Author
Travel documents for beneficiaries of international protection are regulated by Article 24 of the Qualification Decree.
For refugees, the provision refers to the 1951 Refugee Convention and states that travel documents (documenti di viaggio) issued are valid for 5 years and are renewable. The issuance of travel documents is refused by Questura, or, if already issued, the document is withdrawn, if there are very serious reasons relating to national security and public order that prevent its release. In practice, travel documents are usually issued automatically to beneficiaries of refugee status by Questure.
On 20 December 2018 the Regional Administrative Court of Florence examined a case in which the Questura of Pistoia refused the renewal of the travel document to a Nigerian refugee due to the fact that the latter had never complied with the payment of a pecuniary penalty – established with a sentence of 4 years imprisonment and a fine of 20,000 euros for the crime of drug dealing – and, according to the Questura, pursuant to art. 3 lett. d) of Law 21 November 1967, n. 1185, it is not allowed to issue a passport to those who have not paid a fine established with a sentence. The Court, upholding the appeal, deemed the refusal to renew the travel document illegitimate, considering that refugees have a special status, aimed at the maximum protection of this category of people also through the complete regulation of the case in question of the issue of a travel document, with the consequence of the inapplicability of the aforementioned cause hindering the issue of a passport to the citizen also to the similar issue of a “travel document” to the refugee pursuant to art. 24 of the Qualification Decree. In fact, the Court held that the normal exercise of the State’s punitive power and the related need to ensure the effectiveness of the punishment (in this case, however, a pecuniary one) for a common crime, such as drug dealing, cannot be included among the “very serious reasons relating to national security and public order” which can legitimize the refusal to issue the travel document. This could be the case, on the contrary, of subjects convicted or suspected of very serious crimes against the personality of the State or related to terrorism, or, more generally, when the behaviour of the refugee constitutes a real, current and particularly serious threat to a fundamental interest of society or to the internal or external security of the State. Therefore, the provisions of art. 24(3) of the Qualification Decree, in limiting to exceptional cases the refusal to issue a travel permit to a refugee, cannot be subject to corrective interpretations, nor does it seem to require interventions by the Constitutional Court for violation of art. 3 of the Constitution, since this regulatory provision is the implementation by the national legislator of an international obligation (pursuant to art. 117, paragraph 1, of the Constitution) to protect the fundamental rights of refugees.[1]
On 23 February 2020, the Civil Court of Florence examined the case of a Somali refugee to whom the Questura of Florence did not issue a travel document, opposing a long silence after 2 years from the lodging of the request. The Court upheld the appeal ordering Questura to issue the travel document, after examining passport legislation in the light of the provisions of the 1951 Geneva Convention on refugees, whose art. 28 excludes the issuance of a travel document only for reasons of state security or public order.[2]
When there are well-founded reasons that do not allow the beneficiary of subsidiary protection to request a passport from the diplomatic authorities of the country of citizenship, the competent Questura issues a travel permit (titolo di viaggio, as opposed to the travel document, documento di viaggio, issued to refugees) to the person concerned. When applying for a travel permit in Questura, beneficiaries of subsidiary protection must therefore submit a note or documentation explaining why they cannot apply for or obtain a passport from the authorities of their countries of origin. Beneficiaries of subsidiary protection whose diplomatic or consular authorities are not present in Italy are usually issued a travel permit by Questura.
