Dublin

Italy

Country Report: Dublin Last updated: 30/11/20

Author

General

 

Dublin statistics: 2019

Outgoing procedure

Incoming procedure

 

Requests

Transfers

 

Requests

Transfers

Total

4,042

579

Total

35,255

5,979

Source: Ministry of Interior, Dublin Unit, data obtained by ASGI (Data up to date 31 December 2019)

 

In 2019 there were 7,296 take charge requests in the incoming procedure and 27,959 take back requests. With regards to the outgoing procedure, there were 790 take-charge requests and 3,252 take back requests.

As of September 2019, most of the incoming requests came from Germany and France, followed by: the Netherlands, Austria, Switzerland, Belgium, Sweden, the United Kingdom, and Luxembourg.[1]

The data, reported by media as of May 2019, caused quite a stir because the incoming Dublin transfers had exceeded the number of asylum seekers disembarked.[2] While the government boasted fewer arrivals due to the policy of closed ports, the data showed however that a large part of asylum seekers return to Italy from the countries of northern Europe, mostly from Germany. This circumstance revealed once again the contradictory position of the previous interior Minister who had expressed opposition to the reform of the Dublin Regulation.

The proportion was not maintained by the end of the year, when the incoming Dublin transfers were only about half of the people disembarked (11,471 people).

By the end of 2019, out of 34,728 pending asylum applications, 8,075 were suspended because of the ongoing Dublin procedure.[3]

Application of the Dublin criteria

The Dublin Unit tends to use circumstantial evidence for the purpose of establishing family unity such as photos, reports issued by the caseworkers, UNHCR’s opinion on application of the Dublin Implementing Regulation, and any relevant information and declarations provided by the concerned persons and family members.

In 2019, the Dublin Unit dealt with 64 new cases of unaccompanied foreign minors eligible for the Dublin  family reunification procedure, based on Articles 8 and 17 (2) of the Regulation and another 100 cases registered in the previous years.

As for 2018, in 2019 in most cases of unaccompanied children’s family reunification, the child was without documents. Therefore, the request was supported by a copy of the identity document of the relative, by genealogical trees and further interviews on the personal history of the child and his relationship with the family member and by family photos.[4]

In 2018, the Children’s Ombudsman noted a general absence of defined and homogeneous procedures for the family reunification procedure and a general lack of information to minors, causing distress, disorientation and distrust, and significantly increasing the risk of absconding from reception centres.[5]

Of the 164 unaccompanied children who were involved in the procedure, as of 31 December 2019, 67 have been transferred and 32 were awaiting the transfer, while 28 have absconded from the procedure (most of them after the rejection of the request) and in 27 cases the requests have been definitively rejected. The breakdown of outgoing transfers of unaccompanied children in 2019 was as follows:

Outgoing transfers of children under the Dublin Regulation: 2019

Country

Number of transfers

Germany

14

Sweden

14

United Kingdom

13

Holland

8

Norway

7

France

4

Switzerland

4

Portugal

2

Liechtenstein

1

Total

67

Source: Ministry of Labour

 

Family reunification was carried out with parents in 9 cases, siblings in 37 cases, uncles in 19 cases and cousins in 2 cases.[6]

The discretionary clauses

The Dublin Unit has not provided data on the application of the discretionary clauses under Article 17 of the Dublin Regulation. However, according to ASGI’s experience, it seems that the “sovereignty clause” is more frequently applied than the “humanitarian clause”, in particular on vulnerability and health grounds.

As of February 2019, the Dublin Unit applied the sovereignty clause, before the time to appeal against the transfer decision to Croatia had expired and after a review request, in favour of an Iraqi family whose daughter had been reached by gunshots fired by the Croatian police.

In some cases in 2018, courts held that the “sovereignty clause” may only be applied as long as a decision on the asylum application has not been issued by any Member State concerning the individual applicant,[7] and in “take back” cases the court is not required to assess risks of refoulement upon potential return to the country of origin.[8] Nevertheless, the Civil Court of Rome ordered the application of Article 17(1) and annulled the transfer to Norway where the applicant had already received a negative decision on his asylum application. The Court took into account the risk situation for personal safety and respect for fundamental rights in the applicant's country of origin, Afghanistan, in addition to the applicant's young age and the absence of a support network in the country of origin.[9]

In 2019, the Civil Court of Rome confirmed its orientation on the application of the sovereignty clause for Afghan citizens who risked indirect refoulement: by a decision issued on 10 May 2019, the Court annulled the transfer to Germany of an Afghan asylum seeker[10] where the applicant risked to be repatriated to his country of origin because of the negative decision on his asylum application.

