Subsequent applications

Italy

Country Report: Subsequent applications Last updated: 30/11/20

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Article 31 of the Procedure allows the applicant to make further submissions and present new documentation at any stage of the asylum procedure. These elements are taken into consideration by the Territorial Commission in the initial procedure.

Decree Law 113/2018, implemented by L 132/2018, has introduced a definition of “subsequent application” (domanda reiterata).[1] An asylum application is considered a subsequent application where it is made after:

  • A final decision has been taken on the previous application;
  • The previous application has been explicitly withdrawn;[2]
  • The previous application has been terminated or rejected after the expiry of 12 months from suspension on the basis that the applicant was unreachable (irreperibile).[3]

In case of subsequent applications, asylum seekers benefit from the same legal guarantees provided for asylum seekers in general and can be accommodated in reception centres, if places are available.

Subsequent applications have to be lodged before the Questura, which starts a new formal registration that will be forwarded to the competent Territorial Commission.

 

Preliminary admissibility assessment

 

As stated in Accelerated Procedure, upon the transmission without delay of the application by the Questura, the Territorial Commission has 5 days to decide on the subsequent application.[4]

The President of the Territorial Commission makes a preliminary assessment in order to evaluate whether new elements concerning the personal condition of the asylum seeker or the situation in his or her country of origin have been added to the asylum application.[5] Where no new elements are identified, the application is dismissed as inadmissible (see Admissibility Procedure). The possibility in the law for the applicant to submit observations to the Territorial Commission within 3 days has been removed by Decree Law 113/2018.[6]

In case the subsequent application is declared inadmissible, reception conditions can be revoked.[7]

 

Automatically inadmissible subsequent applications

 

In addition, Decree Law 113/2018 has introduced a new provision governing “subsequent applications during the execution phase of a removal procedure” (domanda reiterata in fase di esecuzione di un provvedimento di allontanamento). Where the applicant makes a first subsequent application during the execution of imminent removal, the application is automatically considered inadmissible on the assumption that it is made with the sole purpose of delaying or preventing the execution of the removal order. Consequently, a preliminary admissibility assessment is not conducted.[8]

The law does not clarify how the term “execution phase of a removal procedure” should be interpreted. If this provision is not strictly applied to cases in which the removal is actually being performed, it is likely to result in preventing the asylum application itself as it could be applied to all cases of subsequent applications as currently defined by law. In case of subsequent applications considered as such because they were made after the termination of the procedure through a decision of the Territorial Commission, 12 months after the applicant left a reception centre or escaped from detention without having had any personal interview, the provision potentially prevents the examination of the reasons for escaping or leaving reception accommodation. In such case, it would also mean that the asylum application would never be subject to any examination.

In practice, the notion of “execution phase of a removal procedure” seems to be read widely. Already in early 2019, the Territorial Commissions of Salerno, Campania and Turin, Piedmont have declared a subsequent application inadmissible pursuant to Article 29-bis of the Procedure Decree at least in two cases of people who applied again for international protection while being held in a CPR. At the same time, during 2019 in many cases the rule has also been applied to people who spontaneously have gone to the Questura to present the subsequent asylum applications as most of them had already received an expulsion order.

The law also stops short of specifying whether inadmissibility should be declared by the Questura or by the Territorial Commission. The Ministry of Interior Circular of 18 January 2019 contained a template form that the Questure should fill in while delivering a copy to the person concerned.[9] The template form also mentioned that a copy of the act shall be transmitted to the competent Territorial Commission. The template does not provide any indication on deadlines or competent authorities for an appeal.

As a result, during 2019, several times the Questure declared subsequent applications automatically inadmissible without involving in the procedure the competent Territorial Commission and without even mentioning the terms or competent authority for the appeal.