The administrative procedure aimed at issuing the travel document can be activated upon request of the beneficiary of subsidiary protection (and, as explained below, of the beneficiary of humanitarian/special protection). Questura is required not only to receive the request for the issuance of the travel document but also to assess the request and adopt an express decision on the application.[3] As for the competence to deal with disputes relating to the failure to issue the travel document for refugees, beneficiaries of subsidiary protection and of humanitarian/special protection alike, although there is no lack of rulings by the ordinary judge (see above, inter alia, the decision of the Regional Administrative Court of Florence), the administrative jurisprudence has affirmed its competence by recalling art. 133, paragraph 1, letter u), of the c.p.a. which attributes to the exclusive jurisdiction of the administrative judge disputes concerning the provisions relating to passports as well as art. 21 of Law 21 November 1967, n. 1185, which also refers to the documents, equivalent to the passport, in favour of foreigners and stateless persons.[4]
With regard to the prerequisites for the issuance of the travel document, as already mentioned above, it is indisputable that for the beneficiary of subsidiary protection it is sufficient to state the well-founded reasons why he/she cannot apply to the diplomatic representation of his/her country of origin to request the passport, reasons that can be found in the grounds for applying for international protection or in the conduct of the authorities of the country of origin. Beneficiaries of subsidiary protection can thus invoke, inter alia, reasons linked to their status and to their international protection claim to the procedures applied by their embassies or to the lack of documentation requested, such as original identity cards or birth certificates. Evidence, such as a written note from the embassy refusing a passport, is not required but helpful if provided. The Questura usually verifies whether the person concerned in fact is not in possession of these documents, looking at the documents he or she provided during the international protection procedure. In some cases, immigration offices contact the embassies asking for confirmation of the reported procedure. The applicant assumes responsibility, under criminal law, for his or her statements. The Questura can reject the application lodged by beneficiaries of international protection if the reasons adduced are deemed unfounded or not confirmed by embassies. According to the law, if there are reasonable grounds to doubt the identity of the beneficiary of subsidiary protection, the document is refused or withdrawn by Questura. However, the administrative case-law has established that it appears contradictory to attribute a status to a subject and deny the same subject one of the concrete projections of this status (in this case, the travel permit) due to a profile (that of identity) that pertains to the very core of this type of administrative measures considering that in the absence of certainty about the applicant’s identity, the Commission could not have granted the requested protection and the Questura issued the relative residence permit.[5]
Important to note is that, while the travel document issued to refugees is valid for all countries recognized by the Italian State, excluding the country of citizenship of the refugee, Italian law does not prohibit beneficiaries of subsidiary protection from using the Italian travel permit to go back to their country of origin. However, after the 2018 reform each return to the country of origin can cause the starting of a cessation procedure (See Cessation).
For beneficiaries of national protection (either the former humanitarian protection or the current special protection, please consider that for the latter no jurisprudence is available at the moment of writing), already back in 1961 the Ministry of Foreign Affairs and International Cooperation with Circular n. 48[6] clarified that third country nationals who do not have the qualification of refugees and who, for various reasons, cannot obtain the passport from the authorities of their country of origin, will be issued a new document, in the shape of a light green booklet, called “Travel permit for third-country nationals”. The Ministry further stated that the granting of the document may take place, except in cases of urgent necessity, only after the interested party has proved that he/she is unable to obtain a passport from the authorities of his/her country and that he/she has no pending lawsuits or obligations towards the family. In 2003 the Ministry of Interior,[7] – following up on clarification requests received by several Questure on the renewal of humanitarian protection residence permits for those who continue to be without a passport or equivalent document or who, although possessing it at the time of the first release, no longer possess it or its validity has expired – underlined that beneficiaries of humanitarian protection are allowed to remain in Italy by reason of their particular objective situation which is connected, on the basis of elements assessed by the Territorial Commissions, to a concrete exposure to risks to personal safety or to the exercise of fundamental personal rights, and that by its very nature, this situation, although not attributable to that of a refugee, often precludes the issuance of a passport by the authorities of the country of origin, also depriving the individual of the right to travel abroad. The Ministry then, recalling that the above-mentioned circular by the Ministry of Foreign Affairs had never been repealed, reiterated to the Questure that the release of travel permits for beneficiaries of national protection has to be granted, adding that otherwise there would be a reduction of the rights recognized to legally residing third-country nationals also in relation to the Italian Constitution.
However, on several instances Questure have practically hindered the issuance of travel permits for beneficiaries of subsidiary protection and national protection through illegitimate practices which have been generally sanctioned by the resulting case-law, as proven by the collected jurisprudence here below.