Also, on May 10, 2019, the Court of Rome applied Article 17 (1) and annulled the transfer to Austria of a Pakistani applicant because of the violation of information obligations pursuant to Articles 4 and 5 of the Dublin Regulation and considering the risks he would have faced when repatriated in Pakistan.[11]

Notably, as of 11 October 2019, the Civil Court of Rome ordered the application of Article 17 (1) and annulled the transfer to Germany of a Pakistani family taking into account the needs and care of their minor child born immediately after the transfer decision to Germany issued by the Italian Dublin Unit.[12]

Later, the entire family got the refugee status in Italy.

The Civil Court of Trieste, which has become competent for a huge number of Dublin appeals (see later procedure) as of March 2019 annulled the transfer of an Afghan asylum seeker to Belgium and applying Article 17(1) because of the risks the applicant would have faced in case of return to Afghanistan.[13]

Later, the same Court changed its orientation: on 5 November 2019, the Court refused to cancel the transfer of an Afghan citizen to Sweden considering Sweden as the only State responsible to assess the risk for the applicant in case of repatriation to his country of origin and arguing that the discretionary clause of Article 17(1) is enforceable only by the State not by the judges.[14]

In the same way, the Civil Court of Trieste refused to apply Article 17(1) to many Iraqi citizens who had already received rejection of their asylum application in the destination countries.[15]

 

Procedure

 

The staff of the Italian Dublin Unit has significantly increased in 2018 and benefitted from the support of EASO personnel, mainly in relation to outgoing requests, family reunification and children. Also in 2019, EASO interim staff supported the Italian Dublin Unit.[16]

Decree Law 113/2018 envisages the creation of up to three new territorial peripheral units of the Dublin Unit, to be established by Decree of the Ministry of Interior in identified Prefectures.[17] A Circular of the Ministry of Interior issued on 27 December 2018 launched the experimental start-up of a local branch of the Dublin Unit in Gorizia, Friuli-Venezia Giulia, for the time being only commissioned to treat peripherally the cases falling under the Dublin Regulation. No transfer decisions had been issued directly by this unit at the time of writing.

All asylum seekers are photographed and fingerprinted (fotosegnalamento) by Questure who systematically store their fingerprints in Eurodac. When there is a Eurodac hit, the police contacts the Italian Dublin Unit within the Ministry of Interior. In the general procedure, after the lodging of the asylum application, on the basis of the information gathered and if it is considered that the Dublin Regulation should be applied, the Questura transmits the pertinent documents to the Dublin Unit which examines the criteria set out in the Dublin Regulation to identify the Member State responsible.

Since December 2017, a specific procedure has been implemented in Questure of Friuli-Venezia Giulia region, on the basis that most of asylum seekers arriving in this region from Nordic countries or the Balkan route fall under the Dublin Regulation. ASGI has witnessed cases where the Questure fingerprinted persons seeking asylum in the region as persons in “irregular stay” (“Category 3”) in the Eurodac database,[18] instead of “applicants for international protection” (“Category 1”).[19] The Dublin Unit therefore justifies the implementation of the Dublin transfer prior to the lodging of the application on the basis that no asylum application has been made; it should also be noted that “Category 3” fingerprints are not stored in the Eurodac database.[20]

ASGI has witnessed a unique acceleration of the procedure in the Questure in 2019, where people are notified of a transfer decision within one or two months of arrival and fingerprinting in Italy. In most cases, the Questure of Trieste and Gorizia notify the transfer decision without even proceeding with the lodging (verbalizzazione) of the asylum application, as they set the verbalizzazione appointment at a distant date to be able to obtain replies from the Dublin State concerned beforehand. Subsequently, they cancel the lodging appointments, and notify the transfer decisions.

Asylum seekers are not properly informed about the procedure or given the possibility to highlight any family links or vulnerabilities. On 25 March 2019, the Civil Court of Rome annulled the transfer of an Afghan citizen to Norway on the basis that the Dublin Unit had not complied with the information obligations set out in Article 4 of the Dublin Regulation, which resulted in the Questura of Gorizia only informing the applicant about the asylum procedure.[21]

According to information available to ASGI, despite the acceleration of the procedure, not many transfers have been made as most of the asylum seekers concerned have submitted appeals, leading to transfers being suspended by the courts, while others have become untraceable or apply for asylum only after having moved onward to other regions of the country.

 

Individualised guarantees

 

The Dublin Unit systematically issues outgoing requests to all countries when potential responsibility criteria are triggered. There are no reports of cases where the Dublin Unit has requested individual guarantees before proceeding with a transfer, even in the case of vulnerable persons.

In some cases, the Dublin Unit was not informed about the vulnerability by Questure. This may be related to the fact that personal interviews provided by Article 5 of the Dublin regulation are not properly conducted or they are not conducted at all.

