Border procedure (border and transit zones)

Italy

Country Report: Border procedure (border and transit zones) Last updated: 30/11/20

Author

General (scope, time limits)

 

Decree Law 113/2018 amended the Procedure Decree introducing a border procedure, applicable in border areas and transit zones.[1] The law postponed the definition and implementation of the procedure to the issuance of a MoI decree, consequently issued on August 5, 2019 and published on 7 September 2019.[2]

The MoI Decree designates the transit and border areas where the accelerated procedure applies.[3]

The decree does not provide any definition of the border and transit areas as it only establishes that the border or transit areas are identified in those already existing in the following provinces:

  1. Trieste and Gorizia;
  2. Crotone, Cosenza, Matera, Taranto, Lecce and Brindisi;
  3. Caltanissetta, Ragusa, Syracuse, Catania, Messina;
  4. Trapani, Agrigento;
  5. Metropolitan city of Cagliari and South Sardinia.[4]

Significantly, many areas correspond to hotspots (Taranto, Catania and Agrigento (Lampedusa hotspot), or CPR (Gorizia and Trieste, Brindisi, Caltanissetta, Cagliari).

Out of the five Territorial Commissions foreseen by the amended Procedure Decree to examine asylum applications subject to the border procedure[5] the MoI Decree has 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.[6]

The border procedure may be applied where the applicant:[7]

  • Makes an application directly at the designated border areas or transit zones after being apprehended for evading or attempting to evade controls;
  • Comes from a Safe Country of Origin.

The border procedure under Article 28-bis(1-ter) of the Procedure Decree follows the same rules as the 9-day Accelerated Procedure relating to applications made from CPR or hotspots under Article 28-bis(1). 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 the receipt of the documentation. The decision must be taken within the following 2 days.[8]

In two circulars issued on 16 October 2019[9] and 18 October 2019[10], the MoI gave directives for the application of the border procedure and it attached the specific C3 form to be used to register the asylum application in these cases.

In accordance with the speed imposed by the procedure, the Circulars state that the application for international protection presented at the border and transit areas has to be formalized by the competent Questura at the time of identification connected to the illegal entry. Also, even if the law provides that the President of the Territorial Commission is responsible to identify the cases for accelerated procedures on the basis of the documentation provided,[11] the Circulars establish that, following the formalisation, the Questura informs the competent Territorial Commission about the application of the border procedure and that the latter, via telephone, fixes the hearing date within 7 days[12]. The hearing date is immediately notified to the applicant together with the delivery of the C3.

Circulars expressly excludes 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. They also exclude the accelerated procedure to be applied to unaccompanied minors and to vulnerable persons, referring to regulatory obligations.[13]

Also, the circulars authorize the establishment of “mobile units” within the territorial commissions in order to carry out the hearing at the border offices. The Circulars assure the availability of accommodations for asylum seekers 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.

ASGI already underlined how the manner in which the provision is worded 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.

Also, the requirement of Article 43 of the Directive to allow the applicant to enter the territory if the determining authority has not taken a decision within 4 weeks has not been incorporated in the Procedure Decree. The Territorial Commission maintains the possibility of extending the duration of the procedure – while 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.[14]

Moreover, according to ASGI, the way the Moi Decree has been drafted, adds other critical issues to the legal framework of the border procedure as the new provisions, referring in a complete generic way to the "transit areas or border areas identified in those existing in the provinces" and not to demarcated areas, 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.[15]

The law provides for 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. However, ASGI has recorded at least two cases in Trieste where vulnerable people, in particular single parents with children, after completing the specific C3 were subject to the border accelerated procedure, considering they came from a safe country of origin.

Among the first cases of border procedure’s applications in Trieste, as of December 2019, three Pakistani asylum seekers have been subject to the accelerated procedure simply because they encountered police not far away from the Slovenian border.

According to the time frame set by the law, their hearing before the Territorial Commission took place after only 6 days from their arrival. However, the Commission decided not to recognize them any protection but decided to apply the ordinary procedure. The ordinary procedure was applied founding that the three asylum seekers had not evaded or tried to evade any control. One of them, in particular, was seriously wounded in the foot, he could not run away and he went to meet the police officers hoping they could help him. Furthermore, all of them told that, in their way from Slovenia, they had always walked straight without having to pass any checks and that they had realized they had crossed the border only from the license plates of the cars. The Territorial Commission of Trieste observed that the behaviour was not compatible with the intention to avoid border controls but nothing was observed about the fact that the border between Slovenia and Italy is purely internal to the European Union and no suspension of the Schengen Agreement was in place when the applicants crossed the internal border.

Thanks to the TC’s decision, the appeal was filed under the ordinary procedure, granting them with automatic suspensive effect. The acceleration of the procedure, however, prevented the applicants from promptly obtaining the useful documentation to prove their origin and their credibility.

Among the first cases at the maritime border, the procedure was applied to some Tunisian citizens rescued at sea in the night between 6 and 7 October 2019. After 20 days of detention in the hotspots of Lampedusa, they were moved to the Questura of Agrigento. At the moment of the formalization of the asylum application, they were informed that a border procedure would have been applied to their applications for the attempt to evade border controls. Subsequently, as the circular of 18 October 2019 excluded the application of the border procedure to persons rescued at sea, the procedure was converted into an accelerated procedure for their coming from a safe country of origin, not taking into any account their vulnerability due to the shipwreck trauma. [16]

In the referring cases reported to ASGI, the persons were subject to the accelerated procedure; therefore audited in a very short term, on the initiative of the competent Questura and not on the decision of the President of the competent Territorial Commission as prescribed by law.

                                                                                                                                                                                                            

Personal interview

 

The same guarantees are 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 Civil Court within 30 days.[17] However, the appeal does not have automatic suspensive effect.[18]

 

Legal assistance

 

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

 


[1] Article 28-bis(1-quater) Procedure Decree, as amended by Article 9 Decree Law 113/2018 and L 132/2018.

[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] Article 28 bis (1 quarter) Procedure Decree.

[6] Article 28-bis(1-ter) Procedure Decree, as amended by Article 9 Decree Law 113/2018 and L 132/2018.

[7] Ibid.

[8]  Article 28-bis(1) Procedure Decree, inserted by the Reception Decree.

[9]  MoI Circular, 16 October 2019 available at : https://bit.ly/3cYKrTs.

[10] MOI Circular, 18 October 2019, available at: https://bit.ly/3cZWXSL.

[11]Article 28 (1 bis) Procedure decree.

[12] Pursuant to Article 28 bis (1-ter).

[13] Probably, in the absence of internal rules in this sense, the reference is to Article 24 (3) Directive 2013/32/UE, see Questione Giustizia, Le nuove procedure accelerate: lo svilimento del diritto di asilo, 3 November 2019, available in Italian at:  https://bit.ly/2zZkJjc.

[14] Article 28-bis(3) Procedure Decree, citing Article 27(3) and (3-bis).

[15] ASGI note, Le zone di transito e di frontiera, September 2019, available at: https://bit.ly/3gmYOmX.

[16] Questione Giustizia, “Le nuove ipotesi di procedure accelerate e di frontiera”, 9 January 2020, available in Italian at: https://bit.ly/2WU3g4M.

[17]  Article 35-bis(2) Procedure Decree, as amended by Article 6 Decree Law 13/2017 and L 46/2017.

[18] Article 35-bis(3) Procedure Decree, as amended by Article 6 Decree Law 13/2017 and L 46/2017, as amended by Article 9 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