On 10 October 2019, the Regional Administrative Court of Sardinia accepted an appeal lodged against the refusal of the Questura of Cagliari to issue a travel document to a Malian beneficiary of subsidiary protection, due to alleged doubts concerning his identity. The Court considered the doubts of Questura regarding the applicant’s identity unfounded as he had corrected his personal data during the hearing before the competent Territorial Commission.[8]
The same Regional Administrative Court issued a similar decision on 26 February 2020, again ordering the Questura of Cagliari to issue a travel document to a Malian beneficiary of subsidiary protection who could not get a passport from his embassy and to whom the Questura had denied the issuance of the requested travel permit, despite the submission by the applicant of a statement by the Malian diplomatic authorities attesting the impossibility to issue a passport in Italy, despite having recognized the Malian citizenship of the person concerned. The Court found the prerequisites for the application of article 24 Qualification Decree, considering that for the Italian system the applicant is already the holder of a ‘peculiar’ residence permit, an identity card, health card and tax code, by virtue of the recognition of subsidiary protection.[9]
One month earlier, on 31 January 2020 the Civil Court of Brescia censured the Questura of Brescia’s refusal to issue a residence permit for subsidiary protection (recognized by the Territorial Commission) due to the applicant’s lack of passport. The Court ruled out the possibility that the issuance of a residence permit for subsidiary protection could be conditioned by the possession of a passport. According to the Court, the passport may be relevant if the beneficiary of protection applies for a travel permit, as per art. 24 Qualification Decree, indicating the well-founded reasons for the impossibility of obtaining it from the authorities of the country of origin, but this is a completely different case from the one contemplated in art. 23. The Court, and hereby the relevance of that judgment to the subject matter, also points out that the passport cannot be attributed the identification purpose proposed by the Ministry of Justice, since the applicant had already been identified several times during the international protection procedure and has a CUI and Vestanet code, on the basis of the documentation already in possession of the same Questura and of the competent Territorial Commission for the Recognition of International Protection.[10]
The subject at hand was examined on at least three occasions by the Council of State as well. The Court ruled, on 24 September 2015, on the applicability of art. 24 Qualification Decree also for beneficiaries of humanitarian protection, and affirmed that such provision expressly requires, as a prerequisite for the issue of a travel document for third-country nationals, the existence of well-founded reasons that do not allow the applicant to obtain the passport from the diplomatic authorities of the country of origin. The Council of State established that the beneficiary must indicate the reasons that do not allow him or her to apply for a passport to the diplomatic authorities of his country, because they are not obvious in the case examined, and that in the absence of such reasons, the denial of the travel permit is justified and legitimate on the basis of the legal provisions cited above, which require not only that reasons be given, but also that they appear to be well-founded.[11]
On 27 February 2020 the Council of State[12] once again intervened on the subject of travel permits for beneficiaries of humanitarian protection, stating that the constitutionally oriented interpretation of the protection system provided for by the Qualification Decree, entails the extension of the provision set forth in art. 24 of the aforementioned decree even to beneficiaries of humanitarian protection if there are well-founded reasons preventing them from obtaining a passport by the authorities of their countries of origin, as also confirmed by the above-mentioned Circulars of the Ministry of Foreign Affairs and International Cooperation and the Ministry of Interior.
On 27 July 2018, the Council of State examined the case of a Nigerien beneficiary of humanitarian protection who was refused the renewal of the travel permit despite having submitted a written statement of the Embassy of Niger stating that such authority was not authorised to issue the passport. Such case was one deriving from the long-established practice by the Questura of Rome to issue travel permits for beneficiaries of humanitarian protection only once, on the assumption that the travel permit must be used by beneficiaries in order to reach their country of origin in order to obtain the passport. The Court, confirming that the prerequisite of the ‘well-founded reasons’ was satisfied by the attestation submitted by the applicant, noted that in the case examined the applicant had already obtained a travel document from the Rome Questura on the basis of such reasons. The Court then found that the challenged denial from the Questure was in contradiction with what was previously decided by the same authority.[13]
[1] Regional Administrative Court of Florence, Decision 34/2018, 20 December 2018, available at: https://bit.ly/3q8LBEH.
[2] Civil Court of Florence, Decision 13202/2019, 23 February 2020, available at: https://bit.ly/34OdsT1.
[3] Regional Administrative Court of Catania, Decision 179/2015, available in Italian at: https://bit.ly/3Ijcs7f.
[4] Regional Administrative Court of Rome, Decision 7390/2014, 30 September 2015, available at: https://bit.ly/3JeiIOR; Regional Administrative Court of Rome, Decision 7768/2011, 2 March 2015, available at: https://bit.ly/3thuPFe.
[5] Regional Administrative Court of Lazio, Decision 11465/2015, 30 September 2015, available at: https://bit.ly/3uoT2sP.
[6] Ministry of Foreign Affairs and International Cooperation, Circular n. 48 – Travel permit for third-country nationals, 5 March 2004, available at: https://bit.ly/36pZPtU.
[7] Ministry of Interior, Circular n. N.300/C/2003/331/P/12.214.5/1^DIV – On provisions regarding the renewal of residence permits for humanitarian reasons, 24 February 2003, available at: https://bit.ly/3MUe62N.
[8] Regional Administrative Court of Sardinia, interim decision 260/2019, 10 October 2019.
[9] Regional Administrative Court of Sardinia, interim decision 44/2020, 26 February 2020.
[10] Civil Court of Brescia, Decision 18250/2019, 31 January 2020, available at: https://bit.ly/3u3CyWE.
[11] Council of State, Section III, Decision No 451, 4 February 2016, available in Italian at: http://bit.ly/2k5xcFS.
[12] Council of State, Section III, Decision N. 528, 27 February 2020, available in Italian at: https://bit.ly/34OdsT1.
[13] Council of State, Section III, Decision N. 3552, 27 July 2018, available in Italian at: https://bit.ly/3ie9PZF.