 

Transfers

 

In case another Member State is considered responsible under the Dublin Regulation, the asylum procedure is terminated.[22] The Dublin Unit issues a decision that is transmitted to the applicant through the Questura, mentioning the country where the asylum seeker will be returned and the modalities for appealing against the Dublin decision.[23] Afterwards, the Questura arranges the transfer.

The applicants must then present themselves at the place and date indicated by the Questura. Applicants held in CPR are brought by the police authorities to the border from which they will be transferred to the responsible Member State.

Where an appeal is lodged against the transfer decision, the six-month time limit for a transfer starts running from the rejection of the request for suspensive effect, otherwise from the court’s decision on the appeal itself.[24] Since the practical organisation of the transfer is up to the Questura, it is difficult to indicate the average time before a transfer is carried out. The length of the Dublin procedure depends on many factors, including the availability of means of transport, the personal condition of the person, whether or not the police needs to accompany the person concerned etc. However, as the majority of applicants abscond and do not present themselves for the transfer, the Italian authorities often ask the responsible Member State for an extension of the deadline up to 18 months, as envisaged under Article 29(2) of the Dublin Regulation.

While waiting for the result of their Dublin procedure, asylum seekers are not detained.

The applicant usually waits for months without knowing if the Dublin procedure has started, to which country a request has been addressed and the criteria on which it has been laid down. In the majority of cases, it is only thanks to the help of NGOs providing adequate information that asylum seekers are able to go through the whole Dublin procedure. When necessary, the NGOs contact the authorities to get the required information.

According to the data published by the Ministry of Labour in 2017, the time period between a “take charge” request for unaccompanied children and its acceptance by the destination country was 35 days on average, while it was on average 46 days between the acceptance of the request and the actual transfer of unaccompanied children.[25] No data have been provided for 2019. However, according to ASGI’s experience, the duration of the procedure is much longer.

Without prejudice to the one currently applied in Friuli-Venezia Giulia, the procedure may last over one year in the rest of the country.

With a Circular Letter of 25 February 2020, the Italian Dublin Unit informed the Dublin Units that due to the ongoing health emergency all Dublin flights are suspended, both incoming and outgoing.

 

Personal interview

 

With the exception of the lodging of the asylum application by the competent Questura, personal interviews of asylum seekers are rarely envisaged during the Dublin procedure.

In Friuli-Venezia Giulia, the Dublin procedure is mostly conducted before the application is lodged. In this case, applicants are interviewed by the Questura according to Article 5 of the Dublin Regulation.

On 8 January 2020, the Civil Court of Rome cancelled a transfer decision to Germany adopted by the Dublin Unit against an Afghan citizen because the written summary of the interview did not allow to verify the compliance with the participation guarantees provided for in Articles 4 and 5 of the Dublin Regulation as it did not indicate the language in which the interview had taken place and it was signed by an unidentified "cultural mediator" whose spoken language was not clarified.[26]

 

Appeal

 

Asylum seekers are informed of the determination of the Dublin Unit concerning their “take charge” / “take back” by another Member State at the end of the procedure when they are notified through the Questura of the transfer decision. Asylum seekers may be informed on the possibility to lodge an appeal against this decision generally by specialised NGOs.

An applicant may appeal the transfer decision before the Civil Court of Rome within 30 days of the notification of the transfer.[27] In case applicants are accommodated in asylum seekers’ reception centres when notified about the transfer decision, territorial jurisdiction is determined on the basis of where the centres are located. Therefore the competence falls within the specialised sections of the territorially competent Civil Courts and not the location of the Dublin Unit. The assistance of a lawyer is necessary for the lodging of an appeal, but the applicant can apply for legal aid.

Competent court

Until the end of 2015, the transfer decisions issued by the Dublin Unit were challenged before the administrative courts: at first instance within 60 days from the notification before the Administrative Court of Lazio and, at the second appeal instance before the Council of State (Consiglio di Stato). During 2016, however, the administrative courts expressed with several decisions the position that the Dublin procedure should be understood as a phase of the asylum procedure and, consequently, “Dubliner” asylum seekers as holders of an individual right and not a mere legitimate interest. The administrative courts have therefore stated that the judgment should be entrusted to the jurisdiction of ordinary courts, meaning the “natural judge” of individual rights. In this context, the first significant decision was taken on 18 December 2015 by the Council of State,[28] and subsequently by the Administrative Court of Lazio.[29] Reiterating this interpretation, Decree Law 13/2017, implemented by L 46/2017, has designated the specialised section of the Civil Courts as competent to decide on appeals against transfer decisions.[30]

During 2018, the Civil Court of Rome started declaring lack of jurisdiction to decide on appeals lodged by persons accommodated in reception centres throughout the country. According to the Court, in case applicants were accommodated when notified about the transfer decision, territorial jurisdiction should be exclusively determined on the basis of the place of the centres are located, and therefore fall within the specialised sections of the territorially competent Civil Courts and not the location of the Dublin Unit, i.e. Rome.[31] This is echoed by the prospective establishment of local branches of the Dublin Units in specific Prefectures following the 2018 reform.

