Admissibility procedure

Italy

Country Report: Admissibility procedure Last updated: 30/11/20

Author

General (scope, criteria, time limits)

 

Article 29 of the Procedure Decree sets out the grounds for inadmissibility. Decree Law 113/2018 has introduced the new Article 29-bis to the Procedure Decree, setting out an additional inadmissibility ground.

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

  1. Has already been recognised as a refugee by a state party 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]

According to ASGI, Article 29-bis of the Procedure Decree is 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. Moreover, the Directive does not allow for the omission of the preliminary examination of subsequent applications, except where such application is made by a person with regard to whom a Dublin transfer decision has to be enforced.[4]

The President of the Territorial Commission shall conduct a preliminary assessment of the admissibility of the application, aimed at ascertaining whether new relevant elements have emerged to the granting of international protection.[5] The obligation of the Territorial Commission to inform the applicant of his or her right to submit observations within 3 days in the case of subsequent applications has been deleted by Decree Law 113/2018.[6]

As regards the new inadmissibility ground, the law states that no assessment of the admissibility of new elements needs to be conducted.[7]

On November 13, 2019, the Civil Court of Milan ordered the competent Territorial Commission to conduct the preliminary examination of a subsequent application deemed inadmissible automatically by the Questura pursuant to Article 29bis of the Procedure Decree, disapplying the latter disposition considered not in accordance with Article 40 of the recast Asylum Procedure Directive.[8] (see subsequent application)

 

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.[9]

 

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.

[4] In which case the subsequent application must be examined by the responsible Member States in accordance with the recast Asylum Procedures Directive, including a preliminary examination of the new elements submitted: Article 40(7) recast Asylum Procedures Directive.

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

[6]Article 29(1-bis) Procedure Decree, as amended by Article 9 Decree Law 113/2018 and L 132/2018.

[7]Article 29-bis Procedure Decree, inserted by Article 9 Decree Law 113/2018 and L 132/2018.

[8]  Civil Court of Milan, decision of 13 November 2019.

[9] 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