Author
General (scope, time limits)
Decree Law 113/2018 amended the Procedure Decree introducing a border procedure applicable in border areas and transit zones. Decree Law 130/2020 and L 173/2020 – not changing the substance of the procedure – amended the legal provision.[1] The law still refers to a MoI decree, which was issued on 5 August 2019 and published on 7 September 2019, for the definition and implementation of the procedure.[2]
Areas where the border procedure can be applied
The MoI Decree designated the transit and border areas where the accelerated procedure applies.[3] The decree does not provide any definition of a border and transit area; it only establishes that the border or transit areas are identified as those already existing in the following provinces:
- Trieste and Gorizia in the north-east of the country;
- Crotone, Cosenza, Matera, Taranto, Lecce and Brindisi in the south;
- Caltanissetta, Ragusa, Siracusa, Catania, Messina, Trapani and Agrigento in Sicily;
- Cagliari in Sardinia.[4]
Many of these areas correspond to hotspots (Taranto, Messina and Agrigento (Lampedusa hotspot), or places affected by sea landings, such as Cagliari, or by land arrivals, such as Trieste and Gorizia, or close to CPR (pre-removal detention centres) such as in Gorizia and Trieste, Brindisi, Trapani, Caltanissetta.
According to ASGI, the way in which the Moi Decree has been drafted adds other critical issues to the legal framework governing the border procedure. This is due to the fact that the provisions only generally refer to the “transit areas or border areas identified in those existing in the provinces” and does not clearly demarcate specific areas to this end, such as ports or airport areas or other places coinciding with physical borders with extra EU countries, seem to conflict with the rules of the European Union and therefore to be illegitimate.[5]
Out of the five Territorial Commissions foreseen by the amended Procedure Decree to examine asylum applications subject to the border procedure[6] the MoI Decree created only two new sections of Territorial Commissions: Matera (section of Bari) and Ragusa (section of Syracuse), therefore assigning to the Territorial Commissions already competent for the border or transit areas the task of examining the related applications – where the conditions exist – with an accelerated procedure.
Under the border procedure, the entire examination of the asylum application can take place directly at the border area or in the transit zone.[7]
Grounds for the border procedure to be applied
The border procedure may be applied where the applicant makes an application directly at the designated border areas or transit zones after being apprehended for evading or attempting to evade controls. However, the circulars of 16 and 18 October 2019 (see infra) expressly excluded the application of the border procedure for attempting to avoid border controls to people rescued at sea following SAR operations and to those who spontaneously turn to the authorities to seek asylum without having been apprehended at the time of landing or immediately afterwards.
Law 50/2023 added the possibility to apply the border procedure to applicants making an application at the border or transit areas and coming from safe countries of origin.[8]
Article 28-bis (6) of the Procedure Decree as amended by Decree Law 130/2020 and L. 173/2020 expressly excludes from accelerated procedures, including the border procedure:
- unaccompanied minors and
- people with special needs, who should coincide with vulnerable people as identified by Article 17 of the Reception Decree (see Accelerated procedure).
According to ASGI, the wording of the provision could allow for automatic application of accelerated border procedure to persons seeking asylum at the border as it makes its application solely contingent on the person having tried to evade controls. In this sense the provision does not comply with Article 43 the Asylum Procedures Directive, as the attempt to evade border controls is not included in the acceleration grounds laid down in Article 31(8) of the Directive which could lead to the application of a border procedure.
The border procedure under Article 28-bis(2)(b) of the Procedure Decree follows the rules of the 9-day Accelerated Procedure. Upon receipt of the application, the Questura immediately transmits the necessary documentation to the Territorial Commission, which must take steps for the personal interview within 7 days of receiving the documentation. The decision must be taken within the following 2 days.[9]
However, when the procedure is done at the border, the procedure can be carried out directly at the border or in the transit zones and the Territorial Commission has to decide within 7 days of receiving the application.[10]
Use of detention
Asylum applicants channelled in the border procedure can now face detention according to the new provision laid down in Article 6 bis of the Reception Decree introduced by L. 50 of 5 May 2023.[11] Detention can last a maximum of 4 weeks;[12] it can apply only during the border procedure and up to the judicial decision on the suspensive effect in case of appeal.[13]
It can also apply only where the applicant lacks a passport and financial guarantees.[14] On 14 September 2023, the MoI decree was issued and detailed the rules concerning the financial guarantee; the maximum amount that could be requested as financial guarantee was amended by a new decree of 10 May 2024[15] (see Hotspot).
