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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 The issuance of travel documents is refused by Questura, or, if already issued, the document is withdrawn, if there are very serious reasons relating to national security and public order that prevent its release.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 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.[1]
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.[2] 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.[3]
Regarding the prerequisites for the issuance of the travel document, as already mentioned, 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.[4]
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 opening of the 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[5] 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,[6] – 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 mentioned in the previous reports (See AIDA Country Report on Italy – 2021 Update).
Significantly, on 13 July 2022, the Council of State upheld the appeal submitted by a holder of national protection who was refused a travel document as he had not proven the impossibility to obtain such document from his embassy. The Council of State evaluated that the impossibility of contacting authorities from the country of origin in order to obtain the travel document cannot be understood as only including those cases where the contact or return of the foreigner to his country of origin would expose him to serious risks for his own safety, but it must be extended to all those circumstances in which the bureaucratic systems of the country of origin make it impossible for the citizen to obtain the requested document. With the same decision, the Council of State clarified that Article 24 (3) of the Procedures Decree concerning the subsidiary protection status, applicable by analogy to the case under its exam, allows the issuance of the travel document if there are no imperative reasons of national security “or” public order, while it is not enough to refuse it automatically referring to the mere existence of a criminal record.[7]
[1] Civil Court of Florence, Decision 13202/2019, 23 February 2020, available at: https://bit.ly/34OdsT1.
[2] Regional Administrative Court of Catania, Decision 179/2015, available in Italian at: https://bit.ly/3Ijcs7f.
[3] 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.
[4] Regional Administrative Court of Lazio, Decision 11465/2015, 30 September 2015, available at: https://bit.ly/3uoT2sP.
[5] 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.
[6] 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.
[7] Council of State, Decision 5947 published on 13 July 2022, available at: bit.ly/3q0Mt0M.