In 2019, the matter was brought before the Court of Cassation which, initially, interpreted the current legislation establishing the jurisdiction of the Civil Court of Rome.[32]

After the decisions of the Court of Cassation, the Court of Rome, however, continued to consider itself incompetent.

Subsequently, the Court of Cassation expressed an opposite orientation in line with the one of the Civil Court of Rome, recognizing that the territorial jurisdiction depends on the position of the reception centre at the moment of the notification of the transfer decision to the applicants.[33]

In case of appeals brought by people not accommodated at the time they were notified with the transfer decision, the jurisdiction is indisputably up to the Civil Court of Rome.

Suspensive effect

Article 3 of the Procedure Decree does not unequivocally provide that the transfer is suspended until the time limit for lodging an appeal expires. It states that the lodging of the appeal automatically suspends the transfer if an application for suspension is in in the appeal.[34] According to ASGI, this should be interpreted as meaning that transfers may be carried out only once the time limit for an appeal has elapsed without an appeal being filed or with an appeal not indicating a request for suspension.

To the knowledge of ASGI, in 2019, the Questure waited for the 30-day deadline for lodging the appeal to expire before proceeding with the organisation of the transfer.

In Friuli-Venezia Giulia, Questure do not proceed with the transfer for those who provide proof of filing the appeal. In Trieste, together with the proof of filing the appeal, the Questura issues a new residence permit to the applicant. In Gorizia the Questura did not issue a residence permit until a decision of suspension was taken by the Court, which in many cases was only notified after many months.

According to the law, the Court should decide on the application for suspensive effect within 5 days and notify a decision to the parties, who have 5 days to present submissions and 5 days to reply thereto. In this case, the Court must issue a new, final decision, confirming, modifying or revoking its previous decision.[35] In ASGI’s experience, these timeframes were never complied with by the Civil Court of Rome in 2019.

The appeal procedure is mainly written. Within 10 days of the notification of the appeal, the Dublin Unit must file the documentation on which the transfer decision is based and, within the same time limit, may file its own submissions. In the following 10 days, the applicant can in turn make submissions.[36] The court will set a hearing only if it considers it useful for the purposes of the decision.[37]

The decision must be taken within 60 days from the submission of the appeal and can only be appealed before the Court of Cassation within 30 days. The Court of Cassation should decide on the appeal within 2 months from the lodging of the onward appeal.

 

Legal assistance

 

The same law and practices described under the section on Regular Procedure: Legal Assistance apply to the Dublin procedure with regard to legal assistance, including the merits and means tests.

 

Suspension of transfers

 

There is no official policy on systematic suspension of Dublin transfers to other countries.

Greece: according to ASGI experience no Dublin transfers to Greece were made in 2019.

Hungary: In late September 2016, the Council of State annulled a transfer to Hungary, defining it as an unsafe country for Dublin returns. The Council of State expressed concerns on the situation in Hungary, considering measures such as the planned construction of an “anti-immigrant wall” expressing the cultural and political climate of aversion to immigration and to the protection of refugees; the option of discontinuing an asylum application if the applicants leave their residence designated for more than 48 hours without permission and the extension of the detention period of asylum seekers.[38]

Bulgaria: In September 2016 the Council of State also suspended several transfers to Bulgaria on the basis that the country is unsafe.[39] The Council of State expressed concerns about the asylum system in Bulgaria due to the critical condition of shelters, some of which appear as detention centres, and more generally of the cultural climate of intolerance and discrimination that reigns in public opinion and among the leaders in the government towards refugees.[40] In a ruling of November 2017, the Council of State reaffirmed its position and suspended the transfer of an Afghan asylum seeker to Bulgaria.[41]

Nevertheless, the Italian Dublin Unit has continued to issue transfer decisions to Bulgaria, which have been annulled by Civil Courts on various occasions. The Civil Court of Rome annulled the transfer of an Iraqi applicant in October 2018.[42] In January 2019, the Civil Court of Rome annulled a transfer to Bulgaria of a pregnant woman from Iraq considering, pursuant to the rulings of the Council of State, that the transfer would have been a violation of Article 3(2) of the Dublin Regulation and Article 4 of the Charter of Fundamental Rights of the European Union, as respect for the fundamental rights of asylum seekers is not guaranteed in Bulgaria.[43] In February 2019, the Court also annulled the transfer of the woman’s husband.[44]

 

The situation of Dublin returnees

 

According to Ministry of Interior’s reply to ASGI’s information request, Italy received 5,979 incoming transfers in 2019.

