Author
The system of guardianship is not specific to the asylum procedure. A guardian is appointed when children do not have legal capacity and no parents or other relatives or persons who could exercise parental authority are present in the territory.[1] The guardian is responsible for the protection and the well-being of the child.
The Reception Decree, as amended by L 47/2017, provides that affective and psychological assistance is guaranteed to children in every state of the procedure, through the presence of suitable persons indicated by the child and authorised by the relevant authorities.[2] It also guarantees that the unaccompanied child has the right to participate, through a legal representative, in all judicial and administrative proceedings concerning him or her and to be heard on the merits of his or her case. To this end, the law also guarantees the presence of a cultural mediator.[3]
The individuals working with children shall be properly skilled or shall in any case receive a specific training. They also have the duty to respect the privacy rights in relation to the personal information and data of the minors.[4]
The Reception Decree provides that the unaccompanied child can make an asylum application in person or through his or her legal guardian on the basis of the evaluation of the situation of the child concerned.[5]
Timing of appointment
The Reception Decree, as amended by LD 220/2017, which entered into force on 31 January 2018, provides that the public security authority must give immediate notice of the presence of an unaccompanied child to the Public Prosecutor at the Juvenile Court and to the Juvenile Court (Tribunale per i minorenni) for the appointment of a guardian.[6] The Juvenile Court is the sole competent authority following the 2017 reform.
An appeal against the appointment of the guardian is submitted to the Juvenile Court in collegial function. The judge issuing the decision of appointment cannot take part in the examination of the appeal.
Where a guardian has not yet been appointed, the manager of the reception centre is allowed to support the child for the lodging of the asylum application at the Questura.[7] As clarified by the CNDA, however, the guardian remains responsible for representing the child in the next steps of the procedure.[8]
Duties and qualifications of the guardian
According to the Procedure Decree, the guardian has the responsibility to assist the unaccompanied child during the entire asylum procedure, and even afterwards, in case the child receives a negative decision on the claim.[9] For this reason, the guardian escorts the child to the police, where he or she is fingerprinted if he or she is over 14, and assists the child in filling the form and lodge the asylum claim. The guardian also has a relevant role during the personal interview before the Territorial Commission, who cannot start the interview without his or her presence.[10] The law provides that a member of the Territorial Commission, specifically trained for that purpose, interviews the child in the presence of his or her parents or the guardian and the supporting personnel providing specific assistance to the child. For justified reasons, the Territorial Commission may proceed to interview again the child, even without the presence of the parent or the legal guardian, at the presence of supporting personnel, if considered necessary in relation of the personal situation of the children, his or her degree of maturity and development, and in line with his or her best interests.[11]
The guardian must be authorised by the Juvenile Court to make an appeal against a negative decision. The law does not foresee any specific provision concerning the possibility for unaccompanied children to lodge an appeal themselves, even though in theory the same provisions foreseen for all asylum seekers are also applicable to them.
Each guardian can be appointed for one child or for a maximum of three children.
To overcome existing deficiencies and lack of professionalism among guardians, L 47/2017 has established the concept of voluntary guardians. A register of such guardians has to be kept in every Juvenile Court.[12]
The Regional Children’s Ombudsman is responsible for selecting and training guardians. The National Children’s Ombudsman has established specific guidelines on the basis of which calls for selection of guardians have already been issued in each region.[13] Training courses have started in most of the cities.
The law assigns the responsibility to monitor the state of implementation of the guardianship provisions to the Children’s Ombudsman (Italian Independent Authority for children and adolescents – Agia).[14] The Regional Children’s Ombudsman and the one of the autonomous provinces of Trento and Bolzano have to cooperate regularly with the Children’s Ombudsman, to whom they have to submit a report on their activities every two months. A monitoring project financed with the AMIF fund and managed by the Ministry of the Interior was launched to implement the provision.
In March 2021 the Children’s Ombudsman published five monitoring reports, dated November 2020 on the voluntary guardianship system for unaccompanied minors in Italy.[15] As emerges from the fifth monitoring report on quantitative aspects, the total number of voluntary guardians as of 30 June 2019 was 2,960. Of these, 3 out of 4 were women, 63.1% were over 45 and most them (78.2%) were employed, while retirees represented the 10.8% of the total.