DL 145/2024 detailed that, in case of asylum applications at the border of persons apprehended for evading or attempting to evade controls or coming from safe countries of origin (articles 28 bis letters b and b bis), the applicant may not be detained but the same procedure referred to in article 28-bis, (2-bis, of the Procedure Decree applies. In case of appeal, article 35-ter of Procedure Decree applies.
The applicant receives a paper certifying his status (attestato nominativo) different from permit to stay.[16]
Rules on the implementation of the border procedure
By Circular issued on 15 February 2024,[17] the CNDA has given new indications to the territorial commissions to overcome the practice, censured by the courts, according to which, as per the indications included in the previous circular of 16 October 2019, the accelerated procedures, including border procedures, were communicated orally by the Commission to the Questure After this circular, the Commissions began to adopt formal measures to determine the accelerated procedure applicable to the specific case.
Therefore, the hearing date is not anymore included in the C3 but notified, usually together with the c3, to the asylum applicant, with a separate document.
The circulars issued in 2019 authorised the establishment of “mobile units” within the territorial commissions in order to carry out the hearings at the border offices. The Circulars assure of the availability of accommodations for asylum applicants subject to the border procedure within the centres existing in the provinces identified as transit or border areas by the MoI decree 5 August 2019.
The Territorial Commission maintains the possibility of extending the duration of the procedure – during which the applicant would remain at the border or in the transit zone – to a maximum of 18 months to ensure an adequate examination of the application.[18]
The law provides for a specific information obligation to be carried out before the formalisation of the asylum application under the border procedure. The dedicated C3 merely indicates the application of the border procedure in Italian and the reasons why it is applied, also informing about the exclusion from the accelerated procedure for vulnerable people.
Use of the border procedure and relevant caselaw
Among the first cases of border procedure’s applications in Trieste, as of December 2019, three Pakistani asylum applicants have been subject to the accelerated procedure simply because they encountered police not far away from the Slovenian border.
After those cases, probably due to the implementation of readmissions to Slovenia, no more border procedures were applied to people coming from the eastern land border up to August 2023, when it was again applied to some Bangladesh and Pakistani asylum seekers, who were considered having avoided the border controls entering from the land border. The asylum applications were examined under the accelerated procedure applied because of the border procedure and the cases were denied as manifestly unfounded.
The Civil Court of Trieste upheld the suspensive requests included in the appeals and observed that, contrary to what the Territorial Commission of Trieste assumed in its decree, there is no legal provision imposing to deny as manifestly unfounded asylum applications under the border procedure.[19]
Regarding the maritime border, in 2020, the procedure was applied to some Tunisian citizens rescued at sea. That was not the case in 2021 and 2022. The situation changed due to the extension of the border procedure to people coming from safe countries of origin, as provided by the Procedure Decree as amended by the L. 50/2023 and, in general, due to the entry into force of this law.[20]
The aforementioned legislation was applied for the first time in September 2023 with a series of detentions adopted regarding asylum applicants from safe countries of origin. The Court of Catania refused to validate the detentions, as it decided to disapply the provision which allows detention during the border procedure in case of lack of financial guarantee as detailed in the Moi Decree of 14 September 2023, considering it incompatible with the Reception Directive. This led the Ministry of the Interior to challenge these decisions before the Court of Cassation, which, on 8 February 2024, made a preliminary reference to the Court of Justice of the European Union requesting to assess the compatibility of the new legislation with EU law. The decision of the Luxembourg Court is expected in the coming months (see Access to procedure and registration, Hotspot).