Reception guarantees and practice

The Ministry of Interior Circular of 14 January 2019 specifies that Dublin returnees who had already applied for asylum prior to leaving Italy should be transferred by the competent Prefecture from the airport of arrival to the province where their application was lodged. If no prior asylum application had been lodged, they should be accommodated in the province of the airport of arrival. Family unity should always be maintained.[45]

The circular does not clarify how the prefectures should facilitate the transfer of the asylum seeker. This circumstance may externally expose the Dublin returnee to face, on its own, the obstacles placed in front of some Questure for the access to the asylum procedure, especially in the absence of a domicile. (see registration).

Following the Tarakhel v. Switzerland ruling,[46] in practice the guarantees requested were ensured mainly to families and vulnerable cases through a list of dedicated places in the SPRAR system (see Types of Accommodation), communicated since June 2015 to other countries’ Dublin Units.[47] However, following the 2018 reform of the reception system, Dublin returnees as asylum seekers no longer have access to second-line reception SPRAR, now renamed SIPROIMI. Accordingly, places in second-line reception for vulnerable Dublin returnees are no longer reserved, as asylum seekers do not have access to this type of accommodation.

In a Circular sent to other countries’ Dublin Units in the form of an email on 8 January 2019, the Italian Dublin Unit expressly confirmed this new regime and stated the following:

“Consequently, all applicants under the Dublin procedure will be accommodated in other Centres referred to in Legislative Decree No. 142/2015.

In consideration of the efforts made by the Italian Government in order to strongly reduce the migration flows, these Centres are adequate to host all possible beneficiaries, so as to guarantee the protection of the fundamental rights, particularly the family unity and the protection of minors.”[48]

The latest Circular has been deemed by Germany and the Netherlands as sufficient basis to carry out transfers without requesting individual guarantees.[49]

The letter seems to imply that places are no longer reserved in second-line reception even for vulnerable Dublin returnees who are beneficiaries of international protection.

On 17 December 2019, the Federal Administrative Court of Switzerland considered that, following the issuance of Legislative Decree 113/2018 ("Salvini" decree), the reference, by the Italian Authorities, to "circular" 8 January 2019 sent by the Dublin Unit of the Ministry of Interior to the EU Member States cannot be considered sufficient guarantee – in light of the jurisprudence of the ECtHR and the Swiss one – to exclude the risk of violation of art. 3 of the Convention in case of transfer to Italy of asylum seekers. Italy must therefore provide additional guarantees regarding specific and concrete treatment in reception centres, with particular reference – but not only – to medical treatment.[50]

As regards the implementation of incoming transfers, only when Italy expressly recognises its responsibility under the Dublin Regulation, national authorities indicate the most convenient airport where Dublin returnees should be returned in order to easily reach the competent Questura, meaning the Questura of the area where the asylum procedure had been started or assigned. In other cases, where Italy becomes responsible by tacit acceptance of incoming requests, persons transferred to Italy from another Member State usually arrive at the main Italian airports such as Rome Fiumicino Airport and Milan Malpensa Airport. At the airport, the Border Police provides the person returned under the Dublin Regulation with an invitation letter (verbale di invito) indicating the competent Questura where he or she has to go.

Usually, Dublin returnees with an invitation letter (inviti) have three days time to arrive to the competent Questura. Time does not change considering the distance to reach. [51

In summer 2019 a group of Eritreans arrived at Milan Malpensa were asked to reach Reggio Calabria, after the arrival from Germany which had not made agreements with Italy about their arrival. Often, this is reported to occur in cases of tacit acceptance of incoming requests: in this case people are off the list and the authorities are not warned of their arrival.[52]

From 20 December 2019, the Questura of Varese organizes the transfers of the Dublin returnees from Malpensa airport to the chosen territories in Lombardy.  People not included in advance in the list (often people transferred after of tacit acceptance) are in any case addressed to the Questura of Varese.