As of 30 June 2019, out of 1,679 unaccompanied minors present, 1,324 minors were found to have a guardian.[16] Regarding the number of minors per guardian, the reports do not show precise data, since not all Juvenile Courts provided the data, but it seems that on average many guardians have the protection of 2 or 3 minors, while in some regions the ratio is much higher even reaching 23 minors for 1 single guardian in Friuli Venezia Giulia.[17]
In 2020, 8,939 minors were traced on Italian territory. Of these, 4,461, (49.9%) arrived following disembarkation. The regions most affected by the arrivals of minors were Sicily (41.8%), for arrivals by sea, Friuli Venezia Giulia (24.1%) and Lombardy (7.7%); the last two for the arrivals by land and by the Balkan route. [18]
In 2020, 753 unaccompanied minors made an asylum application.
In 2021 16,575 unaccompanied minors were traced on the Italian territory. 10,048 UAMs (60,6%) arrived by boat. Most represented nationalities were Bangladesh, Egypt, Tunisia, Afghanistan and Albania. The Region with most arrivals was Sicily (48%) followed by Friuli Venezia Giulia (12%), Calabria ( 9,6%) and Lombardia (7%).[19]
In 2021 3,373 unaccompanied minors applied for international protection.
| Unaccompanied asylum-seeking children: 2021 | |
| Nationality | Number |
| Tunisia | 937 |
| Bangladesh | 698 |
| Gambia | 301 |
| Ivory Coast | 243 |
| Somalia | 225 |
| Guinea | 193 |
| Pakistan | 156 |
| Egypt | 156 |
| Afghanistan | 135 |
| Eritrea | 114 |
| Mali | 103 |
| Others | 383 |
| Total | 3,373 |
Source: Ministry of Labour.[20]
As of 31 December 2021, 5,273 unaccompanied children absconded after having accessed reception. Of those, 1,179 were Tunisians, 773 Afghans, 473 Egyptians and 430 Bangladeshi. Most of them were male and over 16 years old.[21]
[1] Article 343 et seq. Civil Code.
[2] Article 18(2-bis) Reception Decree, inserted by L 47/2017.
[3] Article 18(2-ter) Reception Decree, inserted by L 47/2017.
[4] Article 18(5) Reception Decree.
[5] Article 6(3) Procedure Decree.
[6] Article 19(5) Reception Decree, as amended by LD 220/2017.
[7] Article 26(5) Procedure Decree, as amended by L 47/2017.
[8] CNDA Circular No 6425 of 21 August 2017, available in Italian at: http://bit.ly/2Fn38Um.
[9] Article 19(1) Procedure Decree.
[10] Article 13(3) Procedure Decree.
[11] Ibid.
[12] Article 11 L 47/2017.
[13] Children’s Ombudsman, Guidelines for the selection, training and registration in the lists of voluntary guardians pursuant to Article 11 L 47/2017, available in Italian at: http://bit.ly/2Dgl4tS.
[14] Article 11 L. 47/2017 as amended by Article 2 (3) LD 220/2017.
[15] Of the 5 reports, 4 represent a qualitative survey on: unaccompanied foreign minors without a matched voluntary guardian; unaccompanied foreign minors with guardians; voluntary guardians; intercultural relations. The qualitative monitoring, started in November 2019 and concluded in February 2020, involved five pilot regions: Friuli Venezia Giulia, Liguria, Tuscany, Abruzzo and Sicily. The last is a quantitative survey updated to 30 June 2019, carried out with the participation of the juvenile courts and the regional and autonomous provinces guarantors. All reports are available in Italian at: https://bit.ly/3a4nmCq.
[16] Children’s Ombudsman 5th Monitoring report, 2021, available at: https://bit.ly/3uCp6bu.
[17] See Children’s Ombudsman 3rd monitoring report on voluntary guardians, table 14, available at: https://bit.ly/3vYhXCt.
[18] Ministry of Labour, I minori stranieri non accompagnati, 31 December 2020, available in Italian at: https://bit.ly/3hhmWdj.
[19] Ministry of Labour and Social Politics, available in Italian at: https://bit.ly/3Fi1Pl5; Summary available in English at: https://bit.ly/39pfRWb.
[20] Data estracted from: https://bit.ly/38RJOOg and https://bit.ly/3Fi1Pl5.
[21] Ministry of Labour, I minori stranieri non accompagnati, 31 December 2021, available in Italian at: https://bit.ly/3Fi1Pl5.