On 3 April 2019, the Civil Court of Rome, accepting an appeal urgently filed by a Nigerian woman whose subsequent asylum application, presented during the detention in the CPR of Ponte Galeria, had been deemed inadmissible by the Questura, observed that, according to the Procedure Decree[10] only the Territorial Commission and not the Questura should have assessed whether the subsequent application fell within the scope of art. 29-bis. Consequently, the Civil Court ordered to release the applicant from the CPR and it ordered the Questura to receive her asylum application and forward it to the Territorial Commission responsible to decide if to evaluate it..[11]

On 13 November 2019, the Civil Court of Milan ordered the competent Territorial Commission to conduct the preliminary examination of a subsequent application deemed inadmissible directly by the Questura pursuant to Article 29 bis of the Procedure Decree, disapplying this rule considered not in accordance with Article 40 of the recast Asylum Procedure Directive.[12]

Later, on 13 January 2020, a MoI Circular specified that the template notified to the applicant by Questure has the sole task of “informing” the interested party of the existence of the rule in question but that the decision on the inadmissibility is still up to the competent Territorial Commission.[13]

In 2019 the number of subsequent applications was 8,778.[14]

 

Right to remain and suspensive effect

 

The Procedure Decree, as amended by Decree Law 113/2018, provides that the right to remain on the territory until a decision is taken by the Territorial Commission is not guaranteed where the applicant:

  1. Made a first subsequent application for the sole purpose of delaying or preventing the execution of an imminent removal decision;[15]
  2. Wishes to make a further subsequent application following a final decision declaring the first subsequent application inadmissible, unfounded or manifestly unfounded.[16]

The law does not foresee a specific procedure to appeal against a decision on inadmissibility for subsequent applications. The amended Procedure Decree provides, however, that an appeal against an inadmissibility decision on a subsequent application never has suspensive effect, whether automatic or upon request.[17] However, the appellant can request a suspension of the decision of inadmissibility, based on serious and well-founded reasons, to the competent court.

The exclusion of the suspensive effect in the event of an appeal with a suspension request – also confirmed by the MoI Circular of 13 January 2020[18] – appears illegitimate because it is contrary to the Article 41 of the Directive 2013/32/EU which expressly indicates the cases in which it is possible to derogate from the right to remain on the territory pending the final decision of the Judge on the suspension request.[19]

For the rest of the appeal procedure, the same provisions as for the appeal in the regular procedure apply (see Regular Procedure: Appeal).

 


[1] Article 2(1)(b-bis) Procedure Decree, introduced by Article 9 Decree Law 113/2018 and L 132/2018.

[2] Article 23 Procedure Decree.

[3] Article 23-bis(2) Procedure Decree.

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

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

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

[7] Article 23(1) Reception Decree.

[8] Article 29-bis Procedure Decree, inserted by Article 9 Decree Law 113/2018.

[9] Ministry of Interior Circular No 10380/2019 of 18 January 2019.

[10] Article 3 of the Procedure Decree

[11] Civil Court of Rome, order of 3 April 2019, available in Italian at: https://bit.ly/36pE6OF.

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

[13] MoI Circular of 13 January 2020, available in Italian at: https://bit.ly/3c0TEJL.

[14] MoI citing data from CNDA, available in Italian at: https://bit.ly/3geAt2B.

[15] Article 7(2)(d) Procedure Decree.

[16] Article 7(2)(e) Procedure Decree, as amended by Article 9 Decree Law 113/2018 and L 132/2018.

[17]  Article 35-bis(3) and (5) Procedure Decree, as amended by Article 9 Decree Law 113/2018 and L 132/2018. Prior to the 2018 reform, the Procedure Decree stated that suspensive effect was not granted for appeals against the inadmissibility of a second subsequent application.

[18]  MoI Circular 13 January 2020, available in Italian at: https://bit.ly/36yrkgQ.

[19] See Le nuove procedure accelerate:  lo svilimento del diritto di asilo, 3 November 2019, available in Italian at: https://bit.ly/2Zu94Uh.

 

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