On 12 December 2018 the Danish Refugee Council and Swiss Refugee Council published a report with their monitoring of the situation of 13 vulnerable Dublin returnees in Italy in 2017-2018.[53] The report illustrates the arbitrariness underlying Dublin returnees’ reception by the authorities, timely access to accommodation and to the asylum procedure, and quality of reception conditions. Many asylum seekers have had to wait for several hours or even days without any support at airports such as Rome Fuimicino Airport and Milan Malpensa Airport before being received by the police. Some Dublin returnees were denied access to the Italian reception system upon arrival altogether or had to wait a long time before they were accommodated in SPRAR facilities.[54]

It should be noted that if returnees used to live in asylum seekers’ reception centres before leaving Italy, they could encounter problems on their return in submitting a new accommodation request. In fact, due to their first departure and according to the rules provided for the Withdrawal of Reception Conditions, the Prefecture could deny them access to the reception system.[55]

The Danish Refugee Council and Swiss Refugee Council widely reported substandard conditions in first reception centres and CAS, falling far below standards for persons with special needs. The two organisations also found that oftentimes the receiving authorities were unaware of the specific vulnerability of the Dublin returnees.[56] In one incident at Caserma Caraverzani, Udine, Friuli-Venezia Giulia, an Afghan asylum seeker returned from Austria to Italy committed suicide in August 2018. The person was under treatment by the local mental health service in Austria. It seems that no information was provided about his health status before or after the Dublin transfer.[57]

In January 2020, the Swiss Refugee Council published an update about their monitoring of the situation on reception conditions in Italy, also in relation to Dublin returnees, that generally confirms the findings of their previous monitoring, as mentioned above. [58] They further reported that in Italy until now there is no standardized, defined procedure in place for taking them (back) into the system.

Re-accessing the asylum procedure

Access to the asylum procedure is equally problematic. Asylum seekers returned under the Dublin Regulation have to approach the Questura to obtain an appointment to lodge their claim. However, the delay for such an appointment reaches several months in most cases.[59] The competent Questura is often located very far from the airport and asylum seekers have only few days to appear there; reported cases refer to persons arriving in Milan, Lombardy and invited to appear before the Questura of Catania, Sicily. In addition, people are neither accompanied to the competent Questura nor informed of the most suitable means of transport thereto, adding further obstacles to reach the competent Questura within the required time. In some cases, however, people are provided with tickets from the Prefecture desk at Milan

Malpensa Airport.

Since February 2020, an information desk coordinated by the Waldensian Diaconia of Milan, is operating at Milano Malpensa. The project workers, who replaced the Versoprobo cooperative, are allowed to buy tickets for Dublin returnees invited to the Questura of Varese. They can contact cultural mediators by phone, in order to provide more information in the mother languages needed.

If the competent Questura where people are invited is different from the one of Varese, Dublin returnees have to provide by themselves the tickets to get there.

As for Rome, often Dublin returnees benefit from the NGO “A Buon Diritto” mobile help desk based in Tiburtina Station. Once arrived in Roma Fiumicino airport, Dublin are orally informed about the procedure and endowed with an invitation letter to the competent Questura. They have to reach the Questura autonomously and at their own expense.

According to “A Buon Diritto” experience, Dublin returnees with international protection hardly enter Siproimi and, much more likely, they get to swell the ranks of homeless people.

Dublin returnees face different situations depending on whether they had applied for asylum in Italy before moving on to another European country, and on whether the decision on their application by the Territorial Commission had already been taken.[60]

  • In “take charge” cases where the person had not applied for asylum during his or her initial transit or stay in Italy before moving on to another country,[61] he or she should be allowed to lodge an application under the regular procedure. However, the person could be considered an irregular migrant by the authorities and be notified an expulsion order. In September 2018 a Libyan national arriving from Germany at Milan Malpensa Airport after Italy had accepted its responsibility was not allowed to seek asylum and received an expulsion order. An ASGI lawyer is representing the individual before the Magistrates’ Court (giudice di pace) of Varese that has not yet decided whether the removal order should be suspended or not. As reported to ASGI, other Dublin returnees were also denied the possibility to apply for asylum in at Milan Malpensa Airport in 2018.

 

  • In “take back” cases where the person had already lodged an asylum application and had not appeared for the personal interview, the Territorial Commission may have suspended the procedure on the basis that the person is unreachable (irreperibile).[62] He or she may request a new interview with the Territorial Commission if a final decision has not already been taken after the expiry of 12 months from the suspension of the procedure. If the procedure has been concluded, the new application will be considered a Subsequent Application and will be subject to the stringent regulations set out by the Procedure Decree following the 2018 reform.

 

  • In “take back” cases where the person’s asylum application in Italy has already been rejected by the Territorial Commission,[63] if the applicant has been notified of the decision and lodged no appeal, he or she may be issued an expulsion order and be placed in a CPR. According to the new notification procedure applied since the end of October 2018 (see Regular Procedure: General), the same could happen even in case the applicant had not been directly notified of the decision, since in case the applicant is deemed unreachable (irreperibile), the Territorial Commission notifies the decision by sending it to the competent Questura and notification is deemed to be complete within 20 days of the transmission of the decision to the Questura.[64]

 

Courts from other countries have not taken a uniform approach to the compliance of transfers to Italy with fundamental rights, including following the amendments to the reception system by Decree Law 113/2018. Inconsistent court decisions have been noted in Germany and the Netherlands. In Switzerland, courts have not changed their previous position on the legality of transfers to Italy.[65] In the United Kingdom, however, the Upper Tribunal annulled a transfer to Italy on 4 December 2018 concerning one asylum seeker and one beneficiary of international protection finding that the threshold for ill-treatment prohibited by Article 3 ECHR may be met in cases involving demonstrably vulnerable asylum seekers and beneficiaries of international protection.[66]

 


[1] Ministry of Interior, data obtained by Altreconomia.