Between August and November 2024 there have been relevant rulings by the Courts competent to examine the border procedures of asylum seekers detained in the centres of Porto Empedocle, Pozzallo and Albania, which in many cases did not validate the detention. As discussed in previous sections of the report, in some cases the Courts, in the light of the incompatibility with European law of some aspects of the border procedure regulations and of the list of safe countries of origin referred questions to the CJEU for a preliminary ruling under Article 267 TFEU.[21] (see Safe countries concept)
Personal interview
The same guarantees as those applied during the Regular Procedure: Personal Interview are applied.
Appeal
An appeal against a negative decision in the border procedure has to be lodged before the competent Civil Court within 7 days.[22] Article 35 ter (1) of the Procedure Decree provides that the filing of the appeal or request for suspension does not suspend the enforcement of the rejection and removal order. However, Article 35 ter (3) provides that, from the moment the appeal is lodged until the adoption of the decision on suspension, the appellant cannot be expelled or removed from the place in which they are detained.[23]
When an appeal is lodged, the Territorial Commission and the public prosecutor can file defence notes in the following 2 days. Within the same time, the Commission that adopted the decision is required to make available to the Court and to the applicant the minutes of the hearing or, where possible, the transcript of the video recording, as well as a copy of the application for international protection and all the documentation acquired during the examination procedure. Upon expiry of the deadline, a single judge decides on the appeal within 5 days.[24]
Legal assistance
The rules and criteria for legal assistance are the same as in the Regular Procedure: Legal Assistance.
[1] Article 28-bis (2)(b) Procedure Decree, as amended by Decree Law 130/2020 and L 173/2020
[2] MoI Decree, 5 August 2019, published on Gazzetta Ufficiale as of 7 September 2019: https://bit.ly/3e8wXES.
[3] Article 28 bis (1) (1-ter) and (1 – quater) of the Procedure Decree.
[4] Moi Decree 5 August 2019, Article 2.
[5] ASGI note, Le zone di transito e di frontiera, September 2019, available at: https://bit.ly/3gmYOmX.
[6] Article 28 bis (4) Procedure Decree.
[7] Article 28-bis(2)(2) Procedure Decree, as amended by Decree Law 130/2020.
[8] Article 28 bis (2 b) bis) of the Procedure Decree introduced by L. 50 of 5 May 2023 converting the DL 20/2023.
[9] Article 28-bis(2) (b) Procedure Decree as amended by Decree Law 130/2020 and L 173/2020.
[10] Article 28 bis (2- bis) Procedure Decree.
[11] Article 6 bis Reception Decree introduced by L. 50 of 5 May 2023 converting the DL 20/2023.
[12] Article 6 bis (3) Reception Decree introduced by L. 50 of 5 May 2023 converting the DL 20/2023.
[13] Article 6 bis (1) Reception Decree introduced by L. 50 of 5 May 2023 converting the DL 20/2023.
[14] Article 6 bis (2) Reception Decree introduced by L. 50 of 5 May 2023 converting the DL 20/2023.
[15] MoI Decree of 10 May 2024, available here.
[16] Article 6 bis Reception Decree refers to Article 4 (2) Procedure Decree.
[17] CNDA Circular, available in Italian here; see also here.
[18] Article 28-bis(5) Procedure Decree, citing Article 27(3) and (3-bis).
[19] Civil Court of Trieste, decree of 14 August 2023, case no. 3156/2023.
[20] Article 28 bis (2 b) bis) of the Procedure Decree introduced by L. 50 of 5 May 2023 converting the DL 20/2023.
[21] ASGI, ‘Una raccolta della giurisprudenza nell’ambito delle procedure di frontiera attuate a Porto Empedocle, Pozzallo e in Albania’, 19 November 2024, available in Italian here.
[22] Article 35-bis(2 ter) Procedure Decree, as amended by Decree Law 145/2024 converted into L. 187/2024.
[23] Article 35-ter (1 and 3 3) Procedure Decree, as amended by DL 145/2024.
[24] Article 35 ter (2) Procedure Decree.