Legal representation of unaccompanied children

Italy

Country Report: Legal representation of unaccompanied children Last updated: 30/11/20

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.

During monitoring visits carried out between November and December 2017, the Children’s Ombudsman noted a strong lack of communication and listening by the guardians who, for example in the experience of children interviewed in the CAS of Cascina Scarampa, Vercelli, Piedmont were simply seen as those who “accompany them to the Territorial Commission”. In addition, the Ombudsman found serious deficiencies in the provision of information and legal assistance which, according to her, resulted in all unaccompanied children accommodated in that CAS almost automatically submitting an asylum application despite the large number of negative decisions issued by the Territorial Commission. The Ombudsman also found an equally high proportion of asylum seekers among unaccompanied children in first reception centres and CAS in Apulia (Taranto), Lombardy (Como) and Tuscany (Firenze).[14] According to ASGI’s experience, the same problem exists also in other centres.  Following the outcome of the visits carried out in 2018, the Children’s Ombudsman and UNHCR found that 80% of the minors involved expressly asked for greater listening and involvement in the decisions taken on their own behalf and complained about the lack of information and clarifications on the procedure for requesting international protection.[15]

From the data collected by the Children's Ombudsman from 27 Juvenile Courts within the “Monitoring project of the voluntary guardianship for unaccompanied foreign minors”, it emerged that on 31 December 2018, 3,029 volunteer guardians were enrolled in the lists kept by the Juvenile Courts. Of these, most are women (75.4%), people with employment (77.8%) and with a high level of education (83.9% have a degree).[16]

During 2019, the Children's Ombudsman, Save the Children and the Italian Association of Magistrates for Minors and the Family (Aimmf) continued to work on the Ethical Charter, a document of principles intended to guide the guardian in behaviors and decisions to be taken and to guarantee the awareness of their rights to the minor. An English version has also drafted.[17]

In 2019, 6,251 minors were traced on Italian territory. Of these, only 1,680 arrived following disembarkation. The regions most affected by the arrivals of minors were Sicily (21%), for arrivals by sea, Friuli Venezia Giulia (20.8%) and Lombardy (12.8%) for the arrivals by land and by the Balkan route.

Territorial Commissions examined, in 2019, 659 asylum applications of unaccompanied minors compared to the 3,676 examined in 2018:[18]

Unaccompanied asylum-seeking children: 2019

Nationality

Number

Pakistan

198

Eritrea

68

Somalia

63

Afghanistan

40

Nigeria

30

Bangladesh

29

Gambia

16

Senegal

16

Turkey

15

Others

184

Total

659

 

Source: Ministry of Labour.

 

59% of unaccompanied minors' asylum applications were rejected. 21% of applicants have obtained the refugee status, 6.4% were recognized subsidiary protected.

As of 31 December 2019, 5,383 unaccompanied children absconded from accommodation. Of those, 16.4% were Tunisians, 14.7% Afghans and 10.1% Eritreans.[19]

 


[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] Children’s Ombudsman and UNHCR, Minori stranieri non accompagnati: una valutazione partecipata dei bisogniRelazione sulle visite nei centri, available in Italiian at: http://bit.ly/2TExUPE, May 2018, 16.

[15] Children’s Ombudsman and UNHCR, L'ascolto e la partecipazione dei minori stranieri non accompagnati in Italia. Rapporto finale attività di partecipazione AGIA – UNHCR 2017-2018, published in May 2019, available at: https://bit.ly/3cUxKZU; see also Children’s Ombudsman, Relazione al Parlamento, 2019, published in March 2020, available at: https://bit.ly/36pDZ5H.

[16]  Children’s Ombudsman, Report to Parliament, 2019, published on 31 March 2020, available at : https://bit.ly/36pOHsJ.

[17]  Children’s Ombudsman, Nasce la Carta etica del tutore volontario di minore straniero non accompagnato, 15 April 2020, available in Italian at: https://bit.ly/36qeOzZ.

[18]  Ministry of Labour, Monitoring report on unaccompanied minors, 31 December 2019.

[19]Ministry of Labour, I minori stranieri non accompagnati, 31 December 2019, available in Italian at: https://bit.ly/2TASZZg.

 

 

Table of contents

  • Statistics
  • Overview of the legal framework
  • Overview of the main changes since the previous report update
  • Asylum Procedure
  • Reception Conditions
  • Detention of Asylum Seekers
  • Content of International Protection
  • ANNEX I – Transposition of the CEAS in national legislation