[2] Il Sole 24Ore, I migranti rispediti in Italia sono più di quelli che sbarcano, 9 May 2019, available in Italian at: https://bit.ly/3e9BLdh.

[3] Ministry of Interior, data available at : https://bit.ly/2ysenbL.

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

[5]  Children’s Ombudsman and UNHCR, Minori stranieri non accompagnati: una valutazione partecipata dei bisogniRelazione sulle visite nei centri, May 2018, available in Italian at:  http://bit.ly/2TExUPE, 14-15.

[6] Ministry of Labour, Monitoring report on unaccompanied foreign minors, , 31 December 2019, 21.

[7]  See e.g. Civil Court of Bologna, Decision 1796/2018.

[8]  See e.g. Civil Court of Milan, Decision 29819/2018; Civil Court of Caltanissetta, Decision 482/2018; Civil Court of Caltanissetta, Decision 1398/2018.

[9] Civil Court of Rome, Decision 7899/2018, 5 June 2018, EDAL, available at: https://bit.ly/2DbUCEq.

[10]  Civil Court of Rome, Decision 15246/2019, 10 May 2019.

[11] Civil Court of Rome, Decision 15369/2019, 10 May 2019, available in Italian at: https://bit.ly/2ZB43cv.

[12]  Civil Court of Rome, Decision 20991/2019, 11 October 2019.

[13]  Civil Court of Trieste, decision 605/2019, 15 March 2019.

[14] Civil Court of Trieste, decision 5 November 2019.

[15]  See e.g. Civil Court of Trieste, decision 3095/2019 of 21 October 2019; Civil Court of Trieste decision 105/2020 of 20 January 2020; Civil Court of Trieste, decision 108/2020 PF 20 January 2020.

[16] Information provided by EASO, 13 February 2019.

[17]  Article 3(3) Procedure Decree, as amended by Article 11 Decree Law 113/2018.

[18]  Article 17 Eurodac Regulation.

[19]  Article 9 Eurodac Regulation.

[20]  Article 17(3) Eurodac Regulation.

[21]  Civil Court of Rome, Decision 6256/2019, 25 March 2019.

[22]  Article 30(1) Procedure Decree.

[23] Presently, even though L 46/2017 has recognised the jurisdiction of the Civil Court of Rome and stated that the appeal has to be lodged within 30 days, many decisions still direct people to appeal before the Administrative Court of Lazio within 60 days.

[24]  Article 3(3-octies) Procedure Decree, as amended by L 46/2017.

[25] Ministry of Labour, I minori stranieri non accompagnati in Italia, 31 December 2017, available in Italian at: http://bit.ly/2FvU6Aj, 14.

[26]  Civil Court of Rome, decision n. 1855/2020 of 8 January 2020.

[27]  Article 3(3-ter) Procedure Decree, as amended by Article 6 Decree Law 13/2017 and L 46/2017.

[28] Council of State, Decision 5738/2015, 18 December 2015, available at: http://bit.ly/2lbkoyn.

[29] Administrative Court of Lazio, Decision 9909/2016, 22 September 2016; Decision 11911/2016, 28 November 2016, available in Italian at: http://bit.ly/2lOS7AX.

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

[31]  According to the rule provided in Article 4(3) Decree Law 13/2017, as amended by L 46/2017, this also applies to asylum appeals as it generally refers to “accommodated applicants”.

[32]  Court of Cassation, decisions 18755/2019; 18756/2019 and 18757/2019, issued on 12 July 2019.

[33] Court of Cassation, decision 31127/2019 of 14 November 2019

[34] Article 3(3-quater) and (3-octies) Procedure Decree, as amended by Article 6 Decree Law 13/2017 and L 46/2017.

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

[36] Article 3(3-quinquies) and (3-sexies) Procedure Decree, as amended by Article 6 Decree Law 13/2017 and L 46/2017.

[37] Article 3(3-septies) Procedure Decree, as amended by Article 6 Decree Law 13/2017 and L 46/2017.

[38] Council of State, Decision 4004/2016, 27 September 2016, available in Italian at: http://bit.ly/2kWlO1d.

