Admissibility procedure

Italy

Country Report: Admissibility procedure Last updated: 03/06/21

Author

General (scope, criteria, time limits)

 

Article 29 of the Procedure Decree sets out the grounds for inadmissibility. Decree Law 130/2020 has amended Article 29-bis introduced by Decree Law 113/2018 to the Procedure Decree, setting out an additional inadmissibility ground (see ground 4).

The Territorial Commission may declare an asylum application inadmissible where the applicant:

  1. Has already been recognised as a refugee by a state party according to the 1951 Refugee Convention and can still enjoy such projection;[1]
  2. Has made a Subsequent Application after a decision has been taken by the Territorial Commission, without presenting new elements concerning his or her personal condition or the situation in his or her country of origin;[2]
  3. Has made a Subsequent Application during the execution of an imminent removal order (Article 29-bis).[3]
  4. Has made a subsequent application after the previous application has been terminated by the Territorial Commission after the expiry of 12 months from suspension on the basis that the applicant was unreachable (irreperibile) for unjustified leaving of the reception or detention centers and failure to attend the hearing (art.23 bis Procedure Decree). In this case the President can declare the application inadmissible by evaluating reasons for being unreachable.[4]

The President of the Territorial Commission shall conduct a preliminary assessment of the admissibility of the application, to ascertain whether new relevant elements have emerged to the granting of international protection.[5]

If the applicant has already been recognised as a refugee the law provides that the President of the Territorial Commission shall set the hearing of the applicant.[6]

In case of a first subsequent application made during the execution of an imminent removal order, the Procedure Decree now provides that the application must be immediately sent to the President of the competent Territorial Commission, who must conduct a preliminary assessment of the admissibility of the application, within three days, while assessing the risks of direct and indirect refoulement. The application is declared inadmissible in case no new elements have been added, pursuant to article 29, paragraph 1, letter b).

During 2019, the previous formulation of the disposition had determined, following a Circular from the National Commission, an illegitimate omission of the preliminary examination by the competent Territorial Commission, as Questuras automatically declared the inadmissibility of such subsequent applications, inter alia by interpreting the execution phase of a removal order in a broad way. Some rulings of national courts had clarified that this application was contrary to Article 40 of the recast Asylum Procedure Directive. [7]

With the amendments made by Decree Law 130/2020, the law now clarifies that the inadmissibility declaration falls under the responsibility of the Territorial Commission. However, the exclusive role reserved for the President of the Territorial Commission, and not for the Territorial Commission itself, appears inconsistent with the Procedure Decree.[8]

In this regard the CNDA Circular of 3 November 2020[9] refers the need to transmit documents to the Commission that assesses the inadmissibility. The subsequent MOI circular of 13 November 2020 contains an informative annex for applicants, which specifies that the President carries out a preliminary examination but that the Territorial Commission takes the decision on decision on inadmissibility.[10]

ASGI is of the opinion that, even after the reform, Article 29-bis of the Procedure Decree is still likely to violate the recast Asylum Procedures Directive, as the lodging of a subsequent application for the sole purpose of delaying or frustrating removal is not among the grounds of inadmissibility in Article 33(2) of the Directive. (see subsequent application). The provision still does not clarify which phase is considered the execution of an imminent removal order.[11] Moreover, worryingly, the law now provides that in the event of an application declared inadmissible, the applicant can be detained.[12] (see detention).

No suspensive effect is recognized to the appeal including a suspensive request in case of a decision  that declares inadmissible, for the second time, the asylum application pursuant to article 29,(1) b), or declaring the asylum application inadmissible  pursuant to article 29-bis of the Procedure Decree. [13]

Personal interview

The law does not draw a distinction between the interview conducted in the regular procedure and the one applicable in cases of inadmissibility. However, following Decree Law 113/2018, implemented by L 132/2018, it is possible for certain Subsequent Applications to be automatically dismissed as inadmissible without examination.

Appeal

For applications dismissed as inadmissible, the time limit for appealing a negative decision is 30 days, as in the Regular Procedure: Appeal. However, the appeal has no automatic suspensive effect.[14]

Legal assistance

The rules and criteria for legal assistance are the same as in the Regular Procedure: Legal Assistance.

 

 

[1]  Article 29(1)(a) Procedure Decree.

[2] Article 29(1)(b) Procedure Decree.

[3] Article 29-bis Procedure Decree, inserted by Article 9 Decree Law 113/2018 and L 132/2018, amended by Decree Law 130/2020 and L. 173/2020.

[4]  Article 23 bis (2) Procedure Decree.

[5]  Article 29(1-bis) Procedure Decree, inserted by the Reception Decree.

[6] Article 29 (1 bis) Procedure Decree.

[7]  Civil Court of Milan, decision of 13 November 2019 ordered the competent Territorial Commission to conduct the preliminary examination of a subsequent application deemed inadmissible automatically by the Questura, disapplying the Article 29bis of the Procedure Decree considered not in accordance with Article 40 of the recast Asylum Procedure Directive.

[8]  It appears not consistent with the provision of Articles 4 and 29 of the Procedue Decree.

[9]  CNDA Circular no. 8414 of 3 November 2020.

[10]  MOI Circular no. 79839 of 13 November 2020.

[11]  The Court of Cassation will rule on this issue following the order no. 11660/2020.

[12] Article 6 ( 2, a bis) Reception Decree, as amended by Article 3 (3) Decree Law 130/2020 and L. 173/2020. According to Decree Law 130/2020 the provision applies in the limits of available places in CPRs.

[13] Article 35 bis (4) Procedure Decree.

[14]  Article 35-bis(3) Procedure Decree, as amended by Decree Law 113/2018 and L 132/2018.

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