of access to the asylum procedure, both denied by the value attributed to the so-called “foglio notizie” or “secondo foglio notizie” often submitted to foreign citizens who arrive at the border without a prior or contextual explanation on the meaning of their signature.
The Court of Trieste, on several occasions between 2020 and 2023, observed that the “foglio notizie” could not fulfil the information obligation required by law. For example in a case where the validation of detention was examined, the Court found, the information “(..) was drafted in an approximate way, it did not contain an express indication or information on the possibility to request asylum; it was complex to read even for a person with a level of knowledge higher than that presumed for a migrant; (…) the indication “came to Italy for” was not translated and therefore the answers (translated) could be misunderstood. The Court found that it is therefore likely that the migrant did not understand the possibility of applying for international protection.”[15] In this case, however, the detention was validated as the Court found that the asylum application was presented only in order to avoid repatriation.
In other rulings, the Civil Court of Trieste held that there was no evidence that the detainee, on the occasion of crossing the border, had been enabled to consciously manifest his will to apply for asylum, as required by Article 10 ter, (1), TUI and that therefore there were no reasons to consider the request as a pretext (i.e. submitted for the sole purpose of delaying or preventing expulsion) even if not presented before the Giudice di Pace because even before that hearing it was not proven that the information obligation had been fulfilled.[16]
As already represented in the AIDA report 2021,[17] it is a systematic practice not to inform persons of specific nationalities of the appropriate information on the right to asylum. In fact, a second “foglio notizie”, is sometimes used in cases where in the first “foglio notizie” the applicant had expressed his or her will to ask asylum. The second “foglio notizie” is an extremely detailed document that contains information on all non-expulsion cases. By signing this document, the person declares that he/she is not interested in seeking international protection, even in the event that they have already expressed their will to seek asylum. Following the signature of these documents, deferred rejection and detention orders are notified.
The Court of Cassation clearly stated that the compilation and signing of the second “foglio notizie” cannot affect the legal status of the foreign citizen as an asylum seeker resulting in the revocation or overcoming of the previously submitted asylum application. The Court of Cassation[18] declared the validation of the detention issued by the Justice of the Peace of Trapani and by the Civil Court of Palermo, of asylum seekers of Tunisian nationality on the basis of the second “foglio notizie”, illegitimate.
With a decision of 20 November 2023, the Court of Cassation ruled that the Public Administration has the duty to document “the timing and manner in which the information was administered”. Neither the information contained in the foglio notizie nor the style clause usually included in refoulement decrees can be considered sufficient.[19]
[1] Article 10(1) Procedure Decree.
[2] Ibid, as amended by Article 7 Decree Law 113/2018 and L 132/2018.
[3] Article 28 (1) Procedure Decree as amended by DL 130/2020.
[4] Article 3 Reception Decree.
[5] Article 3 (3) Reception Decree.
[6] Article 3(3) PD 21/2015.
[7] Court of Cassation, decision no. 8668 of 23 February – 29 March 2021.
[8] Opinion of Advocate General Kokott delivered on 20 April 2023, available at: bit.ly/42LeWWS.
[9] Court of Cassation, decision of 3 April 2024, no. 12162/2024. Similarly, see Court of Cassation, decision of17 April 2024, available at https://acesse.dev/ipbCH.
[10] Article 10-bis(1) Procedure Decree, inserted by the Reception Decree.
[11] Article 10 ter (3) as amended by DL 130/2020.
[12] Article 6(4) Reception Decree.
[13] Article 7 (4) Reception Decree.
[14] Article 10 (4) Procedure Decree, to which Article 7 (4) reception decree expressly refers to.
[15] Civil Court of Trieste, decision of 15 September 2020.
[16] Civil Court of Trieste, decision 3882/2020 of 2 December 2020, procedure no. 3733/2020; see also: Civil Court of Trieste, decision of 23 February 2023, procedure no.721/2023.
[17] See AIDA, Country Report Italy – Update on the year 2021, May 2022, available at: https://bit.ly/49cu3Lx, 106.
[18] Court of Cassation, decision no. 18189/2020 of 1 September 2020, available at: https://bit.ly/3tygEsd and no. 18322/2020 of 8 September 2020.
[19] Court of Cassation, decision of 20 November 2023, no. 32070, available at https://l1nq.com/3aMMu.