[39]  Council of State, Decisions 3998/2016, 3999/2016, 4000/2016 and 4002/2016, 27 September 2016, available in Italian at: http://bit.ly/2llJzAR.

[40]  Ibid. The Council of State referred in particular to the fifth report on Bulgaria of the European Commission against Racism and Intolerance (ECRI), 16 September 2014.

[41] Council of State, Decision 5085/2017, 3 November 2017, available in Italian at: http://bit.ly/2GKtcVA.

[42] Civil Court of Rome, Decision 15692/2018, 31 October 2018.

[43] Civil Court of Rome, Decision 982/2019, 9 January 2019.

[44] Civil Court of Rome, Decision 3289/2019, 7 February 2019.

[45] Ministry of Interior Circular of 14 January 2019, available in Italian at: https://bit.ly/2P7G5OZ.

[46]  In a ruling concerning an Afghan family with 6 children who were initially hosted in a CARA in Bari before travelling to Austria and then Switzerland, the ECtHR found that Switzerland would have breached Article 3 ECHR if it had returned the family to Italy without having obtained individual guarantees by the Italian authorities on the adequacy of the specific conditions in which they would receive the applicants. The Court stated that it is “incumbent on the Swiss authorities to obtain assurances from their Italian counterparts that on their arrival in Italy the applicants will be received in facilities and in conditions adapted to the age of the children, and that the family will be kept together.”: ECtHR, Tarakhel v. Switzerland, Application No 29217/12, Judgment of 4 November 2014, para 120. 

[47]  See e.g. Dublin Unit, Circular: Dublin Regulation Nr. 604/2013. Vulnerable cases. Family in SPRAR projects, 4 July 2018, available at: https://bit.ly/2OwblGT.

[48]  Dublin Unit, Circular No 1/2019, 8 January 2019.

[49] ECRE, The implementation of the Dublin III Regulation in 2018, March 2019, available at: https://bit.ly/2G7KZsk, 18.

[50] See ASGI, Svizzera, no al rinvio in Italia dopo il Decreto sicurezza, 16 January 2020, available in Italian at : https://bit.ly/3cWAiql.

[51]   Information to the author from Waldensian Diaconia (operating in Milan Malpensa airport), contacts of the project available at: https://migranti.diaconiavaldese.org/progetti/#

and from “ A Buon Diritto”, operating at Tiburtina Station, Rome, Ngo website: https://www.abuondiritto.it/

[52]   Information provided to the author by Waldensian Diaconia of Milan.

[53]  Danish Refugee Council and Swiss Refugee Council, Mutual Trust is still not enough, December 2018, available at: https://bit.ly/2GdnxMj. See also Is mutual trust enough? – The situation of persons with special reception needs upon return to Italy, February 2017, available at: http://bit.ly/2kWjtTT.

[54]  Ibid.

[55] According to Articles 13 and 23(1) Reception Decree, the withdrawal of reception conditions can be decided when the asylum seeker leaves the centre without notifying the competent Prefecture. See also ASGI, Il sistema Dublino e l’Italia, un rapporto in bilico, March 2015.

[56]  Danish Refugee Council and Swiss Refugee Council, Mutual Trust is still not enough, December 2018.

[57]          Friulisera, ‘Tragedia alla ex Caserma Cavarzerano di Udine’, 1 September 2018, available in Italian at: http://bit.ly/2HxRlST; Meltingpot ,’Si muore nei confini, su muore in mare, si muore nei campi e si muore anche nei CAS’, 14 August 2018, available in Italian at: http://bit.ly/2XXnSrj

[58] Swiss Refugee Council, Reception conditions in Italy:

Updated report on the situation of asylum seekers and beneficiaries of protection, in particular Dublin returnees, in Italy, January 2020, available at: https://bit.ly/3cSzToZ.

[59] Danish Refugee Council and Swiss Refugee Council, Mutual Trust is still not enough, December 2018.

[60] For more details, see ASGI, Il sistema Dublino e l’Italia, un rapporto in bilico, 2015, available in Italian at: http://bit.ly/2kHOmvX, 28.

[61]  Article 13 Dublin III Regulation.

[62] Article 18(1)(c) Dublin III Regulation.

[63]  Article 18(1)(d) Dublin III Regulation.

[64] Article 11(3-ter) and (3-quater) Procedure Decree, as amended by Article 6 Decree Law 13/2017 and L 46/2017.

[65]  ECRE, The implementation of the Dublin III Regulation in 2018, March 2019, available at: https://bit.ly/2G7KZsk, 19.

[66] United Kingdom Upper Tribunal, SM v Secretary of State for the Home Department [2018] UKUT 429 (IAC), 4  December 2018, available at: http://bit.ly/2O8aLPG.

 

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